Blasphemy law in the Republic of Ireland

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In the Republic of Ireland, blasphemy is required to be prohibited by Article 40.6.1.i. of the 1937 Constitution. The common law offence of blasphemous libel, last prosecuted in 1855, was ruled in 1999 to be incompatible with the Constitution's guarantee of religious equality. The lacuna was filled in 2009 by a new offence of "publication or utterance of blasphemous matter". The continued existence of a blasphemy offence is controversial, with proponents of freedom of speech and freedom of religion arguing it should be removed.

Early history[edit]

According to Holinshed's Chronicles, Adam Duff O'Toole was burned alive in Dublin in 1327 for heresy and blasphemy.[1][2]

The legal system of Ireland grew out of the common law system of English law. The common law offence of blasphemous libel applied only to Christianity.[3] Spoken blasphemy was also an offence.[4] Profanity was generally regarded by legal scholars as synonymous with blasphemy.[4] The penalty for a first offence was an unlimited fine and imprisonment; for a second offence it was banishment.[5] The Anglican Church of Ireland was the established church from 1536 to 1871. Whether the crime could be committed against a denomination other than the established church was unclear;[6] John Kelly suggested not.[7]

There was a prosecution in the Kingdom of Ireland for blasphemous libel in 1703: Thomas Emlyn, a Unitarian minister, was fined £1,000 and imprisoned for one year for denying the Divinity of Christ.[8] Narcissus Marsh, the Church of Ireland Archbishop of Dublin, began a prosecution against a Presbyterian minister in Drogheda, which was dropped by the Dublin Castle administration sympathetic to dissenters.[9] Other incidents that century did not result in prosecutions. In 1713, Peter Browne, bishop of Cork and Ross preached that loyal toasts to "the glorious, pious, and immortal memory" of King William were blasphemous.[10][11] The same year, a convocation of the Church of Ireland recommended prosecution of Robert Molesworth for "an indictable profanation of the holy scriptures", after he had quoted Scripture in the course an insult to their representatives at a viceregal levée.[12][13] In 1756, Robert Clayton, Bishop of Clogher, questioned the Nicene Creed in a tract on religious tolerance; he was condemned by other bishops, but died before any prosecution for blasphemy was brought.[14][15]

In 1852, in the United Kingdom of Great Britain and Ireland, John Syngean Bridgman, a Franciscan friar, was convicted in County Mayo after burning an Authorized King James Bible.[16] He viewed it as a souperist work inferior to the Catholic Douay-Rheims Bible. While the indictment described his actions as "in contempt of the Protestant religion", Judge Thomas Langlois Lefroy advised the jury "it is not the version of the Scriptures which will warrant the commission of such an offence" but rather "a want of reverence to the Scriptures".[16][17] In 1855 at Kingstown, a Protestant Bible was burned on a bonfire of "irreligious" books organised by Vladimir Petcherine, a Catholic priest. He was acquitted of blasphemy after claiming he had not intended to burn any Bibles.[16][17]

Independence[edit]

Common law precedents persisted after the creation in 1922 of the Irish Free State, provided they were consistent with the 1922 Constitution, and later the current (1937) Constitution. The last British prosecution till 1977 was Bowman v Secular Society Limited in 1917.[18] The Irish Law Reform Commission's 1991 consultation paper on the crime of libel states, "if a case had arisen between Bowman in 1917 and 1937, it seems likely that an Irish court would have found the views in Bowman persuasive".[18]

Article 40.6.1.i. of the 1937 Constitution states "The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law". Article 44.1 states "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."[19]

In 1957, The Rose Tattoo was produced at the inaugural Dublin Theatre Festival. Alan Simpson, owner of the Pike Theatre Club, was prosecuted for "producing for gain an indecent and profane performance", with obscenity later added to the charge.[20] The play's detractors were concerned by its sexual content rather than religion.[21] The Law Reform Commission's 1991 report comments "the equation of indecency and obscenity with profanity is probably misconceived. Although profane matter may sometimes be obscene or indecent, it is not necessarily so."[22]

Section 13 of the Defamation Act, 1961 prescribed penalties for blasphemous libel, but did not define the offence,[23] which was presumed still to be the common-law offence.[5] The new maximum penalties were seven years' penal servitude, or two years' imprisonment and a £500 fine.[23] The only attempted prosecution since 1855 was in 1999,[24] when John Corway brought a private prosecution against Independent Newspapers and Irish Independent editor Aengus Fanning for an editorial cartoon published during the 1995 divorce referendum, which depicted the government parties' leaders snubbing a Catholic priest who was holding out a Communion wafer.[25] The Supreme Court ruled that the 1937 Constitution had extinguished the common law offence, stating "It is difficult to see how the common law crime of blasphemy, related as it was to an established Church and an established religion could survive in ... a Constitution guaranteeing freedom of conscience, and the free profession and practice of religion."[26] It refused to allow the prosecution, stating "in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists ... In the absence of legislation and in the present uncertain state of the law the Court could not see its way to authorising the institution of a criminal prosecution".[27]

Defamation Act 2009[edit]

The Law Reform Commission's 1991 Report opined that "there is no place for the offence of blasphemous libel in a society which respects freedom of speech."[28] It said the Prohibition of Incitement to hatred Act 1989 provided an adequate protection for outrage against religious belief.[28] However, since banning blasphemy is mandated by the Constitution, abolishing the offence would require a referendum. A referendum solely for that purpose "would rightly be seen as a time wasting and expensive exercise".[29] The Commission's report, therefore, outlined criteria for a statutory definition of blasphemy which could serve until such time as Article 40.6.1.i might be changed as part of a broader Constitutional amendment.[30] The 1996 report of the Oireachtas Constitution Review Group agreed that "The retention of the present constitutional offence of blasphemy is not appropriate."[31]

The Defamation Act 2009 (introduced as the Defamation Bill 2006[32]) implemented many of the recommendations of the Commission's 1991 report. Originally, it omitted reference to blasphemy, pending a review by the Oireachtas Joint Committee on the Constitution. In March 2008, Brian Lenihan, then Minister for Justice, Equality and Law Reform, said:[6]

In England and Wales blasphemy traditionally only consisted in the scandalising of the established church. It is probably the case in Ireland, with the enactment of the Article 44 provision in 1937, that blasphemy was extended to cover all of the denominations recognised in the Constitution and that in 1972 it passed into a stage where it extended itself to all theistic religions, since all theistic religions are honoured by the Constitution, although Christianity is uniquely invoked in the preamble.

The Joint Committee on the Constitution's report on Article 40.6.1.i. was published in July 2008. The Committee had discussed the case of comedian Tommy Tiernan, whose stand-up routine on The Late Late Show parodied the Gospels, offending many viewers.[33] The Bar Council of Ireland made a presentation to the Committee, pointing out that blasphemy and treason were the only crimes specifically mentioned in the Constitution.[34] Neville Cox stated:[34]

When the English Parliament originally enacted blasphemy laws, it was with a view to appeasing an angry God who was irritated by despicable literature and who was causing plagues and fires to occur in London. That was the historical reason for the law. The Law Commission in England suggested that there were two types of situation where what had previously been characterised as blasphemous material might generate a public interest in its prohibition. The first is where there is incitement to hatred and the second is where there is simply an excessive offence to religious sensibilities. The term "blasphemy" does not relate to either of these. It is, therefore, a misdescription of a changed law.

The Oireachtas Committee's report concluded:[7]

The reference itself has effectively been rendered a "dead letter" by virtue of the decision of the Supreme Court in Corway. Furthermore, the Committee is of the view that in a modern Constitution, blasphemy is not a phenomenon against which there should be an express constitutional prohibition.

On 20 May 2009 at the Bill's committee stage, the section dealing with blasphemy was introduced by Minister for Justice Dermot Ahern as an amendment.[35] Section 36 defines a new offence of "Publication or utterance of blasphemous matter",[36] which carries a maximum fine of €25,000.[36] The offence consists of uttering material "grossly abusive or insulting in relation to matters held sacred by any religion", when the intent and result is "outrage among a substantial number of the adherents of that religion".[36] A defence is permitted for work of "genuine literary, artistic, political, scientific, or academic value".[36] "Religion" excludes profit-driven organisations or those using "oppressive psychological manipulation".[36]

Ahern said:[37]

I am ... puzzled as to the hysterical and incorrect reaction whipped up by some media reporters and commentators on this point. ... I as the responsible Minister, and we as legislators, do not have the luxury of pursuing a "do nothing" approach while we wait for an opportune moment to move a constitutional amendment.

President Mary McAleese convened the Council of State to discuss whether the Bill should be referred to the Supreme Court to test its Constitutionality; she decided not to do so.[38] The Bill became Law on 23 July 2009,[32] and came into effect on 1 January 2010.[39]

Proposed referendum[edit]

The advocacy group Atheist Ireland responded to the enactment by announcing the formation of the "Church of Dermotology".[40] On the date on which the law came into effect, Atheist Ireland published a series of potentially blasphemous quotations on its website and vowed to challenge any resulting legal action. It also said that it would be holding a series of public meetings to launch a campaign for secular constitutional reform.[41][42]

In March 2010, Ahern's press officer said the minister might ask the cabinet to hold a referendum to remove the reference to blasphemy from the Constitution in autumn 2010, at the same time tentatively planned for a referendum on an amendment relating to children's rights.[38] Asked about this in the Dáil, Ahern did not offer any commitment, but said:[43]

the programme for Government did indicate the possibility of referendums on a number of issues ... If we were to have a number of referendums on one day, it would be appropriate to put to the people a question on the section of the Constitution relating to blasphemous and seditious libel.

In the event, no referendums were held before the dissolution of the 30th Dáil in January 2011. Before the ensuing general election, Atheist Ireland asked parties "Do you believe that blasphemy should be a criminal offence?" Fine Gael, Sinn Féin, and the Workers' Party said no, while Labour and the Green Party supported a referendum to remove the constitutional requirement.[44] After the election, the Fine Gael–Labour coalition's programme for government promised a Constitutional Convention to draft a range of reforms, including "Removing blasphemy from the Constitution".[45]

The Convention was established in December 2012, and received submissions on the blasphemy issue from various groups and individuals,[46] mostly in favour of abolition.[47] The Irish Council of Churches, a coalition of the main Christian churches in Ireland, described the provision as "largely obsolete".[48] The Convention considered the issue at its plenary session on 2–3 November 2013.[49][50][51] Several submitters were invited to make presentations at the meeting.[47] The Knights of Saint Columbanus, the Islamic Cultural Centre of Ireland, and an NUIG PhD student argued in favour of retention, while Atheist Ireland, the Humanist Association of Ireland, and the Irish Council of Civil Liberties argued for its removal.[47][52] Convention members voted 61–38 against retaining the existing Constitutional prohibition of blasphemy; 53–38 in favour of replacing it with a prohibition of "incitement to religious hatred"; and 50–49 against having a statutory prohibition of blasphemy.[53] Once the Convention delivers a formal report of its deliberations, the government will have four months in which to make a formal response in the Oireachtas.[54]

Other laws[edit]

The Censorship of Films Act 1923 mandates the Chief Censor to prohibit a film or scene "unfit for general exhibition in public by reason of its being indecent, obscene or blasphemous".[55] A 1925 Amendment extended the power to ban advertisements for films.[56] These powers are retained in the most recent legislation of 2008.[57] The Censor (now called the Director of Film Classification) has wide discretion in interpreting the criteria: Monty Python's Life of Brian was banned by Frank Hall in 1980 for being blasphemous;[58] when resubmitted in 1987 it was passed uncut by his successor Sheamus Smith.[59] These Acts apply only to cinema films; the Video Recordings Act, 1989 does not include blasphemy as grounds for prohibition.[60]

The Censorship of Publications Acts (1929 and 1946) did not include blasphemy among possible grounds for banning, which were indecency, obscenity, promotion of "unnatural" contraception or abortion, and (in the case of periodicals) excessive focus on crime.[61][62] In the debate on the 1946 Bill, Senator Louis O'Dea suggested adding blasphemy as a criterion.[63]

See also[edit]

References[edit]

Notes[edit]

  1. ^ Webb, Alfred (1878). "O'Toole, Adam Duff". A Compendium of Irish Biography. Dublin: Gill & Son. Retrieved 19 January 2010. 
  2. ^ Levy, p.77
  3. ^ Keane 1991, §§92,104
  4. ^ a b O'Higgins, Paul (March 1960). "Blasphemy in Irish Law". The Modern Law Review 23 (2): 151–166. doi:10.1111/j.1468-2230.1960.tb00581.x. JSTOR 1091444. 
  5. ^ a b Defamation Bill, 1961—Committee Stage Dáil Éireann – Volume 191 – 26 July 1961
  6. ^ a b Defamation Bill 2006: Report and Final Stages. Seanad Éireann – Volume 188 – 11 March 2008
  7. ^ a b Joint Committee on the Constitution (July 2008). "First Report Article 40.6.1.i – Freedom of Expression". Houses of the Oireachtas. Retrieved 19 January 2010. 
  8. ^ Keane 1991, §14
  9. ^ "Narcissus Marsh". Oxford Dictionary of National Biography (online ed.). Oxford University Press. doi:10.1093/ref:odnb/101018115.  (Subscription or UK public library membership required.)
  10. ^ Powell, Martyn J. (13 October 2006). "Political Toasting in Eighteenth-Century Ireland". History (The Historical Association and Blackwell Publishing) 91 (304): 508–529. doi:10.1111/j.1468-229X.2006.00376.x. 
  11. ^ Lecky, William Edward Hartpole (1918). A history of Ireland in the eighteenth century 1. London: Longmans, Green & Co. p. 423. ISBN 0-543-95021-2. 
  12. ^ Hayton, David (2004). Ruling Ireland, 1685–1742: politics, politicians and parties. Irish historical monographs 1. Boydell Press. pp. 179–180. ISBN 1-84383-058-2. 
  13. ^ Levy, p.276
  14. ^ Levy, pp.276–7
  15. ^ "Clayton (Robert)". A New and General Biographical Dictionary, containing an historical, critical and impartial account of the lives and writings of the most eminent persons in every nation in the world, particularly the British and Irish, from the earliest accounts of time to the present period 3 (New ed.). London. 1795. pp. 369–71. 
  16. ^ a b c Keane 1991, §15
  17. ^ a b Levy, p.464
  18. ^ a b Keane 1991, §16
  19. ^ Constitution of Ireland Department of the Taoiseach
  20. ^ Keane 1991, §§128–132
  21. ^ Trotter, Mary (2008). Modern Irish Theatre. Cultural history of literature 11. Polity. pp. 134–5. ISBN 0-7456-3343-9. 
  22. ^ Keane 1991, §131
  23. ^ a b Defamation Act, 1961, Section 13 Irish Statute Book
  24. ^ [1999] IESC 5 §24
  25. ^ [1999] IESC 5 §5
  26. ^ [1999] IESC 5 §35
  27. ^ [1999] IESC 5 §38
  28. ^ a b Keane 1991, §231
  29. ^ Keane 1991, §232
  30. ^ Keane 1991, §245
  31. ^ Report of the Constitution Review Group, 1996
  32. ^ a b "Defamation Bill 2006 [Seanad] (No.43 of 2006)". Houses of the Oireachtas. 
  33. ^ "Joint Committee on the Constitution". Parliamentary Debates. Oireachtas. 23 April 2008. p. 2. Retrieved 23 October 2010. 
  34. ^ a b "JOINT COMMITTEE ON THE CONSTITUTION". Parliamentary Debates. 23 April 2008. p. 1. Retrieved 23 October 2010. 
  35. ^ Parliamentary Debates (Official Report – Unrevised) Committee on Justice, Equality Defence and Women's Rights Wednesday, 20 May 2009 – Page 1
  36. ^ a b c d e 36. Publication or utterance of blasphemous matter. Defamation Act 2009; Irish statute book
  37. ^ Amending the Law on Blasphemous Libel Dermot Ahern, Dáil , 20 May 2009
  38. ^ a b Coulter, Carol (17 March 2010). "Ahern to propose blasphemy amendment". The Irish Times. Retrieved 23 October 2010. 
  39. ^ Defamation Act (Commencement) Order 2009 S.I. No. 517 of 2009; Attorney-General's office
  40. ^ Nugent, Michael (26 May 2009). "Join the Church of Dermotology". blasphemy.ie. Atheist Ireland. Retrieved 18 January 2010. 
  41. ^ Irish atheists challenge new blasphemy laws – The Guardian, Friday, 1 January 2010
  42. ^ Irish atheists challenge blasphemy law – BBC News, Saturday, 2 January 2010
  43. ^ "Referendum on Blasphemy". Parliamentary Debates (Official Report – Unrevised). Dáil Éireann. 25 March 2010. p. 11. Retrieved 23 October 2010. 
  44. ^ Nugent, Michael (23 February 2011). "How did the parties and candidates reply to our questions on secular policies?". Atheist Ireland. Retrieved 10 March 2011. 
  45. ^ "Programme for Government". Fine Gael. March 2010. Retrieved 10 March 2011. 
  46. ^ "Blasphemy". Submissions received. Constitutional Convention. Retrieved 3 November 2013. 
  47. ^ a b c "Blasphemy category". Meeting videos. Dublin: Constitutional Convention. 5 November 2013. Retrieved 21 November 2013. 
  48. ^ McCullagh, Mervyn (31 October 2013). "Submission from the Irish Council of Churches/Irish Inter-Church Meeting". Constitutional Convention. Retrieved 3 November 2013. 
  49. ^ "Calendar for 2013". Constitutional Convention. Retrieved 14 August 2013. 
  50. ^ Press Association (2 November 2013). "Blasphemy law removal considered". Irish Independent. Retrieved 2 November 2013. 
  51. ^ "Convention to consider the removal of the offence of blasphemy" (Press release). Constitutional Convention. 31 October 2013. Retrieved 2 November 2013. 
  52. ^ "Constitutitional Convention reviews blasphemy - RTÉ News". RTÉ.ie. 2 November 2013. Retrieved 3 November 2013. 
  53. ^ Mac Cormaic, Ruadhán (3 November 2013). "Convention recommends replacing blasphemy offence". The Irish Times. Retrieved 3 November 2013. 
  54. ^ O'Connell, Hugh (3 November 2013). "Blasphemy offence should be replaced in the Constitution, says Convention". TheJournal.ie. Retrieved 3 November 2013. 
  55. ^ §7 When certificate to be granted by Official Censor. Censorship of Films Act, 1923; Irish Statute Book
  56. ^ §3. Prohibition of certain advertisements Censorship of Films (Amendment) Act, 1925; Irish Statute Book
  57. ^ §70. Amendment of Censorship of Films Act 1923. Civil Law (Miscellaneous Provisions) Act 2008; Irish Statute Book
  58. ^ Bacik, Ivana (July 2003). "Free Speech, the Common Good and the Rights Debate". The Republic (The Ireland Institute) (3: Culture in the Republic, Part One). 
  59. ^ Rockett, Kevin (2004). "Outline account of Irish film censorship". IFCO. Retrieved 20 January 2010. 
  60. ^ §3 Certification of video works. Video Recordings Act, 1989; Irish Statute Book
  61. ^ Censorship of Publications Act, 1929; Irish Statute Book
  62. ^ Censorship of Publications Act, 1946; Irish Statute Book
  63. ^ Censorship of Publications Bill, 1945—Second Stage Seanad Éireann – Volume 30–14 November 1945