With a referendum on blasphemy finally announced, here is the history of blasphemy law in Ireland

After five years of campaigning led by Atheist Ireland, the Irish Government has finally announced its intention to hold a referendum to remove the prohibition of blasphemy from the Irish Constitution.

We don’t yet know if they will propose to simply delete it, or to replace it with a regressive clause about prohibition of religious hatred, which is already covered by Irish law and does not need to be incorporated into the Constitution.

But, whatever the wording of the referendum, campaigners seeking to remove this anachronistic medieval crime from our 21st century democracy should be familiar with the historical, legal and political issues involved.

I will be writing about this over the coming months. This first article covers the history of blasphemy law in Ireland

Overview

Blasphemy was a common law offence under Irish law when the 1937 Constitution explicitly made it an offence punishable by law. The Defamation of Act of 1961 also made it a statutory crime, but did not define what blasphemy was.

The 1996 Constitution Review Group called for the deletion of the crime of blasphemy from the Irish Constitution, along with other references to the Christian God, religion and religious oaths. Two other All-Party Committees have also called for the removal of religious references in the Constitution.

In 1999, the Supreme Court found the Irish law against blasphemy to be unenforceable. In 2008, the UK abolished its blasphemy law from which ours evolved. And the 2008 Irish All-Party Committee on the Constitution repeated the call to remove the blasphemy reference from our Constitution.

Also in 2008, Ireland voted at the UN against an attempt by Islamic states to make ‘defamation of religion’ a crime. Yet the following year the Irish parliament revived this anachronistic medieval crime in modern Ireland.

Contents of this article

Background to the Crime of Blasphemy
1937 – Dail Debate on Irish Constitution
1937 – Irish Constitution Outlaws Blasphemy
1961 – Dail Debate on Defamation Bill
1961 – Defamation Act Creates Blasphemy Law
1991 – Law Reform Commission Recommendation
1991 – Law Reform Commission Fallback Position
1996 – Constitution Review Group Report
1996 – Blasphemy Case High Court Ruling
1999 – Blasphemy Case Supreme Court Ruling
2003 – European Convention of Human Rights Act
2008 – UK Abolishes Blasphemy Law
2008 – All-Party Committee on Constitution
2008 – Ireland Opposes ‘Defaming Religion’ Crime
2009 – New Defamation Bill Includes New Blasphemy Crime
2010 – New Blasphemy Crime Takes Effect

Background to the Crime of Blasphemy

The crime of blasphemy appears several times in the Christian Bible and the related movie Life of Brian. In the Bible, some characters are stoned to death for blasphemy, and Jesus is condemned to death for the same offence. In Life of Brian, a character is stoned to death for telling his wife that a piece of halibut was good enough for Jehovah.

Under medieval canon law, the Catholic Church punished blasphemers by fining and flogging them, piercing their tongues and making them galley slaves. The English courts justified enforcing blasphemy laws on the grounds that Christianity was parcel of the laws of England, and therefore to reproach the Christian religion was to subvert the law.

In 1656, under English common law, Yorkshire Quaker James Naylor was convicted of blasphemy. He was flogged and imprisoned, his tongue was pierced with a red-hot poker, and his forehead was branded with the letter B.

In 1855, the burning of a Bible led to the last blasphemy prosecution in Ireland before the founding of the Free State. Prosecutions for blasphemy in Ireland effectively ceased when the Church of Ireland was disestablished in 1869.

In 1917, a legal case in Britain (Bowman v Secular Society Ltd) had an impact on how the common law against blasphemy should be interpreted. It was alleged that a bequest to the Secular Society Ltd was invalid, as the object of the company involved the denial of Christianity. The House of Lords decided that this object was not unlawful.

In 1921, Bradford man John Gott was the last person in Britain to be sent to prison for blasphemy when he published pamphlets satirising the Bible, in which he compared Jesus to a circus clown. Gott was sentenced to nine months hard labour and, being of ill health, he died shortly after his release.

1937 – Dail Debate on Irish Constitution

In May 1937 the Dail debated the proposed new Irish Constitution. Two TDs argued that it
was heretical and blasphemous, as it suggested that the Irish people had the authority to enact a constitution and elect rulers, whereas the reality was that all such authority derived from God. The President, Eamon de Valera, replied as follows:

“I want everybody to realise what this Constitution states about authority. In the Preamble, and in the Article that refers to that, there is a clear, unequivocal statement that authority comes from God. That is fundamental. It does not matter what view a group of Catholic theologians may take as to how it comes to the immediate rulers. What we have here is clear at any rate – that authority is from God. That is fundamental Catholic doctrine, and it is here. It is true doctrine.”

In June 1937, the debate continued. The opposition proposed deleting the explicit reference to blasphemy being an offence punishable by law. However, they were not arguing that blasphemy should not be an offence. They were arguing that it was already inherent in the right to free expression that you could not utter blasphemy, and so it was not necessary to include such a prohibition twice.

1937 – Irish Constitution Outlaws Blasphemy

In July 1937 the new Irish Constitution was passed. It contained various references to the Christian god and and to religion, including requirements to swear religious oaths in order to become President or a Judge. The three references most directly related to blasphemy are the Preamble, Article 40 on personal rights, and Article 44 on religion.

• The Preamble begins with the words: “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, we, the people of Eire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ…”
• Article 40.6.1 guarantees the right of citizens to express freely their convictions and opinions subject to public order and morality. It then restricts this right by saying that says that “The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”
• Article 44.1 says that “The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.” Note that this article does not enshrine the rights of citizens to worship this imagined character. Instead, it enshrines the rights of this imagined character to be worshipped.

1961 – Dail Debate on Defamation Bill

In July 1961 the Dail debated a Defamation Bill which included a reference to blasphemous libel. During the debate, Justice Minister Charles Haughey was questioned by Patrick McGilligan, a TD who was also a professor of constitutional law at UCD.

McGilligan: There is no definition anywhere of blasphemy in this Bill. Is there in any of the old Acts?
Haughey: Not so far as I am aware.
McGilligan: Where are we then? The offences take in various things, including blasphemous libel. What does it mean?
Haughey: Blasphemy is a common law term. It is defined by common law.
McGilligan: Has it anything to do with the established Church and does nonconformity come into it?
Haughey: No.
McGilligan: Is there a definition of it?
Haughey: Blasphemy is a common law offence. There is no statutory definition of it.
McGilligan: I understood the old common law definition was that blasphemy was subversion of the established religion. Surely, we are getting away from all that?
Haughey: It has nothing to do with the established religion.
McGilligan: What has it to do with?
Haughey: The common law concept of blasphemy.
McGilligan: Which was anything against the established religion.
Haughey: Not necessarily.
McGilligan: It was.
Haughey: Everybody knows what blasphemy is.
McGilligan: I should like to see that put into the definition section – blasphemy is what everybody knows it to be.

1961 – Defamation Act Creates Blasphemy Crime

Section 13 of the Defamation Act 1961 stated the following: “Every person who composes, prints or publishes any blasphemous or obscene libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or imprisonment for a term not exceeding two years or to both fine and imprisonment or to penal servitude for a term not exceeding seven years.” In practice, this law proved to be unenforceable as there was no definition of what blasphemy consists of.

1991 – Law Reform Commission Recommendation

In December 1991, the Law Reform Commission recommended deleting the reference to blasphemy from the Constitution on the grounds that there was no place for such an offence in a society which respects freedom of speech. The President of the Commission was Justice Ronan Keane, who was then a High Court Judge and later became Chief Justice of Ireland.

The Commission noted that the offence of blasphemy was not defined in Irish law, but that it could in theory consist of three possibilities:

• It could mean any questioning of Christian doctrine, which is what it had been from earliest times until the 19th century. This would be totally incompatible with modern conditions, having originated in a period of religious intolerance. It might also be unconstitutional on the grounds of freedom of speech and religious equality.
• It could mean an offensive and insulting attack on the Christian religion, which is what it was deemed to be in England. This might be unconstitutional on the grounds of religious equality.
• It could mean neither of the above, but whatever the jury deemed it to be in any given case. This would mean that the offence lacked an objective basis.

For practical purposes, the Commission recommended that the reference to blasphemy in the Constitution should be deleted as part of a more extensive revision of provisions which, for one reason or another, were generally considered to be anachronistic or anomalous.

1991 – Law Reform Commission Fallback Position

The Law Reform Commission accepted that it might take some time to change the Constitution, and/or that the Government might not accept their recommendation to do so. For these reasons, they produced a secondary interim recommendation for revising the existing blasphemy law. They expressed three concerns about doing this:

• That providing for a new and reformed offence of blasphemy might be regarded as simply encouraging the retention of a law which is anachronistic and anomalous.
• That it would be difficult to acceptably define a religion in the context of a modern law of blasphemy.
• That any legislation might contravene the European Convention on Human Rights, which require a law restricting freedom of expression to be formulated with sufficient precision to enable a citizen to regulate his conduct.

In this context, their secondary recommendation was that:

• The common law offence of ‘blasphemous libel’ be replaced with a new offence of ‘publication of blasphemous matter’.
• That ‘blasphemous matter’ be defined as matter the sole effect of which is likely to cause outrage to a substantial number of the adherents of any religion by virtue of its insulting content concerning matters held sacred by that religion.
• That ‘religion’ be defined to include Christian and non-Christian religions
• That ‘matters held sacred’ be defined so as to exclude criminal offences.
• That the defendent knew he was likely to cause outrage
• That causing such outrage was his sole intent.

This was reasonably close to what became the current blasphemy law in 2009, with two important differences.

• One, the Law Reform Commission saw it as an interim fall-back measure, not as a primary recommendation.
• And two, the current law merely says causing outrage must be intended, whereas this proposal says that causing outrage must be the sole intent.

1996 – Constitution Review Group Report

In May 1996 the Irish Constitution Review Group recommended that the reference to blasphemy be deleted from the Constitution, along with other religious references such as the references to God in the Preamble, the reference to the homage of public worship being due to the Christian God, and the requirement for Presidents and Judges to swear religious oaths.

The Review Group was chaired by TK Whitaker, and had fifteen members from the fields of law, administration, economics, education, political science and sociology.

With regard to freedom of expression, the Review Group recommended that Article 40.6.1 should be replaced by a new clause protecting the right of free speech which was modeled on Article 10 of the European Convention of Human Rights. It said that the onus should be on the Government to show that restrictions on free speech were objectively necessary.

Between then and 2006 there were ten All-Party Oireachtas reports on aspects of the Constitution. These have been described as Progress Reports, and each has covered one section of the Constitution. The 1998 and 1999 reports recommended removing the requirements that the President and Judges swear a religious oath.

1996 – Blasphemy Case High Court Ruling

In November 1995, after the divorce referendum, the Sunday independent published a cartoon of a priest holding a chalice and communion host, with three politicians turning away from him. The caption was “Hello progress, goodbye Father.” This was a play on one of the slogans used by anti-divorce campaigners, “Hello divorce, goodbye daddy”.

Arising from this cartoon, Dublin man John Corway applied to the High Court for an order allowing him to take a blasphemy prosecution against the Sunday Independent. In October 1996, the High Court ruled that the cartoon did not provide a clear prima facie case for a blasphemy prosecution, and that, even if it had done so, the public interest would not be served by instituting a prosecution.

Justice Geoghegan considered the cases of Bowman v Secular Society Ltd 1917 and Regina v Lemon 1979. He concluded that while the causing of offence is a necessary ingredient of the modern crime of blasphemy, it must accompany an attack on some tenet or practice of the Christian religion to constitute blasphemy. He said it was no longer the law that any criticism of the Christian religion was blasphemous.

1999 – Blasphemy Case Supreme Court Ruling

In July 1999 the Supreme Court rejected an appeal by John Corway against the High Court’s decision that the Sunday Independent had not published a blasphemous cartoon. On the specific issue of the cartoon, the Supreme Court found that no jury would consider that an insult to the Blessed Sacrament existed or was intended.

On the more general issue of blasphemy, the Supreme Court found that, because there is no legal definition of blasphemy in Irish law, “it is impossible to say of what the offence of blasphemy consists”.

The Supreme Court also said that, under the Irish Constitution, “the State is not placed in the position of an arbiter of religious truth”.

In effect, the Supreme Court found that the common law crime of blasphemy was inconsistent with the religious equality provisions of the Constitution, and thus had not survived the enactment of the Constitution.

Part of the Supreme Court ruling read:

“From the wording of the Preamble to the Constitution it is clear that the Christian religion is one of the religions protected from insult by the Constitutional crime of blasphemy. But the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the Fifth Amendment to the Constitution was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion. What then is the position of the Muslim religion? Or the polytheistic religions such as Hinduism? Would the constitutional guarantees of equality before the law and of the free profession and practice of religion be respected if one citizen’s religion enjoyed constitutional protection from insult and another’s did not?”

2003 – European Convention of Human Rights Act

In 2003 the Oireachtas passed the European Convention of Human Rights Act. This obliges the courts to interpret statutes and laws in a manner compatible with the European Convention. If it is impossible to do this, the Irish law still prevails. However, The case law of the European Court of Human Rights establishes that a blasphemy clause is not a violation of Article 10 of the European Convention of Human Rights.

2008 – UK Abolishes Blasphemy Law

In May 2008 the United Kingdom abolished its laws against blasphemy, as part of the Criminal Justice and Immigration Act 2008. It was from the British common law against blasphemy that the Irish common law against blasphemy evolved.

2008 – All-Party Committee on the Constitution

In July 2008 the Joint Oireachtas Committee on the Constitution recommended deleting the reference to blasphemy from the Constitution, on the grounds that a modern Constitution should not expressly prohibit blasphemy, and that the Supreme Court decision of 1999 had already rendered the offence a dead letter anyway.

The Committee suggested that, If there is a need to protect against religious offence or incitement, it is more appropriate that this be dealt by way of legislative intervention, with due regard to the fundamental right of free speech.

The Committee was chaired by Sean Ardagh and the vice-chair was Jim O’Keeffe. The members were TDs Thomas Byrne, Michael D’Arcy, Tom Hayes, Brendan Howlin, Michael Kennedy, Denis Naughten, Ned O’Keeffe, Mary O’Rourke and Michael Woods; and Senators Dan Boyle, Denis O’Donovan, Eugene Regan and Alex White.

2008 – Ireland Opposes ‘Defaming Religion’ Crime

In December 2008 in Durban, the United Nations discussed an Egyptian motion on “combating defamation of religion”. The motion was supported by Islamic states and opposed by European Union states. The motion was passed, but a later conference in April 2009 in Geneva removed references to “defamation of religion” from the final document.

Ireland voted with the other EU states that there should not be such a crime as “defamation of religion”. The Minister for Foreign affairs, Micheal Martin, later explained why Ireland had taken this position. He told the Dail that:

“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.”

He said that Ireland also supported a UN resolution on “Elimination of all forms of intolerance and of discrimination based on religion or belief.” He explained that there is a difference between “defamation of religion” and discrimination based on religious belief and incitement to hatred.

2009 – New Defamation Bill Includes New Blasphemy Crime

The Oireachtas was coming close to concluding the Defamation Bill 2006. The purpose of this Bill was to “revise in part the law of defamation and to replace the Defamation Act 1961 with modern updated provisions taking into account the jurisprudence of our courts and the European Court of Human Rights”.

The 1961 Act had included the offence of blasphemy, as quoted above. The new Defamation Bill had been discussed since 2006, under three Justice Ministers, and all early drafts had included no reference to the blasphemy clause. Most commentators assumed that it would simply be dropped from the new Act.

Then the Minister for Justice , Dermot Ahern, proposed to replace the existing reference with a new offence, stating: “A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.”

“Blasphemous matter” was defined as 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; and he or she intends, by the publication of the matter concerned, to cause such outrage.”

During the Oireachtas debate, the fine was reduced from €100,000 to €25,000, allowing people to blaspheme four times as often for the same price. Also, some defences were introduced, but not with sufficient precision to enable a citizen to regulate his conduct.

2010 – New Blasphemy Crime Takes Effect 

The new offence of blasphemy took effect on 1 January 2010.

Atheist Ireland launched its campaign to have the law reversed by publishing a list of 25 blasphemous quotes, which have previously been published by or uttered by or attributed to Jesus Christ, Muhammad, Mark Twain, Randy Newman, George Carlin, Tim Minchin, Richard Dawkins, Pope Benedict XVI, Christopher Hitchens, Cardinal Cormac Murphy-O’Connor and others.

Despite these quotes being abusive and insulting in relation to matters held sacred by various religions, Atheist Ireland supported the right of these people to have published or uttered them, and the right of any Irish citizen to make comparable statements about matters held sacred by any religion without fear of being criminalised, and without having to prove to a court that a reasonable person would find any particular value in the statement.

I will outline in a future article the campaign since 2010 against the blasphemy law.