Blasphemy laws abroad and why the First Amendment refuses them

Here is a sentence that sounds like a paradox and is not: the best friend a believer has is a government forbidden to take sides in a theological quarrel. Believers who miss that point tend to learn it the hard way, usually the moment the state's favorite theology turns out not to be theirs.

Let me define terms, because the whole debate turns on them. Blasphemy is speech that insults, mocks or denies what a religion holds sacred, and a blasphemy law makes that speech a crime. Apostasy is the abandonment of a religion, and an apostasy law punishes the person who leaves, or the person who helps him leave. Neither is the same as incitement, threats, fraud or harassment, which every free country already punishes. A blasphemy law punishes the content of an opinion about God. That is the line, and the First Amendment sits squarely on the other side of it.

I will make the case in five steps. One, blasphemy laws are common abroad and the evidence of who they hurt is public record. Two, the harm falls hardest on religious minorities, including Muslim minorities. Three, the American refusal to enforce such laws is not hostility to religion but a bargain, written into the Founding, that protects every faith. Four, the best argument for these laws deserves a fair hearing, and it fails. Five, the world has been moving, unevenly, toward the American position, and conservatives should say so.

What the laws look like abroad

Start with the best-documented example, because it is the one most often used to defend the idea and the one that best exposes it.

Pakistan inherited a colonial-era penal code from the British. Under the military government of General Zia-ul-Haq in the 1980s, the code was expanded sharply. A set of provisions added in 1980 and 1984, now numbered 298-A, 298-B and 298-C, targeted the Ahmadiyya community, a Muslim minority that Pakistan's parliament had declared non-Muslim by constitutional amendment in 1974. Those sections target the Ahmadis' religious practice and the way they describe themselves. Read that again. The state decided who counts as a Muslim, and then criminalized a Muslim minority's way of praying.

In 1982 the code gained Section 295-B, which punishes defiling the Quran, with life imprisonment. In 1986 it gained Section 295-C, which punishes defiling the name of the Prophet Muhammad. The text of 295-C, as amended, provided for death or life imprisonment, and in 1990 the Federal Shariat Court held that death should be the only penalty. Those are the provisions people mean when they say "Pakistan's blasphemy laws," and they date from the 1980s, not from antiquity.

Critics of the provisions describe a pattern of accusation that the legislation invites. The offense turns on what someone else says you said, and a judge may be reluctant to examine the alleged words themselves. The accusation alone can set off a mob. Asia Bibi, a Christian farm worker, was arrested in 2009 after a quarrel with neighbors and sentenced to death in 2010. She spent years on death row, and Pakistan's Supreme Court acquitted her in October 2018. Two men who argued publicly that the law was being abused did not survive the argument. Salmaan Taseer, the governor of Punjab, was assassinated in January 2011 by his own bodyguard, and Shahbaz Bhatti, the federal minister for minorities, was killed in March of that year. Both had spoken against the misuse of the provisions.

Pakistan is far from alone. A number of countries in the Middle East, South and Southeast Asia and Africa keep blasphemy or apostasy provisions. I will not recite a list of countries and sentences from memory, because they change, and the right habit is to check a current source such as the State Department's annual report on international religious freedom, which Congress requires under the law I describe in The 1998 law that put religious persecution on America's foreign agenda. Two things are safe to say. The laws are on the books in many places, and they are used against minorities and dissenters far more often than they are used to protect a majority from a real threat.

Who actually gets prosecuted

Here is the fact that ought to bother everyone, left and right, believer and skeptic. When a state gets the power to punish offense against the sacred, the first question is: whose sacred? The answer is always the sacred of whoever holds power. A Christian woman is accused by Muslim neighbors. An Ahmadi shopkeeper is prosecuted for a greeting. And a member of any minority can be accused by someone with a grievance that has nothing to do with theology. The point many Western critics miss is that Muslims are among the targets too: the Ahmadis, whom Pakistan's own law singles out, are Muslims by their own account.

That is why I say Muslim minorities are among the victims, and why no American conservative should treat this debate as a contest between the West and Islam. It is a contest between the principle that the government decides which beliefs are true and the principle that it does not. The mechanism is the same wherever it appears, only the orthodoxy changes. If you would not trust the American government to pick the one true religion, you should not defend any government's right to do it.

I want to be fair about the opposite danger. Conservatives rightly criticize Western elites for a double standard in which Christianity may be mocked freely and other faiths receive tender protection. The cure for that double standard is not to build blasphemy law for everyone. It is to apply the same rule of free argument to everyone, and to defend the Christian's right to be mocked as firmly as the Muslim's. Equal liberty, not equal censorship.

The American refusal, from the Founding

The founding generation knew blasphemy law, because they had inherited it. Maryland's 1649 Toleration Act, remembered today as a landmark of tolerance, still prescribed death for denying the divinity of Christ, an irony worth sitting with. Tolerance, in the seventeenth century, had borders.

Then came Virginia. In 1786 the General Assembly enacted Thomas Jefferson's Statute for Religious Freedom, written in 1777 and shepherded through by James Madison, which declared that no man shall be compelled to support or attend any religious worship or be punished for his opinions in matters of religion. Madison's Memorial and Remonstrance of 1785 had argued the underlying principle: religion is a duty owed to the Creator, and it must be directed by reason and conviction, not by force or violence. Faith that is coerced is not faith. That is a theological argument, and a good one, and it is why many of the most devout founders signed on.

The First Amendment then wrote the principle into the Constitution: "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." Three clauses cooperate here. The Establishment Clause forbids the government to prefer a faith, and a blasphemy law is exactly such a preference. The Free Exercise Clause protects the believer who dissents from the majority's reading. The Speech Clause protects the critic. A blasphemy statute would offend all three at once.

The old state statutes did not disappear overnight. A case often cited as the last in which an American was jailed for blasphemy is that of Abner Kneeland, a Massachusetts freethinker whose conviction for writing against belief in God was upheld by the state's highest court in 1838 and who served sixty days in jail. In the twentieth century the Supreme Court incorporated the First Amendment against the states. In Cantwell v. Connecticut (1940), the Court applied the Free Exercise Clause to the states, and in Everson v. Board of Education (1947), the Establishment Clause, a case I discuss in Everson v. Board of Education, the school bus case that changed church and state.

Joseph Burstyn, Inc. v. Wilson (1952)

The decisive modern case is about a movie.

In 1950 the distributor Joseph Burstyn imported The Miracle, a short Italian film by Roberto Rossellini. New York's film licensing law allowed the censors to refuse or revoke a license for a film that was "sacrilegious." The film was shown in New York, and in 1951, after a review by the state's Board of Regents, its license was ordered rescinded. The distributor sued.

The question was whether a state could ban a film because it was sacrilegious. In 1952 the Supreme Court, in an opinion by Justice Tom Clark, said no. Two holdings matter. First, motion pictures are a form of expression protected by the First and Fourteenth Amendments, which overturned the Court's own old holding in Mutual Film Corp. v. Industrial Commission of Ohio (1915) that movies were mere business. Second, and this is the point for us, the word "sacrilegious" was too vague to survive, and more fundamentally, the state had no legitimate interest in shielding a religion from criticism. In Clark's words, it is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine.

Note what the case protected. The state moved against a film that offended many believers, and the Court told the state to stand down. A conservative may sympathize with the offended believers; I do. And yet the rule the Court set protects the believer as much as the filmmaker. The same principle, a generation later, would protect the street preacher, the Christian film that offends a secular audience, and the sermon that says a hard thing about another religion.

The strongest case for blasphemy law

I promised to steelman it, so let me do it in words its defenders would accept.

The best argument runs like this. A society is held together by shared reverence. Contempt for what people hold most sacred wounds them in a way ordinary criticism does not, and wounded people sometimes lash out. A law against blasphemy therefore keeps the peace by removing a cause of violence, and it expresses a moral truth, that some things deserve respect. Conservatives, the argument concludes, should be the first to agree, because we also hold that law should reinforce virtue and that a culture without reverence decays.

That is a serious argument, and part of it is correct. Reverence matters. A culture that sneers at everything sacred is poorer for it, and I will say so plainly. But the argument fails at the step from "reverence is good" to "the state should enforce it." Consider four problems.

One, it cannot pick a winner without picking a religion. The statute must define the thing protected. In a pluralist country the sacred of one citizen is the idol of another. The moment the state defines it, the state has taken a side in a theological dispute, which is precisely what the Establishment Clause forbids, and what Madison's Remonstrance held no civil authority is competent to do.

Two, it hands a veto to the angriest person in the room. If violence is the answer to an insult, then a law that bans insults rewards violence. Every blasphemy accusation that ends in a mob, as in the Pakistani cases above, teaches the next mob that the method works. The right answer to a threatened riot is to punish the rioter. The First Amendment's doctrine of the heckler's veto, a subject I take up in The Heckler's Veto on Campus and What the First Amendment Says About It, rests on exactly this logic.

Three, it destroys the reverence it claims to protect. Faith by compulsion is a hollow shell. Madison's point was that religion is what a person owes the Creator, and what is owed under threat is not owed at all. A church that must be protected by the police is a church that has lost the argument. The believers in this country have thrived, historically, precisely because no one could force them to attend or to stop.

Four, it is turned on believers. Today's blasphemy statute shields the majority. Tomorrow's majority is different. Christians have been prosecuted under blasphemy rules in countries where they are the minority, as the Pakistani cases above show, and nothing in the logic of such laws prevents a future American majority from doing the same to evangelicals, Catholics, Orthodox Jews or Muslims. A principle you want for your own faith must be a principle you grant to all.

A fifth objection is practical. Real harm is already covered. Threats, true harassment, vandalism of a house of worship, and incitement to imminent lawless action are crimes, and the Supreme Court's decision in Brandenburg v. Ohio (1969) allows punishing speech that is directed to inciting imminent lawless action and likely to produce it. Nothing in the American position leaves a congregation defenseless against a mob. It leaves the state without a power to rule on a doctrine.

The world moved toward the American position

For more than a decade, beginning in 1999, the Organization of the Islamic Conference, later renamed the Organization of Islamic Cooperation, pushed annual United Nations resolutions against what it called "defamation of religions." Free-speech groups objected that such resolutions risked protecting ideas instead of people.

In March 2011 the pattern broke. The UN Human Rights Council adopted Resolution 16/18, by consensus, on combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons based on religion or belief. Notice the grammar. It speaks of protecting persons, not protecting ideas. It condemns incitement and violence, which every free country already prohibits, and it drops the language of defamation of religions. That shift, from shielding beliefs to shielding believers, is the entire American argument in miniature, and it was agreed to by the same body that had been passing the other kind of resolution for years. A follow-on diplomatic effort, the Istanbul Process, which began with a ministerial meeting in Istanbul in July 2011, brought governments together to follow up on it. I describe it with caution: some states still enforce domestic blasphemy rules. But the international consensus language moved, and it moved toward us.

Why free speech protects believers

Put the pieces together and the conservative case emerges, and it is not a reluctant concession to secular taste. It is a position held on conservative premises.

The first premise is the Founding bargain, that conscience is owed to God and cannot be surrendered to Caesar. The second is humility about government: the state is bad at theology and very good at abusing whatever power you hand it. The third is the record, as I read it: I know of no evidence that harsh blasphemy laws have made faith livelier, and religious life in this country has thrived under the strongest protection for religious speech. The fourth is the practical safeguard I mentioned. The same First Amendment that lets a comedian mock a pastor lets a pastor preach against the comedian, lets a Muslim student wear a head covering, lets a Jewish merchant keep the Sabbath, and lets a street evangelist proclaim an unwelcome gospel.

Believers lose that protection exactly when they lobby for a rule that silences the other side. We should want a country in which a Christian can say the Quran is mistaken and a Muslim can say the Gospel is, in a tone of ordinary argument, and in which neither goes to prison. We should respond to mockery with better arguments, better art, and better lives. That is harder than a lawsuit, and it works better.

The case in brief

1. A blasphemy law punishes the content of an opinion about God, which is different from punishing threats, incitement or harassment, which the law already reaches.
2. Where such laws exist, as in Pakistan's 1980s provisions, they fall most heavily on religious minorities, including Muslim minorities such as the Ahmadis, and they feed mob violence.
3. The Founding, from Virginia's 1786 statute to the First Amendment, rests on the claim that coerced faith is no faith, and Burstyn v. Wilson (1952) applied that to a state's ban on "sacrilegious" film.
4. The best case for blasphemy laws, that reverence keeps the peace, fails because the state cannot define the sacred without choosing a religion, and because it rewards those who threaten violence.
5. The world's own drift, from "defamation of religions" resolutions to the 2011 consensus on protecting persons, points toward the American rule.

What you can do: read the Establishment and Free Exercise clauses on the Constitution page, then check the State Department's latest international religious freedom report, which Congress requires, to see how blasphemy laws are being used abroad today.