A yes vote removes from the Constitution the criminalisation of irreverence and expresses support for persecuted people around the world, says Liam Herrick The current referendum on blasphemy presents us with a simple choice.
A no vote means retaining the anachronism of blasphemy in the Constitution, leaving open the possibility that a scientist or journalist could be prosecuted for insulting or even questioning the existence of a god.
A yes vote would mean ridding ourselves of this antediluvian provision and removing a wholly unnecessary and illegitimate restriction on our civil liberties and freedom of speech.
It has been argued that if we vote to remove the offence of blasphemy from the Constitution, the use of blasphemous speech could become a problem in Ireland. But, we might ask, a problem for who?
The prohibition of blasphemy is not a protection for individuals; it is a protection for ideas and institutions. It does nothing to respond to genuine problems of division and racism. If anything, it risks heightening feelings of exclusion, because blasphemy laws are almost always used to defend the majority religion in a State.
If we vote to remove the constitutional offence of blasphemy, the State would still be under a legal obligation to protect individuals from harm. But it would no longer be under a constitutional obligation to protect
religious ideas from ridicule or undermining.
Irish society faces serious challenges of racism, discrimination, and hate- and hostility-based crime, as demonstrated by research carried out by the Irish Council for Civil Liberties, the European Network Against Racism, and the Hate and Hostility research Group.
But blasphemy laws exist to protect religious ideas, not people. Effective incitement-to-hatred and hate crime legislation is badly needed in this country.
It has been pointed out that blasphemy has not been successfully prosecuted in Ireland since 1885; though of course we do not know what has remained unwritten or unsaid for fear of the law over that period.
Still, the fundamental law of the State should express the values of the people.
As long as the offence is set out in the Constitution and in legislation, the State and the courts are left in the invidious position of determining questions of theology and sanctity, and the extent and quality of outrage that might follow from views on these subjects.
Apart from the practical difficulty this poses for public bodies, there is the more pertinent question of whether this could ever be a proper role for a modern State.
It is well settled that blasphemy laws pose a threat to the protection of human rights, by infringing free expression, and that there are other more appropriate ways of addressing the very real problems of discrimination and hate speech.
In 2011, the UN Human Rights Committee changed its concept of the “defamation of religion”, issuing a general comment stating that laws directed at “lack of respect for a religion or other belief system”, including blasphemy laws, are incompatible with international human rights unless they are targetted at incitement to hatred against individuals.
This is essentially a question of the maturity of our society. Do we feel that we are robust enough to tolerate criticism or even ridicule of ideas or beliefs?
Certainly, there is such a thing as bad taste or indecency or insensitivity to the feelings of others — and broadcasters and publishers may well be open to criticism or perhaps even formal complaint processes when these lines are crossed; but the sanction of the criminal law has no business in adjudicating on such matters.
It is a peculiar type of paternalism that seeks to protect institutions that don’t seek or require that protection. The main Christian churches are advocating a yes vote. The Catholic bishops’ main concern is that religious bodies should not be prevented from having a voice in public life.
As a state that has strong equality protections for individuals on the basis of religious belief, and which affords special legal status to organised religious bodies, Ireland clearly provides such strong protection.
The bishops’ second concern relates to the use of blasphemy to oppress minorities, including Christian minorities, in other parts of the world. By removing Ireland from the group of states that retain blasphemy laws, we show solidarity with those around the world who are persecuted on the basis of their beliefs.
There are, of course, other free speech issues that can and should be addressed without constitutional change. However, when we decide on the fundamental law of the State, we must concern ourselves with the choice before us, not with any questions we might prefer to have been asked.
We have an immediate opportunity to take a useful step forward to remove one of the few remaining elements of paternalism from Bunreacht na hÉireann.
Free speech is the lifeblood of our democratic society. A yes vote removes from the Constitution the criminalisation of irreverence — something that has no place in a modern democracy.
Liam Herrick is executive director of the Irish Council for Civil Liberties.