Religious vilification: confused policy, unsound principle and unfortunate law

University of Queensland Law Journal, Dec, 2007 by Rex Tauati Ahdar

I INTRODUCTION

It would be a very good thing and no doubt society would be better for it, if certain benighted people refrained from insulting or denigrating their fellow citizens because of those citizens' religious beliefs and conduct. Should we then pass a law to prohibit religious vilification?

In this article I argue that a firm 'no' should be the answer. I realise that in some quarters the subject has been thoroughly debated and the opposite answer given. So, the United Kingdom, (1) as well as three states in Australia, (2) have recently enacted laws banning incitement to religious hatred. The question, however, is still a live one for nations such as New Zealand and Canada, as well as the remaining states of Australia. Moreover, even in those jurisdictions saddled with such laws, it is not too late to reconsider and scrap the legislation.

The justifications for the introduction of religious vilification laws have never been persuasive. (3) Whilst I shall briefly traverse these, the best argument against religious vilification is, I believe, the Catch the Fire case. (4) This decision, the first major litigation (5) on the subject, bears out the concerns of many that religious vilification laws are conceptually unsound and produce results antithetical to the religious tolerance its promoters hope for.

II A POLICY MILIEU

Religious vilification laws endeavour to strike a balance between several policy aims and objectives. There is a broad desire to promote religious tolerance. This in turn commonly derives from a broader policy endorsing multiculturalism. The Preamble to the Racial and Religious Tolerance Act 2001 in Victoria explains the significance of cultural pluralism:

   The people of Victoria come from diverse ethnic and indigenous
   backgrounds and observe many different religious beliefs and
   practices. The majority of Victorians embrace the benefits provided
   by this cultural diversity and are proud that people of these
   diverse ethnic, indigenous and religious backgrounds live together
   harmoniously in Victoria.

A harmonious multicultural society cannot take religious tolerance for granted. (6) So, a policy to combat religious intolerance is required--the protection of people from denigration on the grounds of their religion. Again, this policy connects with multiculturalism--those vilified may feel alienated or marginalised and shrink back from contributing to society and thus 'the benefit that diversity brings to the community' (7) is lost.

Policies promoting religious tolerance and protecting citizens from vilification usually push in one direction insofar as they seek to impose limits on individual or group action. By contrast, policies to promote freedom of expression and freedom of religion typically push in the opposite direction by encouraging personal and collective action. The Preamble of the Victorian legislation duly 'recognises that freedom of expression is an essential component of a democratic society.' (8) One of the espoused objects of the Act is also 'to maintain the right of all Victorians to engage in robust discussion of any matter of public interest.' (9) In a similar vein, the policy of promoting religious freedom recognises that many major world religions seek to publicly proclaim the truth and merits of their faith and attract others to it. Such evangelism or proselytism is an integral part of exercising one's religious liberty. (10) In the Christian faith, it is not just a suggestion but a duty to 'witness' and to preach the Gospel to all nations. (11)

It is not clear, or at least it is not explicitly articulated, which of these policies takes precedence. Legislation such as Victoria's Racial and Religious Tolerance Act lists the policies but does not rank or prioritise them. The scheme of the Act will, of course, provide some guidance as to how Parliament views the relative significance of the policies. (12) If the threshold for violation is set sufficiently high, such that only the most 'extreme' (13) or egregious verbal or written attacks upon people (because of their faith) are caught, that is an indication of the deference paid to free speech and religious expression. Likewise, if there are defences for 'genuine' (14) religious criticism then this sheds some light as to the importance of those same policies. But this is but broad and inferential guidance. In particular cases it will be left to the tribunal to prioritise the policies when interpreting key words or phrases and deciding whether the particular conduct has exceeded the limits of liberal democratic tolerance.

III JUSTIFICATIONS FOR RELIGIOUS VILIFICATION LAWS

Clearly articulated arguments as to precisely why religious hatred laws are required are difficult to find. (15) There is, of course, a copious (and vigorously contested) literature on the harm from hate speech generally, especially the racial variety. (16) Mari Matsuda, for example, observes that 'tolerance of hate speech is not tolerance borne by the community at large. Rather, it is a psychic tax imposed on those least able to pay.' (17) As for long-term harms, Kent Greenawalt explains: