Bowman v. Secular Society (1917)

Bowman v. Secular Society, [1917] A.C. 406. (UK House of Lords)

Bowman is one of the most important law and religion cases in the history of England. The case conclusively established two key points: (1) Blasphemous libel consists only in scurrilous or profane attacks on Christianity, not in temperate or reasoned criticism (thus resolving the debate between Coleridge and Stephen in the former's favor); and (2) A denial of the truth of Christianity does not render a person or organization unable to claim the benefit and protection of the civil law (thus overruling Cowan v. Milbourn (1867) L.R. 2 Ex. 230 and the famous statement in that case that "a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it.")). The five separate opinions are lengthy but contain a valuable exposition and analysis of the history of blasphemy in English law.

The facts of the case are straightforward. In 1908, a man named Charles Bowman died. His will bequeathed a portion of his estate to the Secular Society Limited, an association incorporated under the Companies Acts with the stated object to "promote, in such ways as may from time to time be determined, the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action." Bowman's next of kin disputed the validity of the gift to the Society, arguing that the objects of the Society were unlawful insofar as they constituted a blasphemous libel and therefore the gift was contrary to public policy and invalid.

The case was heard before five members of the House of Lords.

Lord Finlay began by examining in detail the purposes of the Secular Society as contained in the group's memorandum of association. He concluded that as a whole "[t]his amounts to a negation of all religion, including, of course, the Christian religion, as governing human conduct." (p. 420) He stated that the core issue in the case was "[i]s a legacy in favour of a society which exists for such a purpose enforceable by English law?" (p. 420). In the course of his analysis, he dispensed with the argument that the Society's goals constituted blasphemy: "I think we must hold that the law of England on this point is the same as that of Scotland, and that the crime of blasphemy is not constituted by a temperate attack on religion in which the decencies of controversy are maintained." (p. 423) Finlay then turned to a discussion of Cowan v. Milbourn and Briggs v. Hartley. He concluded that "[t]he authority of these two decisions has never, so far as I am aware, been questioned in any later case" (p. 426) and that "[i]t has been repeatedly laid down by the Courts that Christianity is part of the law of the land" and that this "is quite sufficient reason for holding that the law will not help endeavours to undermine it." (p. 428) Thus, Finlay concluded that there was "a definite rule of law to the effect that any purpose hostile to Christianity is illegal" and that therefore the Society could not benefit from the gift. (p. 432)

Lord Dunedin agreed with every other Lord hearing the case that the crime of blasphemy requires profane or irreverent attacks. On the more contested issue relating to whether the Society could receive the money if its stated goal was to criticize Christianity, he argued that the Society should be treated just as if it were an individual about to receive a bequest who could in theory use the money for both legal and illegal goals: "If the legacy were due to an individual, the executor would not be heard to discuss the probable uses to which the legatee would put the money. I do not think he can do so in the case of the society. For after all . . . there is no reason why the society should not employ the money in paying its office rent." (p. 435-36). Thus, Dunedin concluded the Society should receive the money.

Lord Parker of Waddington stated that the common law "takes no notice whatever of the donor's motive in making the gift or of the purposes for which he intends the property to be applied by the donee" and that "[a] gift at common law is never executory in the sense that it requires the intervention of the Court to enforce it." (p. 436) He then conducted a long and thorough analysis of whether the Society should be considered a trustee and thus held to stricter standards before concluding that it should not. On the issue of blasphemy, Lord Parker agreed with the others that "to constitute blasphemy at common law there must be an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace." (p. 446) He went on to hold that although the Society's goals were "no doubt, anti-Christian", that there was nothing unlawful or contrary to public policy in those goals. (p. 451)

Lord Sumner argued that "the law must presume that what is legal will be done, if anything legal can be done under [the Society's] memorandum [of association]." (p. 453) Sumner conducted a long analysis of the history of blasphemy in English common law and concluded "there is no instance recorded of a conviction for a blasphemous libel, from which the fact, or at any rate, the supposition of the fact, of contumely and ribaldry has been absent" (p. 460). After analyzing these and other authorities, he stated that "the phrase 'Christiantiy is part of the law of England' is really not law; it is rhetoric" (p. 463) and that therefore the Society was a lawful recipient of the gift.

Last, Lord Buckmaster also rejected the idea that the Society's goals were necessarily blasphemous because they involved a denial of the Christian religion. "To do so would involve the conclusion that all adverse critical examination of the doctrines of Christianity--even though it was conducted with the utmost reverence--was a blasphemous publication . . . It would, indeed, be hard to find a worse service that could be done to the Christian faith than to prevent people from explaining and inviting an answer to the reasoned convictions that led them to question its truth." (p. 470) The Society's goals were thus not illegal or unlawful.

The effect of the separate opinions was that all five of the Lords agreed that blasphemy required an element of irreverence or profanity, and four of the five Lords held that Cowan should be overruled.

"Blasphemy, Cultural Divergence and Legal Relativism"

Clive Unsworth, Blasphemy, Cultural Divergence and Legal Relativism, 58 Mod. L. Rev. 658 (1995).

Unsworth's article examines the place of blasphemy in a country (England) that has undergone profound shifts in its cultural and legal landscape since the offence originally became part of the common law. The article explores whether "blasphemy" is still a relevant legal concept in a country that is becoming increasingly multicultural and less tied to a shared vision of morality as embodied in an established church. The link between blasphemy, sedition, and nationalism are explored at some length. For example, Unsworth argues that "[t]his affinity with sedition underlines the function of the law of blasphemy in securing a politico-religious governmental order, an institutional and symbolic church-state unity which is still of fundamental importance in investing the state with a transcendant . . . form of moral authority in its dealings with transgression." (p. 664) The article goes on to examine three cases that revealed the place of blasphemy in England: the Lemon case, the Rushdie affair, and the proceedings over the censorship of the film Visions of Ecstasy. The article is written in a style that could be called "high academic", and thus, some passages are difficult to follow, but here and there some very interesting points are made.

Blasphemy in "A History of the Criminal Law of England"

James Fitzjames Stephen, A History of the Criminal Law of England (London: MacMillan & Co., 1883) (Vol. II) at 470-476.

Stephen's discussion of blasphemous libel in his three-volume history of English criminal law occupies only a handful of pages, but it remains of interest due to his taking a position counter to the mainstream evolution of blasphemy law. After a very brief summary of some notable blasphemous libel cases such as Sedley, Taylor, Woolston, Hetherington, and more, Stephen turns his focus to discussing Coleridge's famous holding in the Pooley case that the criminal law should concern itself only with the style (tone/language) in which blasphemous statements are made, and not with their substance (in terms of orthodoxy). Under Coleridge's style/substance or manner/matter distinction, a temperate and carefully-phrased denial of Christ's divinity or in the validity of the Trinity would not have been cognizable by the criminal law. Although after Coleridge this view quickly became the leading doctrine of blasphemous libel in English law, Stephen takes a dissenting view: "[T]he weight of authority appears to me to be opposed to it. The cases cited all proceed upon the plain principle that the public importance of the Christian religion is so great that no one is to be allowed to deny its truth. The history of the offence confirms this view." (p. 475) Stephen goes on to argue that "To say that the crime lies in the manner and not in the matter appears to me to be an attempt to evade and explain away a law which has no doubt ceased to be in harmony with the temper of the times. . . . The[r]e are certainly strong reasons why the law should be altered. . . . [B]ut they are no reasons at all for saying that the law is not that which a long and uniform course of decisions has declared it to be." (p. 475-76) Although Coleridge's view has become settled doctrine now for well over a century, Stephen's 1883 book amasses several cases to support his view.

"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.

"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)

"Not to Judge But to Save: The Development of the Law of Blasphemy"

I.D. Leigh, Not to Judge But to Save: The Development of the Law of Blasphemy, 8 Cambrian Law Review 56 (1977).

Published shortly after a successful blasphemy prosecution was concluded against James Kirkup's poem "The Love That Dares to Speak Its Name", Leigh's article provides a nice historical analysis of blasphemy in English law from its earliest days as an ecclesiastical offense to its (then) present status as a crime that most observers had thought a relic of a bygone age until its successful use against Kirkup's poem in what became known as the Gay News case. Leigh begins his history with an interesting statement:

"The history of religious persecution in England cannot simply be dismissed as the product of narrow-mindedness and intolerance: to do so is to severely misjudge the men, and indeed the societies, in question. In fact the motives were more complicated (and sincere) than are immediately apparent in a twentieth century where the emotive phrases of 'freedom of belief' and 'freedom of speech' seem so fundamental." (p. 57)

Leigh goes on to talk about why religious persecution takes place, drawing on the works of Frederick Pollock. He then shifts to a discussion of the crime of heresy, and explains how blasphemy evolved from it, before providing a relatively thorough (and occasionally rambling) discussion of how English common law courts interpreted blasphemy beginning in the 1600s.

When evaluating blasphemy's status as a crime, Leigh says that it is a difficult question to determine "[w]hether religious feelings can ever be worth protecting at the cost of another person's liberty[.]" (p. 69) However, Leigh writes that "[e]ven if one decides that the law of blasphemy should not be abolished wholesale, there still remains a substantial need for reform", in part because the English law of blasphemy applied only to criticisms of the Church of England and not other faiths. (p. 69)

Select Committee on Religious Offences in England and Wales: First Report (2003)

Select Committee on Religious Offences in England and Wales: First Report (2003)

This document was the result of proposals in England to create a new offence of "incitement to religious hatred" and abolish the common law crime of blasphemy shortly after the attacks of September 11, 2001. It examines whether blasphemy should remain a crime in England and whether a new "incitement to religious hatred" crime should be enacted. As each of these things have already occurred, this document is now primarily of historical value only. This post focuses only on the sections of the report directly relevant to blasphemy.

Chapter 1 explains that the Select Committee was charged with answering two questions: (1) "Should existing religious offences (notably blasphemy) be amended or abolished?" and (2) "Should a new offence of incitement to religious hatred be created and, if so how should the offense be defined?" The Committee notes that blasphemy and incitement to religious hatred have different targets; "blasphemy concerns sacred entities or beliefs while incitement relates to people or groups who belong to a particular faith." The Committee states that it received more than five hundred written submissions on the two questions and held several public meetings to take evidence.

Chapter 2 is the Committee's attempt to provide context for the report. It notes special concern by the Muslim community that they are not protected by England's blasphemy law, nor are they protected by prohibitions on racist speech like Sikhs and Jews are.

Chapter 3, "The Law as it Stands", begins with a short summary of the common law offence of blasphemous libel in England. According to the Committee, "Two elements of the law are clear. First, the offence is one of strict liability. . . . Secondly, the offence protects only the Church of England." The chapter goes on to discuss several statutes dating from the 1800s that prohibit various types of "crimes against religion."

Chapter 4 explores three options for dealing with the law of blasphemy: leaving it as it stands, repealing it without replacement, or repealing it and replacing it with a new statute "which would cover all religious faiths and beliefs and the rejection of religion[, with t]he objects of the protection [being] faiths, beliefs, etc., not the people or groups who hold to them." On the first option, leaving the law as it stands, the Committee notes that "no [social] consensus seems to exist as to the direction in which the balance [between religious and secular elements of society] should be changed, if indeed change it must." The Committee notes that substantial segments of society believes that "the law on blasphemy offers much more than legal protection; they believe it to be an expression of the fabric of our society [and] of the values on which our relationships with one another depend[.]" In its discussion of the second option, repealing the law without replacement, the Committee notes several defects with the law: that it's a crime of strict liability, that it's discriminatory insofar as it only protects the Church of England, and that, if used, it would probably be struck down under free speech guarantees of domestic and international rights guarantees. On the third and final option, the Committee discusses the difficulties involved in trying to draft a new blasphemy offense that avoids each of these problems.

Chapters 5-9 discuss the following topics: the Ecclesiastical Courts Jurisdiction Act, 1860; the proposed offence of "incitement to religious hatred"; freedom of expression; hate crimes; and "aggravation."

Chapter 10 provides the Committee's conclusions. Unfortunately, the Committee was unable to come to a consensus on most of the crucial questions it discussed. The Committee notes that "we believe there should be a degree of protection of faith, but there is no consensus among us on the precise form that it might take. We also agree that in any further legislation the protection should be equally available to all faiths, through both the civil and the criminal law."

"Ranters Run Amok and Other Adventures in the History of the Law"

Leonard W. Levy, Ranters Run Amok and Other Adventures in the History of the Law (Chicago: Ivan R. Dee, 2000).

Before his death in 2006, Leonard Levy was one of America's foremost legal historians. Levy wrote on a variety of topics, and was probably most famous for his books on early American constitutional history. Two of his books (Treason Against God: A History of the Offense of Blasphemy and Blasphemy: Verbal Offense Against the Sacred From Moses to Salman Rushdie) remain the most comprehensive sources on how blasphemy law evolved from its earliest incarnations to the 20th century.

Levy's 2000 book Ranters Run Amok and Other Adventures in the History of the Law is a collection of miscellaneous essays about a variety of topics, including the Fourth Amendment, the Fifth Amendment, Massachusetts Chief Justice Lemuel Shaw, and more. Two of the essays may be of interest to blasphemy scholars.

The book's first and longest essay is a nice history of the Ranters, a mid-Seventeenth Century English sect. The Ranters were a motley collection of hedonistic religious seekers who professed a variety of doctrines which mostly seemed to center on the idea that there is no such thing as sin and that, therefore, traditional social expectations relating to chastity, sobriety, frugality, etc., need not be observed. It's not surprising that Ranter practices (public drunkenness, vulgarity, and sexual activity) caused extreme consternation in English society. Although blasphemy was prohibited in England prior to the coming of the Ranters, the group was seen as so obnoxious by Parliament that special blasphemy laws were crafted to target the group's doctrines (pp. 33-34). A full history of blasphemy in England would be incomplete with a discussion of the Ranters, and this essay displays an admirable use of primary sources and engaging prose. I haven't compared whether or how much this essay adds to the information on the Ranters provided in Levy's other books on blasphemy.

Another essay "Harvard University Press, et al., v. A Book", is something of an odd duck. Essentially, it's a chronicle of the struggles Levy had with Harvard University Press and peer reviewers over whether his books on blasphemy were of sufficient quality to be published. Although initial contracts had been signed between Levy and the Press, the Press and its reviewers did not give a greenlight to the manuscript, which led Levy into a long and enervating (to the reader) attempt to change their minds. He wasn't successful, and the books had to be taken elsewhere. Unfortunately, Levy doesn't come across in the best light here, as his constant back-and-forth with editors and peer reviewers makes him seem defensive, bitter, and stubborn. Anyone who has had experience dealing with the peer review process can understand how exasperating it can sometimes be, but this essay would have been better off remaining in a diary than in a collection of essays. The main area of dispute between Levy and his reviewers centered on his work on blasphemy as it relates to the trial of Jesus, so only scholars specifically interested in that particular issue might have any reason to seek out this essay.

"The Satanic Verses"

Salman Rushdie, The Satanic Verses (1988).

The Satanic Verses is probably the most famous "blasphemous" book of the latter-half of the Twentieth Century. The controversy over the novel made its author, Salman Rushdie, famous well beyond the literary world. The novel is very much in the "magical realism" vein, as divine/supernatural phenomena and quirky coincidences occur frequently, sometimes noticed and remarked upon by everyday people and sometimes not. At its core the story is about two men born in India, one who takes on the characteristics of the Archangel Gabriel and the other the characteristics of Satan. Themes include the effects of colonization (specifically, England on India) both in terms of society and in terms of the inner psyche of the colonized.

Although most of the book is set in the modern age, the chapters that created such a furor are set during the lifetime of Muhammed. The founder of Islam is given the name "Mahound" in the book, which is a contemptuous name deriving from Medieval Christian literature. The "Satanic Verses" of the title refers to a real-world historical controversy (one apparently rarely given credibility among theologians today): did Muhammed once proclaim that there were more Gods than Allah in order to derive temporary worldly benefits, and then recant once his power base was more secure? The "Satanic Verses", in other words, are verses from the Koran that can be viewed as having a pagan influence. In Rushdie's story, Mahound recites the verses after a spiritual revelation from a being whom he thinks is Gabriel; but after Mahound changes his mind, he says that the supposed divine revelations were a trick sent by the devil. The implication here and elsewhere, then, is that Mahound is simply stating as "divine revelation" whatever happens to be convenient at the time. In one passage, for example, Mahound's scribe (responsible for writing down Mahound's words in what would become the Koran) changes the words and even writes down the opposite out of spite, and Mahound doesn't even notice. The story can thus be read to call into question the entire validity of the Koran.

I lack the training to comment on the book's literary, historical, or theological merits. Purely as a novel, I found it moderately interesting but not exceptional. If nothing else, The Satanic Verses is a testament to the fact that, even in the age of television and computers, literature can still shake the world.

Recent Blasphemy Controversies

Although the Dove World Outreach Center has discontinued its plans to hold "International Burn a Koran Day," controversies over blasphemy continue.

* Queensland University of Technology in Australia has suspended a lawyer for smoking a cigarette rolled with a combination of pages from the Koran and the Bible. (Religion Clause Blog).

* Justice Breyer of the United States Supreme Court was apparently unsure whether burning the Koran is protected by the First Amendment to the United States Constitution (Religion Clause Blog), but then decided it is. (Volokh Conspiracy)

* An advertising standards organization in the U.K. has rejected an ad for being offensive to Catholics. The advertisement showed a pregnant nun eating ice cream with the tag line "Immaculately conceived . . . Ice Cream is Our Religion." (Volokh Conspiracy)

* The New Jersey Transit authority has fired an employee for burning pages from the Koran. (Religion Clause Blog)