"Please let there be a legal topic to write about other than Brexit…"
– Ok… (pause) The Irish law of blasphemy!
— David Allen Green (@davidallengreen) May 7, 2017
So, rarely being one to shirk a challenge, here goes.
The (fairly) new law of blasphemy in Ireland is in the spotlight after media reports that the Gardaí have launched a blasphemy probe into comments made by Stephen Fry in 2015 on the television show The Meaning of Life. (See, for example, the Irish Independent: Why is Stephen Fry being investigated by gardaí for blasphemy and what happens next?) When asked by Gay Byrne what he might say to God at the pearly gates, Mr Fry is alleged to have replied: “How dare you create a world in which there is such misery? It’s not our fault. It’s not right. It’s utterly, utterly evil. Why should I respect a capricious, mean-minded, stupid god who creates a world which is so full of injustice and pain?”
Article 40.6.1.i. of Bunreacht na hÉireann declares that “The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law” and this has been taken to require a prohibition on blasphemy; however, in Corway v Independent Newspapers  IESC 5 the Supreme Court held that there was no clear statutory definition of blasphemy to give effect to that provision – in effect, striking it down as incompatible with the Constitution’s guarantees of religious equality and freedom of expression.
To fill the legislative gap, the current crime of blasphemy was added at a fairly late stage in the passage of the legislation to reform the law of defamation and became s 36 Defamation Act 2009. S 36(1) declares that a “person who publishes or utters blasphemous matter” shall be liable on conviction to a fine not exceeding €25,000, while s 36(2) provides that 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.”
The state of the law was considered by the Convention on the Constitution, which concluded in its Sixth Report, The removal of the offence of blasphemy from the Constitution,
- that the offence of blasphemy should be removed from the Constitution;
- that it should be replaced by a general provision to include a prohibition on incitement to religious hatred; and
- that a new set of detailed legislative provisions should be introduced which would include provisions on incitement to religious hatred.
The prerequisite to amending the Constitution is a referendum. The then Minister of State at the Department of Justice and Equality, Aodhan Ó Ríordáin, told Dáil Éireann that there would be a referendum to remove the requirement for a crime of blasphemy from the Constitution, noting that “In practice, there have been no prosecutions under the 2009 Act and the last public prosecution for blasphemy in Ireland appears to have been brought in 1855”. But that was in a statement to the Dáil on 2 October 2014 and the referendum has still not happened.
The consensus seems to be that it is extremely unlikely that Mr Fry will be prosecuted for what sounds to me like a question that theologians have been asking (if rather more politely) for aeons: surely it’s what’s known in the trade as theodicy. If he were prosecuted and found guilty, however, it looks like just the kind of case that Strasbourg would relish.
Dr Eoin O’Dell, of the Trinity College, Dublin, Law School, has written a helpful and comprehensive post on the issue: Blasphemy is in the news again; it should be removed from the Constitution, as the Constitutional Convention recommended.