"Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment"

Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Cal. L. Rev. 297 (1988).

Post's article is ultimately concerned with resolving the question of whether pornography can be legitimately banned under the free speech guarantee of the American Constitution. Although this topic is outside the scope of Legal Heresy, Post sets up an interesting theoretical framework to analyze the pornography issue through an examination of English and American blasphemy law. Post's thesis is that moral issues in countries composed of heterogeneous groups can be resolved in three ways: "The law can place the authority of legal sanctions behind the cultural perspectives of a dominant group; or it can foster a regime in which diverse groups can escape from such domination and maintain their distinctive values; or it can ignore group values and perspectives altogether and recognize only the claims of individuals. I shall call these three options, respectively, assimilationism, pluralism, and individualism." (p. 299) Post explains that legal regimes are rarely uniform in approach across various issues, and then goes on to note that the approach taken to a particular legal issue can evolve over time.

In a discussion on the history of blasphemy law in England, for example, Post argues that "[u]ntil quite recently . . . the crime of blasphemy was a paradigmatic example of assimilationist law . . . [since] Christians were the dominant group in England, and blasphemy made Christian values 'parcel of the laws' in England." (p. 307) However, Lord Scarman's opinion in the famous Lemon case in 1979 was an attempt to ground the justification for blasphemy laws in a pluralist foundation: "[Scarman] wanted to use the Lemon case as a platform to urge that the common law be changed by legislation to protect the sensibilities of all religious groups." (p. 312) Post critiques the idea that blasphemy laws can be justified by reference to pluralist values, noting that different religious groups respond to criticism and offense in vastly different manners. (p. 313)

In his discussion of the history of blasphemy law in the United States, Post notes that, despite constitutional guarantees of free speech and freedom of religion in State constitutions, courts almost uniformly upheld blasphemy laws until the late 1960s. Post argues that the original American judicial defense of blasphemy laws were on the same assimilationist lines as that of English courts, but a major change occurred when the Cantwell case developed the First Amendment on individualistic, not pluralist or assimilationist lines.

In conclusion, Post's article provides a fruitful way to organize and understand the assumptions underlying the various justifications for prohibiting blasphemy that have been offered over the last several decades.

"Ireland's Secular Revolution: The Waning Influence of the Catholic Church and the Future of Ireland's Blasphemy Law"

Kathryn A. O'Brien, Comment, Ireland's Secular Revolution: The Waning Influence of the Catholic Church and the Future of Ireland's Blasphemy Law, 18 Conn. J. Int'l L. 395 (2002)

O'Brien's article explores the influence of the Catholic Church in Ireland and discusses the legal status of blasphemy. For the latter, she notes that prior to the 1996 Corway case (in which the country's Supreme Court held that the constitutional reference to blasphemy could not be enforced in the absence of legislation), there had only been three known blasphemy prosecutions since 1703. Although recent events (the passage of a blasphemy statute) have dated the blasphemy discussion, the article does provide a brief overview of the subject in English history, European Union law, and the Corway decision. Other articles are more thorough on each of these subjects, so of more interest to most readers is the examination of events pointing to an increasingly secular society in Ireland. O'Brien discusses various provisions of the Irish Constitution referencing religion, and then notes that the country has become more liberal in areas like divorce (a 1995 referendum allowed it for the first time), gay and lesbian rights (homosexuality was decriminalized in 1993), and (to a lesser degree) abortion (judicially sanctioned in very rare circumstances). According to O'Brien, each of these trends occured despite strong opposition from the Catholic Church.

Controversy Over Islamic Prayers at Ontario School

The Toronto Star has published multiple articles recently over a controversial practice at Valley Park Middle School in Toronto. The school has set aside the cafeteria after lunch on Fridays to be used for Islamic prayers. The prayers take place during normal school hours, but are not delivered or supervised by school employees. Supporters argue that is a reasonable accommodation for Valley Park's large Muslim student population (which used to leave school grounds for Friday prayers), while critics argue that public schools must remain secular and that the prayers reinforce sex discrimination, as female students sit behind male students, and menstruating girls are expected to observe but not participate.

"Blasphemy" (Columbia Law Review Note)

Student Note, Blasphemy, 70 Colum. L. Rev 694 (1970).

This is a thorough, well-researched history of blasphemy in England and the United States, written with the goal of examining whether State-level blasphemy laws are constitutional under the First Amendment. In order to answer this question, the anonymous author attempts to set forth the original and current purposes of blasphemy prohibitions to decide whether those purposes are religious or secular. Several prominent English blasphemy cases are discussed, including Taylor's Case, Woolston, Ramsay, Cowan, and Gott (this article was written prior to the prosecution of Kirkup's The Love That Dares to Speak Its Name in the late 70s). After examining these cases, the author concludes that "English history provides no single determinative rationale for blasphemy laws. ... [T]he cases illustrate reliance on almost every conceivable principle." (p. 702). Next, the author examines a handful of major American blasphemy cases, such as Ruggles, Updegraph, Chandler, Kneeland, and Mockus. The final section of the article is a long and detailed discussion of how blasphemy laws should fare under the Free Exercise, Establishment, and Free Speech clauses of the Constitution. This section is probably of less use to modern scholars, given how Supreme Court doctrine in these areas has changed in the past 40 years. In a brief conclusion, the author writes that "Blasphemy laws are one of the last remnants of an established church, and in protecting the religious from verbal affront, they significantly curtail the freedom of expression of others." (p. 733)

"Divided by God: America's Church-State Problem and What We Should Do About It"

Noah Feldman, Divided by God: America's Church-State Problem and What We Should Do About It (NY: Farrar, Straus and Giroux, 2005)

Feldman's 2005 book is a concise, readable history of the relationship between church and state in American politics. Although Feldman skims past some of the legal intricacies that might interest legal scholars, on the whole this is a well-researched synthesis of various facets of American constitutional and religious history. It would serve as an excellent introduction for lay-persons or as a refresher for experts. In terms of original insights, Feldman persuasively argues that modern American politics in this area can be viewed as a struggle between two groups with very different ideological committments: "values evangelicals" who seek to ground civic life in a (non-particularist) understanding of religiously-shared values, and "legal secularists" who endeavour to remove religious considerations from public life. Feldman classes church-state issues in two different categories: those involving the allocation of public funds for religious purposes, and those involving purely symbolic government endorsement of religion. Through an analysis of Supreme Court caselaw, he shows that government funding issues have received increasingly favorable treatment by the courts, while a fairly strong condemnation remains of religious endorsement. According to Feldman, this is exactly the opposite situation envisioned by the Framers, who were extremely concerned about taxpayers' consciences but unconcerned with non-coercive endorsement. Thus, in order to put an end to our seemingly never-ending battle between values evangelicals and legal secularists, Feldman suggests that the former should denounce government funding initiatives and the latter should accept non-coercive government endorsement of religious symbols and precepts. Although I find this solution somewhat naive and impractical given the respective sides' entrenched committments, Feldman's book is a worthy contribution to the field.