Defending Blasphemy: Exploring Religious Expression under Ireland's Blasphemy Law

Article excerpt

This Note considers the blasphemy provisions of Ireland's Act and examines the Act's limitations on religious expression. By analyzing the effects of religious expression's omission from the Act's protection, this Note argues that enforcement under the Act may be impermissible under both Bunreacht na hEireann and international law. To rectify the Act's failure to defend religious expression, this Note proposes that the Act be amended to permit religious expression as a defense for blasphemy. It then applies the proposed defense to examples of speech that otherwise might run afoul under the Act.

I.   INTRODUCTION
II.  THE BLASTED PAST OF BLASPHEMY IN IRISH LAW
     A. Speech Offenses in Brehon Law
     B. Blasphemy at Common Law
     C. Blasphemy in Canon Law
     D. Irish Blasphemy Law Before Independence
     E. Blasphemy in Modern Irish Law, 1937 to Present
III. DEFINING THE PROBLEM: THE DEFAMATION ACT'S THREAT
     RELIGIOUS SPEECH
     A. Blasphemy in the 2009 Defamation Act
     B. Yes and No: Probing Problems in the Act 'S Defenses
        1. The Act restricts religious expression
        2. The State is not competent to pass judgment on an
           ecclesiastical offense
        3. By regulating religious speech, the Act is a symbolic
           barrier
        4. Irish blasphemy and Europe
IV.  A SOLUTION DE FIDE: IN DEFENSE OF RELIGIOUS SPEECH
     A. Proposed Defense
     B. Application of the Religious Speech Defense
V.   CONCLUSION: ENDING WITH A WHIMPER

I. INTRODUCTION

"Yes, she should be hanged," a group of Pakistani villagers cried out, in favor of the sentence awarded to a 45-year old woman. (1) Her crime? Speaking against a religion. (2) Her conviction occurred not in a pre-modern period, but in November of 2010. (3)

Blasphemy is a controversial subject worldwide. In 2009, the United Nations General Assembly voted in favor of adopting a non-binding resolution on the defamation of religion. The resolution was sponsored by the Organization of the Islamic Conference (OIC), and was supported by Pakistan, Saudi Arabia, and Venezuela. (4) When the resolution was resubmitted in 2010, Secretary of State Hillary Clinton vocalized U.S. opposition by stating that "the United States does not agree that protecting religious freedom means banning speech critical or offensive about religion." (5) The European Union similarly opposed Pakistan's 2009 submission of the OIC's proposal for a defamation of religion resolution, (6) with the Irish Minister for Foreign Affairs stating:

We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief. (7)

By advocating for a U.N. resolution banning defamation of religion, the OIC is attempting to globalize the crime of blasphemy. (8)

Policing speech that offends religious sensibilities is not restricted to the Middle East. Like Pakistan, Ireland has a law prohibiting blasphemy. (9) Ireland's new blasphemy law, the 2009 Defamation Act (the Act), took effect on January 1, 2010. (10) Under the Act, a person can be found guilty of blasphemy if "he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion. (11) Those convicted under the new law could face a fine of up to twenty-five thousand euros. (12) Many in Ireland have called for the Act's repeal and the removal of blasphemy from Bunreacht na hEireann, the Irish Constitution. (13) In a campaign to have the Act repealed, Atheist Ireland, an Irish advocacy group that promotes atheism, published a list of twenty-five "blasphemous" quotations. …