Ireland is on a roll when it comes to progressive social reform. First there was same-sex marriage, approved in a constitutional referendum in 2015 with a “yes” vote of 60.5%. Then came repeal of the prohibition on abortion, approved earlier this year by 64.1%.
Now it’s blasphemy. A referendum last Thursday agreed to repeal the portion of article 40.6 of the Irish constitution that provides for the criminalisation of “The publication or utterance of blasphemous … matter.” The “yes” vote was the highest yet: 64.9%. Every single constituency voted in favor.
But it’s not all good news. Just the previous day, the European Court of Human Rights upheld the 2011 conviction of an Austrian citizen for blasphemy, rejecting the claim that it contravened the guarantee of free speech in article 10 of the European Convention on Human Rights.
The juxtaposition of the two results proved irresistible to commentators. “Erasmus” in the Economist, for example, praised the Irish result but said that “For free-speech advocates [the ECHR decision] was a big step backwards.”
And since the Austrian defendant had been convicted of insulting Islam, not Christianity, the decision was also condemned by the usual chorus of professional anti-Muslims, as well as by the (mostly overlapping) crowd who enjoy the opportunity to attack European institutions in general.*
I think the ECHR got this one wrong. While I don’t dispute its characterisation of the defendant’s behavior – it said her statements “were not phrased in a neutral manner aimed at being an objective contribution to a public debate” – I don’t believe that should take it outside the protection of freedom of speech.
Religious fundamentalism of any sort is a blight upon society. We should err on the side of robust debate on religious questions, not on the side of protecting religious sensibilities. The gradual abolition of blasphemy laws across the democratic world has been a mark of the Enlightenment, and this is no time to be backtracking.
Having said that, it is well worth reading the ECHR judgement in full, to see the way in which it engages with the issues. I think it reaches the wrong conclusion, but it is not making the full-scale attack on freedom that some pundits would have you believe.
Most important is to understand that the ECHR is not itself imposing some sort of penalty for blasphemy, or requiring member states to do so. It is simply declining to overturn Austria’s law and its application by the Austrian courts. As the judges said, “it is not the Court’s task to take the place of the national authorities.”
In other circumstances, the critics of this decision would usually be applauding the exercise of judicial restraint in the way the court defers to the Austrian authorities – according them “a certain margin of appreciation,” as it puts it. But even judicial activism is approved of when it serves the greater cause of beating up on Muslims.
The hypocrisy is particularly striking because this is an international European institution, of the sort that is loathed on the right for its interference with national independence. (The Convention and the ECHR are particular hate figures for Brexiters.) It would be ironic if that very hostility was a factor in the court deciding that it needed to be circumspect in cases like this.
Neither of last week’s decisions will have a huge practical impact. There were no prosecutions for blasphemy in Ireland anyway; the Austrian defendant had only suffered a fine of €480, and nothing the ECHR said would prevent Austria’s new centre-right government from repealing the blasphemy law if it wants to.
But symbolism matters, and at the symbolic level the voters of Ireland got it right, while the judges in Strasbourg got it wrong.
* Technically the ECHR is a creature of the Council of Europe, not the European Union, but the distinction is often ignored.