Transcript TITLE OF PRESENTATION - Middlesex University

School of Law.
Hateful words of God.
Professor Peter W Edge,
Chair, Applied Study of Law and Religion
Group,
Faculty of Humanities and Social Sciences.
[email protected]
Contents.
The issue.
Kirk Session of Sandown (2011)
Three ways to approach scripture.
Conclusion.
The issue.
Many religions have textual sources they regard as
particularly authentic and authoritative.
– Position of text vs institutions vs individual varies.
– Antiquity of text varies.
– Interpretative approaches to text varies.
How should the law respond when the textual source quoted
appears to violate non-discrimination norms?
Obviously relevant to hate crime and hate speech, but also
relevant to legal restraint of offense.
The issue: Examples.
Religious discrimination.
– “Thou shalt not suffer a witch to live”, Exodus 22:18 (Christianity, Judaism).
Racial discrimination.
– “And it came to pass that I beheld, after they had dwindled in unbelief they
became a dark, and loathsome, and a filthy people, full of idleness and all
manner of abominations”, 1 Nephi 12:23 (LDS).
Disability discrimination.
– “Thus in consequence of a remnant of (the guilt of former) crimes, are born
idiots, dumb, blind, deaf, and deformed men, who are (all) despised by the
virtuous”, Manusmrti XI, 53 (Hinduism).
Sexual orientation discrimination.
– See discussion of Sandown Kirk.
The issue: examples.
Problems can be posed by non-textual scriptural images; and
scriptures created recently.
» Raelian Swastika: “The star of David
represents infinity in space whereas the
swastika represents infinity in time”
(rael.org, 1/9/11).
Kirk Session of Sandown Free
Presbyterian Church (2011).
Issues aired in Kirk Session of Sandown Free
Presbyterian Church [2011] NIQB 26, 22 March
2011.
Church placed an advert in the Belfast News Letter
entitled “The Word of God against Sodomy”.
Advert condemned homosexual acts, as part of
which it made use of Biblical quotations.
Homosexuality described as “a grave offence to every Bible
believer who, in accepting the pure message of God’s
precious word, express the mind of God by declaring it to
be an abomination (Leviticus, ch12 v22, ‘Thou shalt not lie
down with mankind as with womankind; it is an
abomination’)”.
Redeeming grace has power to change lives of “abusers of
themselves with mankind”, supported by 1st Corinthians,
ch6, vs9-11.
ASA received 7 complaints, which were upheld on the basis
that the advert was homophobic, implying homosexual
people were perverted and an abomination, and it was
likely to cause, and had caused, serious offence.
Kirk appealed to the independent reviewer.
Independent reviewer:
– Noted that advert was not “confined to quotations from
the Bible”; described the use of sources as “selective
quotations from the Bible” (noting particularly the
omission of the call for execution in Leviticus 20:13);
– “I think that it was reasonable for the Council to consider
that codes of conduct and sanctions laid down in biblical
works from several millennia ago cannot be
communicated verbatim and indiscriminately in twenty
first century advertising”.
Appeal against ASA.
Kirk argued for violation of Art 9 and Art 10, seen as identical
on this point so resolved as Art 10.
Expression clearly restricted, aim was legitimate one of
avoiding gratuitous offence (particularly as a seriously
offensive advert attacking a sexual orientation may
interfere with rights to dignity and private life).
Key issue was proportionality.
Judge noted that “essence” of applicant’s religious beliefs
were based on scripture.
“One effect of the impugned decision is to materially interfere
with and inhibit their use of certain biblical scripture” (para
71).
Found restriction was disproportionate, in part because the
advertisement “constituted a genuine attempt to stand up
for their religious beliefs and to encourage others to
similarly bear witness and did so by citing well known
portions of scripture which underpinned their religious faith
and their call to witness”. (para. 73)
So, how to approach
scripture?
Treat scriptural citation as outside of liability, beyond normal restriction.
– A very high level of deference to religiously underpinned views and
conduct as opposed to others.
– Does not give much weight to the harms addressed by hate
speech/hate crime/non-discrimination law (and may itself raise
ECHR issues – consider Milanovic v Serbia, 2010; 97 Members of
the Gidani Congregation v Georgia, 2008).
– Out of step with religious exemptions in other areas of UK and EU
law.
– “False flag” concerns? For instance EDL sacramentalising of
anti_Islamic policy (See Treadwell, 2011).
So, how to approach
scripture?
Treat scriptural citation as an exercise of historical judgment.
– Distinguishes between fair use of sources and
distortions.
– Fair use of sources given some protection?
– Entangles state with determining ‘true’ reading of
religious texts.
– A “second inquisition”? (Russ 1970, after Chapman,
1910).
So, how to approach
scripture?
Treat adoption of words, regardless of source and antiquity,
as a contemporary moment.
– Does not distinguish between sources based on
antiquity.
– Keeps focus on action and motivation of defendant.
– But does it give enough weight to religious liberty issues
concerning scriptures?
• Might ‘hateful’ speech be constructed as nonreligious speech?
Conclusions.
Inciting hatred/offending aggravated by hostility will
sometimes need to address the use of sacred texts.
Neither immunity for citing scriptures, nor ignoring that the
text is a scriptural citation, will do.
Position of use of scriptures in a religion will sometimes
engage Article 9 strongly, requiring restriction to be justified
more powerfully.
– Sandown Kirk may be a good example of the right
approach to take.
Conclusions.
Some questions …
– Does a religious motivation for citing religious scripture feed into
determining “demonstration of hostility”? (cp. Hostility vs “mere
vulgar abuse”, in for instance H(S) [2010] EWCA Crime 1931, CA).
– If we see citation of scripture as an example of religious practise,
are there analogous sexual orientation practises (coming within
Article 8), or gender or racial practices (coming within Article 14)
which may also be subject to a degree of special protection?
– If a defendant argues that they should be treated differently
because they are citing their group’s scripture, and fails, do they
then expose themselves to a heavier sentence because they were
a member of a group promoting hostility based on race, religion,
disability or sexual orientation?