Blasphemy is not what it used to be in Europe, because Europe is changing its religion. Last week, two cases showed that while Europeans may be acquiring one freedom that Americans take for granted, they are losing another.
On October 25, the European Court of Human Rights (ECHR) affirmed a 2011 Austrian court decision, which convicted a woman identified as “E.S.” of “disparagement of religious precepts” and gave her a choice between paying a 480 euro fine or 60 days in jail. The precepts she had disparaged were not those of Catholicism, the religion to which the vast majority of Austrians nominally adhere, but of Islam.
The next day, 64.85 percent of referendum voters endorsed the Irish government’s plan to remove the blasphemy clause from Ireland’s constitution. According to the Irish Times, four in five voters under the age of 35 were in favor. The over-65s, less enthusiastic about disparaging religious precepts, still voted 52 percent in favor.
The Irish, once among Europe’s most fervent Catholics, now have gay marriage, legal abortion, and the right to insult the church. The standing and influence of the church, along with mass attendance and Catholic education, are declining sharply. Like most Europeans, the Irish have floated, in Roger Scruton’s phrase, “downstream from Christianity.” Their laws are now catching up.
Only in 2009 did Ireland clarify its murky medieval inheritances on blasphemy into a modern statutory definition. As late as 2017, Irish police investigated the British comedian Stephen Fry under the new statute for calling God “capricious,” “mean-minded,” and an “utter maniac” on television. They dropped the case not because Fry hadn’t broken Irish law, but because not enough people had complained.
The Irish, interestingly, are joining only a minority of Europeans when it comes to the right to deride a deity in whom fewer and fewer of them believe. For in many other European states, historic blasphemy laws remain on the books. The French annulled blasphemy laws in 1791, and the English and Welsh in 2008, but the Germans still have blasphemy laws, and so do the Scots and the Northern Irish. The erstwhile Protestants of Scandinavia can say what they like, but the Catholics in Europe’s southern and eastern states must watch their tongues.
Blasphemy laws were originally created to bolster a close alliance between the state and the Christian churches, often in formal concert with establishment clauses. Today, with Islamist activism on the rise in Europe, a revival of the classic type of blasphemy cases is once again rendering these laws a danger to free speech and intellectual inquiry—now with the blessing of the ECHR, the conscience of the Council of Europe.
E.S., the Austrian woman convicted of blasphemy, had run seminars on Islam for the hard-right Freedom party. At one seminar, she described the hadith that Muhammad married his third wife Aisha when she was 6 and consummated this child marriage when she was 9 and he was in his early 50s. “What do you call that?” E.S. asked. “What do we call it, if it is not pedophilia?”
The ECHR, in a ruling that should strike fear into parents across Europe, endorsed the Austrian court’s finding that there is a “distinction between child marriages and pedophilia.” E.S., the ECHR wrote, had “merely sought to defame [Muhammad], without providing evidence that his primary sexual interest in Aisha had been her not yet having reached puberty or that his other wives or concubines had been similarly young” and without mentioning that “the marriage with Aisha had continued until the Prophet’s death, when she had already turned eighteen and had therefore passed the age of puberty.”
The ECHR concluded that E.S.’s remarks were
E.S. was a nonspecialist running seminars for a party whose roots lie in postwar fascism and whose recent success owes much to anti-Muslim populism. Clearly, E.S. felt that Muhammad was not a worthy subject of worship.
That was E.S.’s opinion, just as it was Voltaire’s opinion that Christianity is an “infamy” that must be “erased” and just as it was Nietzsche’s opinion that Jesus is not a worthy subject of worship. Voltaire’s and Nietzsche’s source materials wouldn’t meet the “objective” criteria of the modern academy or court of law either. E.S., like Voltaire and Nietzsche, had formed an opinion about something that is said to have occurred in the past and was sharing it in a civil manner—a manner much more civil and informed than, say, that of the Monty Python excursion into the Jewish origins of Christianity, Life of Brian.
The objective facts that shaped the ECHR ruling have nothing to do with the early history of Islam or the doctrinal standing of a hadith. They have everything to do with an illiberal interaction between a legal hangover from the Middle Ages and the shifting religious demography of Europe. The latter is a “debate of public interest” in Europe, but it is a debate that Europe’s political class, and especially its supranational political class, would prefer that the public not enter.
In some western and northern European cities, more citizens now attend mosque on a Friday than church on a Sunday. In practice, in the demography of native births and immigration, and in activist confidence in the public square and courts, Islam is now the growing edge of European religion. So it should not surprise that Muslim activists are invoking semi-dormant European laws like Article 10 of the Austrian code, which intends to prevent disorder by “safeguarding religious peace and protecting religious feelings.”
But should it be the state’s task to protect “religious feelings” against contemporary opinion, especially when the feelings are held by a minority and the opinion seems reasonable, albeit ahistorical, to the majority? Are academic historians expected to refrain from publishing anything that might contradict Islamic doctrine? And who here is really threatening to break the religious peace if they don’t get their way?
Debates on free speech inevitably invoke a quotation from Voltaire: “I may not agree with what you say, but I will defend to the death your right to say it.” But Voltaire never said this. This line is a summary of his attitude from a 1906 book, The Friends of Voltaire. Europe’s traditions of free speech are neither as old nor secure as those of the United States. In many countries, they are legacies of 1945 and 1989. The survival of blasphemy laws means that they rest on narrower legal foundations.
After the ECHR ruling, the status of free speech in Europe on matters of religion is conditional upon which religion you are discussing and which state you are discussing it in. You are allowed to say that to contemporary sensibilities, the burning at the stake in 1328 of Adam Duff O’Toole for heresy and blasphemy was a disgusting barbarism of which any thinking Englishman should be ashamed. You can get away with saying that to contemporary sensibilities, some of the laws in Leviticus and Deuteronomy are vindictive, sexist, homophobic, and cruel to animals. You will, however, face the law if you apply your contemporary sensibilities to the history of Islam.
If blasphemy law is bad law, its revival will ensure worse, to an extent not seen in Europe in centuries. Europeans should annul their antique blasphemy laws to preempt abuse by a sectarian minority. The alternative, as evinced by Europe’s past and recent history with blasphemy laws, is the curtailment of expression, inquiry, and even physical liberty. But with the ever-present veto of Islamist violence in the air, and the Council of Europe’s purported defender of human rights deferring to Muslim sensitivities, who will dare to be a friend of Voltaire in Europe today?
