Blasphemy

Readers of these letters will know already that one of the areas that I find the most interesting—and also the most challenging— to write about is the precise way my commitment to the values that underlie our American republic meshes (or doesn’t mesh) with my equally strong commitment to the Torah-based values that inhere in traditional Jewish life.

That was the reason I chose to write a few weeks ago about the Supreme Court’s decision to consider the case of the Colorado baker who declined to create a wedding cake for a same-sex couple, and why I continue to find that case so interesting. On the one hand, as someone unambiguously committed the notion that the civil rights of gay people deserve to be protected by law no less forcefully or fully than the civil rights of any other group within our American society, I can easily identify with the couple who felt discriminated against by the baker’s refusal to serve them. On the other hand, I also feel—and just as strongly—that it can never be a good thing—not for members of religious minorities but also not for the nation itself—for the freedom of religion guaranteed by the Bill of Rights to be attenuated by restrictive legislation or undermined by the courts. I wrote then how struck I was by the many articles and essays I read on both sides of the issue that appeared to consider the matter as unambiguously simple and clear-cut, whereas to me it seemed and seems thorny and complex.

I do not wish to write again about that specific case today, but rather to address a very interesting issue that I see growing out of it: the question of whether the freedom of religion guaranteed by the Constitution should rationally be taken to include speech itself. The baker, after all, is not arguing that anyone has restricted his right to practice his faith at home or in church in whatever manner he wishes, but rather that custom-baking a cake for gay wedding reception would imply that he personally supports the notion of same-sex marriage and should for that reason only be something he has the constitutional right to decline to do. Leaving aside the question of whether non-verbal activity like baking a cake—even a super-fancy one—should be considered speech at all, I would like instead to consider the question of whether speech itself is can be reasonably qualified as enough of a religious act to be protected by the First Amendment.

Our Jewish tradition certainly thinks so, making blasphemy into the kind of capital crime so potentially injurious to the public weal that the entire people is called upon to participate together in the blasphemer’s execution. Nor does Scripture allow for the possibility that this is meant as some sort of kashrut-style prohibition meant to apply solely to Israelites: “as well the stranger as he that is born in the land,” the Torah solemnly announces, “when he blasphemeth the name of the Lord, he shall be put to death.” So that’s clear enough, but what is being prohibited exactly? Our ancient sources go back on forth regarding the details, but those discussions mostly center around the question of what specifically someone would have to do actually to merit execution as a blasphemer—whether such a person has to curse God using the most sacred of divine names, whether it counts if someone curses another individual using that name of God as part of the imprecation, whether speaking in a vulgar way about God is enough to warrant indictment, whether insulting God’s Torah counts, whether the crime even can be committed by someone who does not speak Hebrew, etc. But the notion that speaking aloud in a way that disrespects the name of God is sinful and wrong is a cornerstone of our Torah’s approach to the morality of speech itself.

And that brings me to a remarkable booklet entitled Respecting Rights? Measuring the World’s Blasphemy Laws, published just this last July by the United States Commission on International Religious Freedom, the federal commission with the mandate specifically to report on violations of religious freedom internationally and to make policy recommendations to the President, the Secretary of State, and to the Congress. It is, to say the least, an eye-opening read. (Click here to the see the full report online and here to see an abbreviated version.)

To my slight amazement, it turns out that a full third of the world’s nations, 71 countries in all, have laws that make blasphemy illegal. How this is specifically defined varies, but the basic principle is that there are 71 countries in which you can face serious punishment if you are convicted of having spoken out in a way deemed insulting to God or, in some cases, to religion itself.

Some of the countries on the list were no surprise at all, countries like Iran, Saudi Arabia, Egypt, Somalia, and Syria. But others were amazing to me, particularly Western-style democracies like Denmark, Switzerland, Ireland, and Spain. Israel is on the list. And, most unexpected of all (to me personally, at any rate), so is Canada.

The laws themselves vary widely. But the punishments are severe in almost every case: of the 71 nations that have laws prohibiting blasphemy, 59 punish individuals convicted of the crime with imprisonment. In two other nations, Iran and Pakistan, convicted blasphemers risk execution. Two more, Russia and Kazakhstan, punish convicted blasphemers with compulsory or corrective labor. One country, Sudan, punishes the blasphemer with the kind of corporal punishment administered with a whip.  Ireland, Spain, and Switzerland levy fines against anyone convicted of blasphemy. Three countries, Afghanistan, Eritrea, and Saudi Arabia, do not have specific punishments enshrined in law and rather ominously leave the decision in the hands of the presiding judge.

I read it, but I couldn’t believe it. Canada really imprisons blasphemers? In what century? And yet…there it is, in the Criminal Code of Canada, article 296: “Everyone who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.” Yes, the is a huge “but” that is also enshrined in Canadian law to the effect that no one may be convicted of an offense under this section of the code merely for expressing “in good faith and in decent language…an opinion on a religious subject.” So that softens the blow considerably: to qualify for your up-to-two years in prison, you have either to express your blasphemy hypocritically or to couch it in foul language. I was unable to discover how many Canadians, if any at all, have been convicted lately of blasphemy, but I suspect the number is quite low. In fairness, I should also note there is a bill before the House of Commons right now that would repeal the law in its entirety. But the fact that the law exists at all is what amazed me. And continues to amaze me!

What nations mean by blasphemy also varies. The law in Brazil refers to someone “publicly vilifying an act or object of religious worship.” The law in Bangladesh is much broader and makes indictable the individual who merely speaks in such a way that “hurts the religious sentiments” of another person. Finland takes a more biblical approach, specifically directing the law against any who “publicly blasphemes against God.” Article 173 of the Israeli Penal Code is somewhere in the middle and threatens with one single year’s imprisonment anyone who “publishes a publication that is liable to crudely offend the religious faith or sentiment of others” or who “voices in a public place and in the hearing of another person any word or sound that is liable to crudely offend the religious faith or sentiment of others.” In Indonesia, anyone who expresses “feelings of hostility, hatred, or contempt” towards any religion at all with the intention of discouraging someone from adhering to that faith or who speaks “disgracefully” about any religion is liable to up to five years in prison. You get the idea.

In America, of course, we have no such laws. The American approach was probably best summed up by Supreme Court Justice Tom Clark, who wrote in 1952 that, “from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” So that’s clear enough.

But what about me? I live within a tradition that takes blasphemy seriously and considers it the kind of offense that should apply to all, as a kind of universal wrong that society would do well to outlaw. But the American in me is with Justice Clark and finds the thought of punishing Americans for speaking out hostilely towards any religion—or towards religion itself or towards God—not something merely to be condemned a tasteless, but something wholly inconsonant with our democratic ideals as enshrined in the Bill of Rights.

So I get the baker’s argument that he does not wish to be forced by the courts to “say” something he finds spiritually repugnant. I wouldn’t wish to be either. Yet, for all the reasons I detailed in my previous letter, I think the Supreme Court should nevertheless uphold the lower court's rulings and require that he not discriminate against gay couples merely because he doesn’t approve of same-sex unions. I suppose I can live with a little inconsistency when it comes to squaring my rootedness in Torah values and my devotion to the principles that underlie our American democracy. Just you’d think I’d be better at it by now!