Joanna Diane Caytas
J.D. Candidate, Columbia Law School, 2017
The murderous rampages at Charlie Hebdo in Paris in January 2015, in Copenhagen in February 2015, and all across Paris on November 13, 2015 not only shocked the world’s conscience but also resurfaced a controversy over blasphemy laws that, prior to the advent of fundamentalist religious terrorism, had been thought a relic of a bygone era. These rampages also sparked discussions concerning the existence of a common European identity of values, secular humanism as a minimum constitutional denominator, and the difference between attacking people and ideas.
Islamic groups are the primary supporters of the reinstatement of blasphemy as a criminal offense citing public order, religious sensibilities, and the consequences of incitement. Other writers disagree. In 2008, the Venice Commission, a consultative body to the Council of Europe on constitutional matters, unequivocally recommended the abolition of blasphemy statutes without substitute, arguing: “it is neither necessary nor desirable to create an offense of religious insult” and “the offense of blasphemy should be abolished.” If anything, calls for removal of these relics have grown louder since.
Yet, at the time of this writing, in the “Western world,” a mere seven European countries and the United States have no blasphemy laws in effect:
- In the U.S., any prosecution for blasphemy under state blasphemy laws would violate the First Amendment, so even where such laws are still “on the books,” they are invalid. Targeting a victim due to his/her religion may justify heightened sentencing pursuant to §3A1.1 of the U.S. Sentencing Guidelines which provides for an increase by several levels of the standard sentencing range:
“If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.”
- In the United Kingdom, the common law offenses of blasphemy and blasphemous libel were abolished in England and Wales through an amendment to the Criminal Justice and Immigration Act of 2008. Yet Visions of Ecstasy (1989), the only film banned from showings in the U.K. due to blasphemy, did not receive an 18-rating until 2012.
- In France, penalization of blasphemy has been conclusively disposed of since the Law on Press Liberty of July 29, 1881. This law also proscribes incitement of hate or violence based on religion, nationality, ethnic group, sexual orientation, or handicap (art. 34), as well as slander or libel against any religious group, nationality, ethnic group, sexual orientation, or handicap (art. 32). However, the Alsace-Moselle region retained the old German Penal Code, including its categorization of blasphemy as an offense; in the applicable version, its art. 166 protects only Christianity and Judaism but not Islam:
“Whoever causes a scandal by publicly blaspheming against God by disparaging or publicly insulting Christian cults or a religious community established in the territory of the Confederation and recognized as a corporation, or institutions or ceremonies of said cults or who, in a church or other place dedicated to religious gatherings, has committed offensive and outrageous acts, shall be punished by three years imprisonment.”
- In Iceland, a provision of the Penal Code threatening up to three months imprisonment for “derision of religious doctrines” was repealed on July 2, 2015.
- In Norway, §142 of the Penal Code was repealed in 2009 and eliminated from the Penal Code of 2005. But that Code has not yet entered into force for technical reasons. The current Penal Code of 1902 nominally still contains a dormant and inapplicable blasphemy provision. The last person actually convicted of blasphemy in Norway was sentenced to a fine of NOK 10 in 1912.
- In the Netherlands, §147 of the Dutch Penal Code was repealed on November 29, 2012. No charge had been brought since 1968.
- In Hungary, blasphemy traditionally has no place in the legal dimension.
- In Romania, Law No. 489/20076 on Religious Freedom and the General Status of Cults provides that
“cults, religious associations and religious groups . . . must not infringe upon . . . fundamental human rights and liberties” as guaranteed by Arts. 29 and 30 of the Romanian Constitution to include freedom of conscience and of expression.
Socio-political Reality: De-facto Blasphemy Statutes
An overwhelming majority of European nations still reserve—whether nominally or de facto—the right to penalize impious acts or utterances concerning God, gods, goddesses, sacred items or rituals. But even countries with hallowed traditions of free speech have created ambiguous and therefore dangerous exceptions to it, as the United States did for “desecrating venerated objects” (which notably but not quite logically does not extend to flag burning), or as the United Kingdom did for “inciting religious hatred.” The danger of ambivalence in this area is that it has no logical foundation and appears to accommodate political interests: they do not purport to protect a deity but social peace and order.
“Inciting religious hatred” and other anti-hate speech laws are typically kept vague and could often be construed to limit what some people would classify as religious speech. Depending on how—and how consistently—such statutes are enforced, they may create a double standard. Since even the mere threat of possible prosecution has a remarkable chilling effect on speech, these statutes can have the same outcome and may be viewed as covert blasphemy statutes, kept available in some states for political expediency in times and instances of religious strife and unrest. The amorphous concept of hate-speech poses the danger of re-introducing blasphemy through the back door by purporting to protect “vulnerable groups.” This threatens to obfuscate the difference between hate speakers and “blasphemers” and promptly results in calls for “self-restraint” by media.
It is true that many prosecutions for blasphemy and substitute acts concern behavior that is, by consensus of an overwhelming majority, in manifestly bad taste. Yet in a liberal society committed to protecting minority interests and the right to dissent, this does not suffice. Or, in the words of Rabbi Jonathan Romain, “free speech enables us to expose hypocrisy,” as “[b]lasphemy is in the ear of the hearer, and one person’s sanctity is another person’s idiocy.”
In Britain alone, there are now 35 Acts of Parliament, 52 Statutory Instruments, 13 Codes of Practice, 3 Codes of Guidance and 16 European Commission Directives that all deal with various de-facto blasphemy crimes. As the continent embraced multiculturalism, these laws, or rather their use and interpretation, have sprouted up all across Europe, resulting in outcomes where offending someone’s group identity is treated in the same way that offending God once was.
The Traditional Approach
For somewhat different reasons, Greece, Turkey and Russia have gained perhaps the greatest notoriety for serious blasphemy prosecutions in recent years.
On March 3, 2012, Vladimir Putin’s government in Russia, with the connivance of the Russian Orthodox Church, arrested three members of the punk rock band “Pussy Riot” for performing a profanity-laced anti-Putin song inside Christ the Savior Cathedral in Moscow; they were sentenced to two years of hard labor. Separately, an application by atheist association “Zdravomyslie” to erect ten billboards across Moscow containing a direct quote of art. 14(2) of the Russian Constitution (“Religious associations are separate from the state and equal before the law”) was denied. The same Constitution also provides for far-reaching freedom of religion and expression in arts. 19(2) and 28; art. 59 even guarantees the right to conscientious objection to military service. But art. 29(2) contains the typical pretextual device for exercising a “blasphemy-equivalent” restraint on speech:
“The propaganda or agitation instigating social, racial, national or religious hatred and strife shall not be allowed. The propaganda of social, racial, national, religious or linguistic supremacy shall be banned.”
In Greece, blogger Filippos Loizos was sentenced to ten months of imprisonment (suspended for three years) for his satirization on Facebook of St. Paisios, a canonized Greek Orthodox “prophet” and “miracle worker” monk. In another case, Austrian artist Gerhard Haderer was sentenced in Athens in absentia to six months of imprisonment for publishing a satirical book about a pot-smoking, surfing Jesus, though his sentence was dismissed upon appeal. Greece actually took the pains to “ban” Haderer’s book—which had not even been published in Greek—by extraterritorial application of its blasphemy statute and by (unsuccessfully) seeking Haderer’s extradition under a European Arrest Warrant, the first such request for an artist since the system was introduced in 2002. Remarkably, statutory language and judicial practice have thus far limited the right to redress de facto to offended Christian sensibilities.
Penal Code Art. 198: “1. One who publicly and maliciously and by any means blasphemes God shall be punished by imprisonment for not more than two years; 2. Anyone, except as described in ¶1, who displays publicly with blasphemy a lack of respect for things divine, is punished with up to 3 months in prison.”
Art. 199. “One who publicly and maliciously and by any means blasphemes the Greek Orthodox Church or any other religion tolerable in Greece shall be punished by imprisonment for not more than two years.”
Similarly, the country outlaws any speech or acts that “insults public sentiment” or “offends people’s religious sentiments.”
In Turkey, the conservative Islamist-leaning regime of President Recep Tayyip Erdogan blocked the website of internationally famed British atheist and evolutionary biologist Richard Dawkins on the application of Islamic creationist Adnan Oktar (a.k.a. Harun Yahya). Art. 216 of the Turkish Penal Code provides for a prison sentence between six months to one year for:
“(1) Any person who openly provokes a group of people belonging to a different social class, religion, race, sect, or coming from another origin, to be rancorous or hostile against another group, is punished with imprisonment from one year to three years in case such act causes risk from the perspective of public safety.
(2) Any person who openly humiliates another person just because he belongs to a different social class, religion, race, sect, or comes from another origin, is punished with imprisonment from six months to one year.
(3) Any person who openly disrespects the religious belief of a group is punished with imprisonment from six months to one year if such act causes potential risk for public peace.”
Prosecutions are not infrequent and concern a broad spectrum of “disrespectful” acts.
More Nuanced but Still Potentially Effective Restraint
In a multitude of other European states, blasphemy has remained on the books but is very rarely if ever charged. Instead, it is replaced by “de-facto blasphemy laws” that aim not to protect a deity but rather the sentiments of worshippers and believers, thus creating religious privilege in the secular state through the back door. This leads to unrealistic expectations by social and religious conservatives and to discrepancies with secular humanism as a common constitutional denominator in an open and pluralistic society. These states attempt to square the circle by guaranteeing free speech on the one hand and yet creating some sort of “right not to be offended” on the other. Laudable though this intention may be, the right to free speech means nothing without the right to offend. Free speech needs to be indivisible and total, as the protection of religion at its expense would come at too high a price.
Notable examples of European countries with traditional blasphemy laws currently in force include:
- Austria threatens in §§188 and 189 of its Penal Code “vilification of religious teachings” with up to six months imprisonment or a substantial fine.
188 Vilification of Religious Teachings. “Whosoever publicly disparages a person or thing or doctrine that is the object of worship of a church or religious association operating within the country, or otherwise acts in a manner likely to give rise to legitimate offense, shall be punished by imprisonment for up to six months or by fine up to three hundred sixty daily penalty units.”
189 Disturbance of Religious Practice. “(1) Whosoever prevents by violence or by threat of violence, regular, lawful religious worship or any similar activity carried out by a church or religious association operating within the country, shall be punished by imprisonment for up to two years. (2) Whosoever acts to disturb or prevent (1) in a place dedicated to regular, lawful, religious worship of a church or religious association operating within the country, or (2) during a regular lawful public religious worship or any regular lawful public worship activities, carried out by a church or religious association operating within the country, or (3) in any way disturbs directly the lawful, regular religious worship and its dues by a church or a religious association operating within the country, shall be punished by imprisonment for up to six months or by fine up to 360 daily penalty units.”
Convictions occur mostly on account of sensibilities of Muslims or (very rarely) of Catholic clergy. There is some controversy about the constitutionality of this provision.
- Cyprus, in §§141 and 142 of its Penal Code, appears to contradict Art. 19 of its Constitution stating that “every person has the right to freedom of speech and expression in any form.” Well, unless that person offends religious sentiments:
Art. 141. “Whosoever acts with deliberate intention of injuring the religious feelings of any person, or makes any gestures seen by that person, or places any object in the sight of that person, shall be guilty of a misdemeanor and is liable to imprisonment for one year.”
Art. 142. “Whosoever publishes a book or pamphlet or any article or letter in a newspaper or periodical which any class of persons shall consider a public insult to their religion, with the intent to vilify such religion or to shock or insult believers in such religion shall be guilty of a misdemeanor.”
- Denmark proscribes blasphemy in §140 of its Penal Code but it has not been used since Nazis were convicted of anti-Semitic propaganda in 1938. Instead, §266(b) addresses hate speech. Still, repeat attempts in parliament to repeal the blasphemy statute failed to secure a majority.
- Finland prohibits blasphemy in §10 of chapter 17 of its Penal Code as “Breach of the sanctity of religion.”
The offense is committed by anyone who “(1) publicly blasphemes against God or, for the purpose of offending, publicly defames or desecrates what is otherwise held to be sacred by a church or religious community, as referred to in the Act on the Freedom of Religion (267/1922)…”
- Germany criminalizes blasphemy indirectly but severely in Penal Code §166:
166. Defamation of religions, religious and ideological associations.
“(1) Whosoever publicly or through dissemination of written materials (§11(3)) defames the religion or ideology of others in a manner capable of disturbing the public peace, shall be liable to imprisonment not exceeding three years or a fine.
(2) Whosoever publicly or through dissemination of written materials (§11(3)) defames a church or other religious or ideological association within Germany, or their institutions or customs in a manner capable of disturbing the public peace, shall incur the same penalty.”
- Ireland has a constitutional provision that provides for penalization of blasphemy:
Art. 40 §6.1(i) “The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”
The controversial Defamation Act of 2009 currently threatens in its §36 a fine of €25,000, provided that
“(a) 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, and
(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.”
A referendum on the abolition of blasphemy legislation was proposed but withdrawn by the government in order to give precedence to a referendum on same-sex marriage.
- Italy makes blasphemy in public a mere administrative offense under Penal Code Art. 724 punishable by fine ranging from €51 to €309. Availability of criminal prosecution was repealed in 1999.
- Liechtenstein guarantees freedom of belief and exercise of religion but §188 of its Penal Code prohibits not only discrimination but also debasement of any religion or its believers.
- Malta prohibits in Penal Code Art. 163 “vilification of the Roman Catholic Apostolic Religion” and threatens imprisonment between one and six months, whereas Art. 164 threatens “vilification of any cult tolerated by law” with one to three months imprisonment. Blasphemous words or expressions perpetrated by obscenity or indecency even in a state of intoxication are punishable by a minimum fine of €11.65 and/or up to three months imprisonment. The small island prosecuted as many as 621 individuals in 2008 for “blaspheming in public.”
- Montenegro, despite guaranteeing freedom of religion and expression, penalizes incitement of religious hatred and mockery of religious symbols with prison sentences from six months to ten (!) years.
- Poland does not have an explicit blasphemy statute but instead in Art. 196 of its Penal Code broadly penalizes “offending religious sentiments.”
Art. 196. Offending religious sentiments. “Whosoever offends religious sentiments of other people by publicly insulting an object of religious cult or a place for public holding of religious ceremonies, shall be subject to a fine, restriction of liberty or loss of liberty for up to two years.”
The provision is frequently invoked by Catholic clergy and politicians seeking to restrict debate on the Church’s widespread influence on social, sexual, and political matters in the country.
- San Marino continues to criminalize blasphemy in Penal Code Art. 260, extending protection even to the “honor and prestige of a [Catholic] priest.”
Article 260 – Religious Insult. “Whosoever desecrates symbols or objects of cult or worship of a religion that is not contrary to morals or who publicly mocks the acts of a cult is liable to first-degree imprisonment. The same penalty shall apply to attacks on the honor or prestige of a priest in or due to the exercise of his functions. Whosoever desecrates the sacred relics of San Marino is liable to second term imprisonment.”
- Spain provides sanctions for vilification of religious sentiments, beliefs, dogmas or rituals, granting the courts an abundance of discretion in interpreting the scope of this provision. The Spanish legislation ventures far in that it also provides equal penalties for offenses against atheists or agnostics (Art. 525(2) Codigo Penal).
Art. 525. “(1) Whosoever, in order to offend the sentiments of the members of a religious confession, publicly disparages their dogmas, beliefs, rites or ceremonies, either verbally or in writing, or publicly insults those who profess or practice these, shall be punished by fine or imprisonment for a period between eight to twelve months.
(2) The same penalties shall apply to those who publicly disparage, either verbally or in writing, those who do not profess any religion or belief whatsoever.”
This resulted in a notorious incident where artist Javier Krahe was prosecuted in 2012 for this crime but ultimately acquitted. It concerned a film scene of 54 seconds recorded 34 years prior in a documentary about him where he allegedly “cooked” a crucifix.
- Switzerland penalizes in Art. 261 of the Penal Code various acts against the freedom of faith and of worship, all of which require a (difficult) showing of malice for conviction.
Art. 261 Attack on the freedom of faith and the freedom to worship.
“Whosoever publicly and maliciously insults or mocks the religious convictions of others, and in particular their belief in God, or maliciously desecrates objects of religious worship,
whosoever maliciously prevents, disrupts or publicly mocks an act of worship, the conduct of which is guaranteed by the Constitution, or
whosoever maliciously desecrates a place or object that is intended for a religious ceremony or an act of worship the conduct of which is guaranteed by the Constitution,
shall be liable to a fine not exceeding 180 daily penalty units.”
Protecting Essential Freedom of Speech from Sensibilities
At the same time, the Saudi-based Organization for Islamic Cooperation (OIC) has pressed for the past decade for the adoption of global legislation on blasphemy. Its membership is the same constituency that also criminalizes apostasy. Global support for legal restraint to protect religious sentiments was recently visually summarized by BBC, if somewhat inaccurately with regard to the countries discussed above. Christianity and its statecraft is not without its own tragic history with regard to religious liberty. But it has gone through four centuries of Enlightenment, Reformation, the Thirty Years War, the French and Marxist revolutions as well as the experience of decolonization, and as a result of torturous experience has begotten and refined the concept of separation of Church and State. Thought through to its logical conclusion, this separation cannot be said to have truly occurred unless protection of spiritual dogma by temporal powers is removed without substitute. Not least because it just so happens that the correlation between societies denying unconditional religious liberty and societies denying rights to girls and women is near absolute. So is the correlation between societies with blasphemy/apostasy laws and those originating terrorism. To speak of overlap would be an understatement if there ever was one—near-perfect congruence is a more accurate description.
Featured image source: https://www.wpi.edu/Images/CMS/InternationalHouse/religious_diversity_globe_rdax_300x301.jpg