Here’s an open and shut one if I ever saw it.
What can you say? Having open references to religion in the constitution is bad enough. But having exact article related to the “crime” of blasphemy?
Well, let’s just reel in the hyperbole before it gets started, and look at what the constitution actually says. From Article 40:
6. 1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:
i. The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.
Yeah, that’s not great is it. Sounds all good until the word “however”, and then its 1930’s style patronising attitudes, which includes the use of the term “blasphemous”.
But the truth is that the article and the blasphemous provision is a dead duck. Inspired by historical reasons dating back centuries to a completely different era, only one prosecution has been attempted with the law, in 1999 when a private prosecution was brought against Independent newspapers over what was seen as an offensive cartoon, the result of which was a refusal by the Supreme Court to pursue the matter, as there was no legislation that actually defined what blasphemy was so that it could be punished. The point was essentially made also, that laws against blasphemy could not mesh with the sections relating to freedom of expression.
So, this strange truce came into being, with the provision remaining in the constitution, nominally because the referendum needed to dump it would be too costly for what was mere housekeeping. In return, it was meaningless, never to be used, never to be punished.
Until 2009, when then Minister for Justice Dermot Ahern stirred up a hornets’ nest. Poor Dermot was only doing what a 1991 Commission had suggested doing, which was to make a statutory definition of the offence until such time as a referendum could be carried out to negate it completely. In return, he got a lot of flak, painted as a crazed fundamentalist, by a lot of people who only realised Ireland had a blasphemy provision when the story broke. President McAleese, who approved the law without referral to the Supreme Court, did not get anywhere near the same amount of criticism.
The fact that Ahern’s amendment removed the prison time punishment for blasphemy, reduced other punitive aspects, tried to rule out private prosecutions under the law and that he openly voiced his support for a referendum to be put to the people on the matter in his governments lifetime failed to attract anywhere near the same amount of notice as his initial amendment.
Of course, it can be legitimately asked why he bothered at all. But maybe it was a constitutional itch that Ahern could not help but scratch. More fool him.
It was all just a stopgap of course, defining something that has been in the constitution since its inception before the Oireachtas could get around to getting rid of it, probably as part of other constitutional referendums. It was never intended to actually be pursued as a legitimate law. Nearly all parties support such a choice, and the current governments programme included its abolishment as a provision.
So, that is where we are now. A blasphemy law that is as impotent as it is abhorrent, with no will from anyone in government to actually enforce it, winding down to an inevitable vote on its utter destruction.
I write all this because there really isn’t anything to talk about. Blasphemy has no place in the constitution. The church has no place in the constitution. 2013 folks. Time to start moving forward on separation of church and state in a more pro-active manner. The convention will, presumably, pass through the expected resolution with percentage to spare.