Michael McDowell (Independent) | Oireachtas source

The Government, perhaps with a view to ushering through the blasphemy referendum, failed to carefully consider the remainder of the Constitution. As Senators know, Article 44 was amended to remove the special position of the Roman Catholic Church and references to various other denominations, including the Jewish denomination. The inclusion of the reference to the latter domination was quite a progressive and enlightened measure for a Constitution adopted in 1937 in light of native anti-Semitism in Ireland and prevalent anti-Semitism across Europe at the time and not just within the Nazi ideology. Article 44.1° of the Constitution as it currently stands provides:

The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

The Constitution still contains a provision that "the homage of public worship is due to Almighty God" - presumably the Christian God referred to in the Preamble to the Constitution - and states that "It shall hold His Name in reverence, and shall respect and honour religion." Does a state respect and honour religion if it allows unrestricted assaults of the most insulting kind on religion?

An interesting definition was included in the Defamation Act in response to comments by the Judiciary regarding the difficulty of prosecuting for blasphemy in the absence of its definition. Section 36(2) states:

a person publishes or utters blasphemous matter if— (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 complete defence to prosecution was provided in cases where it is possible to prove that "a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates". In other words, one would have to be able to prove that the utterance or publication was for the purpose of argument, etc. Under the Bill, a gratuitous attack on another person's religion, without reasonable foundation in political or moral discourse or elsewhere and based on an intention to cause offence to the adherents of that religion, would be legalised. Such an attack would involve an intent to cause offence and outrage without a reasonable basis for so doing, such as trying to promote debate and so on. A person such as myself may query whether Joseph Smith ever had a Book of Mormon, whether the Angel Moroni ever appeared to him and whether that religion is based on a fraud, or assert that L. Ron Hubbard, the founder of Scientology, is a complete fraud. One can make cases such as those for the purpose of argument, as happens on a frequent basis. However, I am referring to a person doing something designed to cause outrage. For example, one may seek to offend Catholics by publishing material designed to cause outrage and involving associating footage of a Mass with lewd, indecent or revolting aspects of human behaviour. Under the Bill, that would be legalised. It is not sufficient for Senator O'Sullivan to state that this can be dealt with under legislation relating to hate crime. If I publish something appalling about the act of transubstantiation as it is understood by Catholics, combine it with lewd or filthy material and put it up on advertising hoardings around the country and my intention is to offend and cause deep distress among Catholics, I would be committing an offence under the existing law. However, doing so would not be an offence if the Bill is enacted unless it could be proved that it was an attempt to cause hatred against Catholics, which is quite different from shocking them to their core and causing them to be upset to the marrow of their bones.I am a liberal who is in favour of freedom of speech and the right of anybody to mock and deride vigorously the philosophical and religious views of others. However, this Bill goes a little further than that. I do not have to bring a placard or a draft of a hoarding into the House to show how one could put something up that is designed simply to offend, disgust and antagonise. It would not be an attempt to incite hatred but rather an attempt to show contempt for, rubbish and insult a particular view without involving hatred. Perhaps it is time for Article 44.1° of the Constitution to be repealed. To reiterate, it states:

The State acknowledges that the homage of public worship is due to Almighty God [capital "A" and capital "G"]. It shall hold His Name [capital "H" and capital "N"] in reverence, and shall respect and honour religion.

That was clearly inserted as a Christian provision, not one representing Scientology or any other religion. Would we be wise at this stage simply to say that there is nothing wrong whatsoever in setting out to disgust people and having no protections for the persons who are disgusted? I acknowledge the difficulty in making that case. If we look at the preamble and various portions of the Constitution, it still has what was once described by the Judiciary as the character and flavour of a Christian and democratic society. That is not necessarily a bad thing.