Respecting the Divine: why Australia and all democracies should care about blasphemy laws
During the past few weeks there has been a significant increase in the number of vicious and insensitive anti-Christian public ‘artworks’ and vandalism of churches across Australia. It would be naïve to think Christianity is not frequently insulted or targeted by artists and the media, however, this spike occurred during the rapturous celebrations of the recent same-sex plebiscite when, supposedly, ‘love’ and ‘tolerance’ won.
Republishing images of these religious assaults would not be appropriate, as it would inflict undue pain and distress on fellow Orthodox and other Christian readers. After witnessing these most recent incidents the big concern is what should be done to encourage religious and civil cohesion within our pluralistic-democratic societies, like Australia: could enforcing blasphemy laws be the answer? But before one can argue the merits of this idea one has to understand how various societies in the Developed World (including Orthodox countries) implement such laws, how such laws should operate and demonstrate why such laws are not a contradiction, but instead, critical to upholding Western values.
Use of blasphemy laws around the world & Australia
Majority of Western countries have in various degrees some level of blasphemy laws, but are usually weak or end up being repealed. Furthermore, such incidences are rarely prosecuted. There are many reasons why these laws are not effectively activated:
conflict with Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) which protects freedom of expression which many countries, both signatories and non-signatories like Australia, enforce;
the dubious subjective nature of interpreting or identifying whether the expression was blasphemous; and
concern such laws encourage or protect vigilante-fuelled violence.
In the United States, which produces much of the world’s mainstream entertainment, blasphemy laws do not exist at the federal level. Under the Constitution the First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…
This Amendment was meant to protect free speech and religious exercise though the Supreme Court’s interpretation has meshed them together and expanded it to prevent individual states from prosecuting against blasphemous speech or religious insults, as this would be seen as infringing speech.
The only time such protection could be instigated against blasphemy is when crimes are committed against a person because of incitement of hatred towards their identity as a religious group. The problem with this position is it allows individuals and corporations to insult the Divine as long as they do not identify the individuals who practice these beliefs. For example, insulting Jesus Christ would not attract punishment but making a negative comment about Jews would.
Blasphemy laws in some Orthodox countries
Unlike most Western nations, there is considerable protection for the Divine in these societies.
In Greece, Article 198(1) of the Penal Code states, ‘one who publicly and maliciously and by any means blasphemes God shall be punished by imprisonment for not more than two years’ and Section 2, ‘anyone…who displays publicly with blasphemy a lack of respect for things divine, is punished with up to 3 months in prison’. By extension Article 199 states people cannot blaspheme against the Greek Orthodox Church or any other religion tolerable in Greece. The country’s blasphemy laws have been used several times with varying outcomes.
In Russia, blasphemy laws were created in 2013 after the notorious Pussy Riot stunt in Moscow’s Cathedral of Christ the Saviour. The laws provide jail terms of up to 3 years or fines of up to US$15,000 for ‘offending religious feelings’ or ‘intentional’ and ‘public’ displays that cause ‘offence to religious sensibilities’.
Blasphemy laws in Australia
As a consequence of being under the Commonwealth, Australia inherited England’s blasphemy laws, which exist under common law. So, whilst there are no such laws at the federal level, technically, blasphemy laws do exist but very rarely used. In more recent developments Tasmania, Queensland and Victoria expanded ‘vilification’ from ‘racial’ to include ‘religious’ vilification.
Looking at Victorian law (as it is the most populous Orthodox state) ‘religious vilification’ was added to the Racial and Religious Tolerance Act 2001. Under s8(1) it prevents persons from engaging in conduct that ‘incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons’.
In a nutshell, this law is only effective if the conduct can be proved to cause others to develop a sense of hatred or ridicule towards a specific religious group. This law does not protect the Divine, but the reputation of these people. This means an individual can mock God and get away with it because it does not target a person or group and the exceptions for pubic conduct under s11(1) make this law even harder to challenge the conduct. For example, claiming the conduct was done in ‘good faith’ for artistic expression enables the defendant to use the excuse of ‘art is meant to challenge’ and thereby avoid persecution and continue to insult.
What sort of law should exist in Australia?
As Orthodox Christians the One God in Trinity, the Theotokos, Prophets, Martyrs, Saints and Angelic Hosts are regarded as living beings both in this life and the next. Orthodox treat the Divine the same as their family – they are loved, respected and honoured. Simply, what is suggested in this article is blasphemy laws that:
protect the Divine, holy persons, religious symbols and objects from being mocked, insulted or ridiculed; and
religious authorities should only be subjected to balanced, fact-supported criticism and sensible satire.
This law does not prevent a person from expressing their non-belief in God or asking questions, all that is requested is sensitivity and respect for the Divine realm, which is extremely important to those who believe. Furthermore, this law would not only protect Christianity but all religions. Orthodoxy does not conquer or subject other faiths to submission. The Orthodox Church has shown many examples of multi-faith cohesion: St Catherine’s Monastery in Mt Sinai and the Muslim nomads, the Old City of Jerusalem and modern-day Australia.
Opponents of blasphemy laws will argue it prevents open discussion and criticism of religion. What this version requests is not the ‘shut-down’ of opinions and discussion, but for people to show respect to the central Divine-figure of each religion. It is important there be fair and evidence-based discussion of organisational aspects of various religions to ensure they operate in accordance with their doctrine. If anything, opposition to blasphemy actually provides a means of protection for people to aggressively and maliciously hurt the core-centre of believers – how is this ‘open’ and ‘respective’ discussion within a civil society?
Democratic principles vs. blasphemy laws
Western societies are hesitate towards shielding the Divine from insult and respecting the sensitivities of religious people because of what they perceive as breaches of democratic principles. However, do blasphemy laws really cause such conflict?
Freedom of expression
This is the most common reason used to trump the merits of blasphemy laws, even described as the most important human right of them all. However, even the most prominent defenders of human rights concede that even this freedom needs to be limited when issues of defamation, inciting to hatred, violence or discrimination are promoted by this freedom against a person, group or community.
So, whilst there is this acknowledgment for some limitation on freedom of expression, oddly enough, religious sensitivity is disregarded for the fear it may protect religion against criticism. If one looks at the history of the Orthodox Church, especially during the seven Ecumenical Councils, it was and still is common practice to openly discuss and critically debate matters of doctrine.
By protecting the Divine and allowing measured, civil discussion of religious groups still promotes freedom of expression, the same way one cannot freely insult another’s character or ethnicity whereby the legal defences of defamation, slander or racial vilification are enacted. So then, logically, one should not insult the Divine, which defines and shapes their personality and identity.
Freedom of media
As with freedom of speech, blasphemy laws will not limit the right of media outlets, journalists or artists from expressing views on religion. Nor should blasphemy laws severely restrict creativity, however, use of satire and criticism needs to be balanced and respectful the same way such outlets are extremely careful of how their present various minority groups and gender roles.
Freedom of religion
Allowing blasphemy supposedly ‘encourages’ freedom of religion in the respect that it allows a person to decide whether or not to belong to a religion at all. It should be noted, having blasphemy laws is not about preventing people from being atheists, but preventing others from tainting a faith based merely on their personal perspective. But how can one claim this ‘freedom’ of religion when the religion itself is being constantly attacked and does not allow individuals to exercise it without undue emotional pain? A law that prohibits insult and mockery of the Divine actually supports and encourages freedom of religion because it allows the person to practice without the influences of others.
Allowing freedom of speech to exceedingly override freedom of religion is a great injustice. It prevents people of faith from defending attacks against the Divine. Therefore, how can we say we are being truly democratic when we are reducing, even infringing, one right (‘religion’ as enshrined under Article 18 of UDHR and ICCPR) and the ability of these people from deflecting blasphemous attacks? Those who ridicule religion are essentially given an advantage because people of faith cannot defend themselves, essentially, with one arm tied behind their back.
Opponents generate much fear mongering after the world witnesses protests or extreme acts of violence after a blasphemous work offends. Such examples include Charlie Hebdo and the Christian governor Basuki Tjahaja Purnama in Indonesia. These are just a hand-full of ugly examples of mob violence, whilst the overwhelming majority of blasphemous acts – which occur daily in mass media and public spaces – do not result in this kind of destructive behaviour.
Just because of these anger-fuelled incitements does not mean peaceful and legal means of defence against blasphemy should not be available. Two wrongs do not make a right, especially if that second wrong is a legal environment, which allows peoples’ beloved religious figures to be distorted.
The Australian way
Though blasphemy laws in Australia are somewhat ‘befuddled’ – not taken seriously yet, strangely, offer protection to religion identities – does this mean we cannot have blasphemy laws that are a reflection of being ‘truly Australian’?
Australia is one of the most diverse, multicultural societies in the world yet maintains a relatively strong sense of social cohesion. Such an achievement was made possible through unique values: respect, fair go and tolerance. If these are truly Australian values – especially ‘respect’ and ‘tolerance’ – then having more defined blasphemy laws will promote a better Australia.
Terms like ‘equality’ and ‘acceptance’ seem to be the trendiest of catchphrases in recent times, but how can one truly stand for these values, calling themselves Australian, when they do not show this to people of faith? Unfortunately, it is highly unlikely given the direction of other Western nations that Australia will strengthen such laws. This being the sad reality then what can be done when the Divine is mocked?
It seems the only time authorities will prosecute is when enough people file a compliant expressing they are ‘personally’ insulted. Under the current system, the faithful must come together and get as many people from the community to lodge a complaint. However, more importantly, a strong case needs to be made showing the offensive expression incited hatred or severe ridicule towards the community. Also, the nature of the conduct must be carefully analysed to avoid any of the exceptions as stipulated under s11 (Victorian Act) from being used as a defence.
If a country believes in democracy – valuing and honouring human rights – then it needs to realise having blasphemy laws do not limit those freedoms (implied or expressed) but helps fully respect all its citizens. It will encourage greater tolerance for diverse communities and maintain a strong and vigorous democracy. When one right overshadows another, it is not good social justice, just bad democracy.
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 Jones v Toben  FCA 1150
 www.end-blasphemy-laws.org, above n 1.