Yes, that’s right. We are having a referendum on Friday, though you’d be hard pressed to find much mention of it among political parties, the media or anyone else. The 37th amendment to the Irish constitution is flying very much below the radar and it seems the only thing that might stop it is sheer apathy by the electorate. But how am I voting?
Let’s be clear from the start: the idea that the ill-defined concept of blasphemy should not only be part of a modern constitution, but that the government should then be mandated to make it a criminal offence, is pretty dumb, and Article 40.6 is rightfully recognized as a dead rubber of a constitutional provision, never enforced and only remembered on brief occasions. If we were writing a constitution from scratch you wouldn’t dream of including such a term as something for the state to ward against specifically.
But there is an issue with this amendment and it is this. Right now, the section in question reads like this:
“The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”
And if the electorate gives their assent to the proposed amendment, it will then read like this:
“The publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law.”
You can probably see where I am going with this. If we are removing blasphemy from the constitution, in effect declaring that it has no place in the nation’s highest legal document, then why are we keeping the concept of “indecent matter” in there?
Senator Michael McDowell gave a decent speech on this topic during the passage of this referendum bill, which you can read here, but the salient points are:
-This amendment will not alter the fact that free speech in Ireland is not unqualified.
-We have no clear idea what the term “public order and morality” actually means.
-We have no clear idea what “indecent matter” is in a modern context (a 70 year old law defines “indecent” as “suggestive of, or inciting to, sexual immorality or unnatural vice or likely in any other similar way to corrupt or deprave” in the context of the widely discredited and little-referred to nowadays Censorship Board)
-Therefore, it can be argued that expressions we could consider blasphemous could also be considered “indecent” and therefore criminal in pursuit of defending “public order and morality”.
This amendment presents us with that quandary of declaring that indecent material is illegal, but that blasphemous material can never be considered indecent. Or, to put a flip on that, if someone takes offence at perceived blasphemous material, there would appear to be nothing stopping them from pursuing a criminal charge against the proposed offender on the grounds of it being “indecent matter”.
In other words, nothing is really changing here, in tangible terms. And that is an issue. It would have been better, perhaps, for a more far-reaching exploration into what this article should have been changed into, a recognition that it is possible for a constitution to include terminology related to hate speech instead of these nebulous concepts. And, as well, we could have altered the article to make clear that the Oireachtas is not obliged to consider such things, automatically, as “an offence which shall be punishable according to law”. Instead, we could have defined the legislature as the highest possible regulator of free speech, as a last resort defender of religious sensibilities. And not just Christian sensibilities, despite the intrinsically Roman Catholic nature of the constitution, which still declares God as the ultimate authority over men and nations in its preamble.
And yet, we also need to be slightly less, shall we say, literal in our examination of this amendment. The blasphemy provision in the constitution has always been largely ceremonial, words meant to create an impression and not actual consequential law. They are a relic of a very different time, reflective of the authors of the constitution and the world that they lived in. We are not, unlike other countries I could name, enslaved to the notion that those men and their words are sacrosanct. We should be aiming, all the time, for a more secular modern constitution.
We should also be aiming to eliminate uselessness. The blasphemy article and the associated law are dead letters, pointless legislation that would be almost impossible to enforce if anyone was inclined to actually try. The few times someone has attempted to make use of them in a legal contest have resulted in almost no convictions. And we all know they never will. Pursuing a criminal charge against someone for blasphemy, in 2018, is an embarrassing idea for any country, and for a legal system that, frankly, has better things to be doing.
Moreover, eliminating this provision is another step in the road to presenting Ireland as a progressive liberal place, emerging from the shadow of Church-borne conservatism. We have eliminated the special position of the Catholic Church, we have legalised divorce (though it could be better), we have legalised same-sex marriage and, soon, we shall finalise the legalisation of abortion services. Eliminating blasphemy from the constitution is not quite on the same level as those, but it is in the same ball park.
And, should we have to deal with someone who is inflaming hatred against a particular religion or members of that religion, the constitution will continue to have provisions that will allow us to do something about it. I would hope such actions would be exceptional, for use only in extreme cases, but remain they will.
So yes, I will vote to remove blasphemy from the constitution, and so should you. This isn’t a perfect amendment, but the exercise is largely ceremonial. In the end, the constitution is a better document without the word “blasphemy” in it.
Whether I think the amendment will actually pass is another thing entirely. We’ve seen these sort of “house keeping” amendments fail in the not-too-distant past, due to low turnout, general apathy and a lack of campaigning from the political powers that be. The Presidential election taking place the same day doesn’t seem likely to end up with a large turnout. So, despite what I would consider to be overwhelmingly large support for the removal of blasphemy from the constitution, there is still a chance that a lack of actual ballots will scupper things.
You shouldn’t let that happen. The power to change the constitution is a right rarely vested directly in the ordinary voter, so the opportunity to exercise that right is not something that should ever be refused, no matter how trivial you feel the topic at hand is. Vote on Friday, and you’ll have done your part in the pursuit of democratic legitimacy and in modernising a constitution still badly in need of modernisation. There are tougher battles to come, but this little skirmish still has to be handled.