Blasphemy and the State
by Wendy McElroy
Originally published by the Future of Freedom Foundation

On April 16 in Richmond, Virginia, Jesus of Nazareth was spared the death penalty but sentenced to life imprisonment with no chance of parole for the crime of blasphemy.

Or, rather, a mock courtroom reenacted the sentencing phase of his original blasphemy case, which had resulted in a sentence of crucifixion. Since the mock Jesus had already been judged “guilty,” the jurors had only two choices: life imprisonment or death.

The theatrical trial was intended to spotlight and protest Virginia’s high rate of execution under capital punishment, which is second only to that of Texas. But other lessons are possible to draw as well. For example, what is the current legal status of blasphemy within the United States?

Blasphemy is defined as “a contemptuous or profane act, utterance, or writing concerning God or a sacred entity.” On a federal level, any attempt to punish religious expression, including criticism of religion or nonconformity to it, is very likely to fail due to constitutional protections. The First Amendment guarantees not only protection of free speech but also freedom of religion.

In principle, the Fourteenth Amendment extends those constitutional protections from the federal to the state level. Thus most of the blasphemy laws in America are “dead letter” laws, some of which date back to the 17th century. Attempts to revive blasphemy have occurred on the state level, however. For example, in 1977, Pennsylvania enacted a blasphemy law that was successfully challenged and overturned by a 2010 U.S. District Court ruling.

The crux of the case: George Kalman wished to incorporate his movie-production company I Choose Hell Productions in Pennsylvania. The Department of State rejected his application on the grounds that a business name “may not contain words that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name.” Ultimately, constitutional protections won out.

In another sense, however, blasphemy laws are thriving and pose a grave, growing danger to individual freedom. These are laws that forbid “a contemptuous or profane act, utterance, or writing concerning ... a sacred entity.” That sacred entity is the state. Today’s popular blasphemy laws are those prohibiting treasonous speech that calls into question the divine right to authority of the state and its agents.



Church versus State as a sacred entity

The 19th-century publisher Benjamin Tucker epitomized libertarianism in his time. Tucker’s first periodical, entitled The Radical Review, was primarily a free-thought one. That is, it advocated the complete separation of church and state, leaving all spiritual choices to the individual. Yet Tucker had no quarrel with religion as a personal, voluntary code of morality. He stated, “We intend no disrespect to God as an ideal that an individual may hold dear provided such God assumes no authority over others.... It is God the office-seeker and office-holder with whom we take issue.” In short, he opposed the sort of religion that sought to impose its authority through law and political office.

Indeed, when not backed by force of law, Tucker believed personal religion could be a benevolent factor. For example, if the principle of brotherly love were consistently applied, then it would result in a crime-free society based on cooperation. But to enforce brotherly love by law would be a contradiction in terms. To convert that principle into “a commandment is the utter denial ... a perversion of the word ‘love.’”

In his day, Tucker observed the legal clout of the church receding as a result of events such as the publication of Charles Darwin’s Origin of the Species. But Tucker thought the majority of people were merely transferring their blind obedience away from the church and toward the secular state. Tucker wrote passionately about “those who have lost their faith in gods only to put it in governments, those who have ceased to be church-worshipers only to become state-worshipers.” Such people had “indeed changed their battle ground, but none the less are foes of liberty still.”

Perhaps it was this insight that led Tucker to shift his focus away from that which had dominated the Radical Review when he established a subsequent periodical entitled Liberty; in Liberty, he addressed religion only tangentially and, instead, attacked the authority of the sacred state. He focused on what he considered to be the most destructive act of faith within society: an unquestioning reverence for and obedience to state authority.

An end-run around treason

The political equivalent to speaking blasphemy (offending God) would be speaking treason (offending the state). But treason is so narrowly defined by the Constitution that it is difficult to successfully prosecute those expressing anti-statist opinions, except in the turbulence of an officially declared war. Article III, Section 3, of the Constitution declares:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

This legal definition acts as a tight constraint on government prosecutions.

Thus, even during the undeclared Vietnam War, when dissent ran rampant in the streets, protesters were not charged with treason. Their objection to American policy may have given moral “aid and comfort” to the North Vietnamese but the protesters were not providing the enemy with information that harmed American soldiers; in dissenting, they did not commit treason. Indeed, one of the reasons current antiwar protesters so clearly enunciate support for “the troops” while excoriating U.S. foreign policy is because they are aware of the boundary between dissent and treason.

The U.S. government is currently in the depths of another undeclared war (or several); once again, the government wishes to stifle anti-statist voices ... but the charge of treason remains difficult to prosecute. For example, the campaign to prosecute Julian Assange as a traitor for Wikileaks’ spill of information was met with intense legal backlash — and not all of it because he is an Australian citizen.

The government’s solution is to make an end run around constitutional restraints by avoiding words like “treason” or “traitor” and using, instead, the words like “terrorist” or “security risk.” Under these labels, agents of the state are able to identify, to intimidate, or otherwise attempt to silence those who blaspheme against the sanctity of the American government, those who refuse to genuflect before the authority of its agents.

“Terrorist Suspect” as the new treason

There is a disturbing trend in how authorities profile terrorist suspects or security risks: namely, the list increasingly includes those who peacefully dissent, including libertarians.

Consider an April 2009 unclassified Department of Homeland Security (HSD) report that was publicly published http://michellemalkin.cachefly.net/michellemalkin.com/wp/wp-content/uploads/2009/04/hsa-rightwing-extremism-09-04-07.pdf and, then, amid controversy, verified; the document had been widely disseminated to law enforcement agencies. Entitled “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” it identified to enforcement the categories of people who posed a high risk to America’s security:

“Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.”

Consider the words with which Anne M. Tompkins, U.S. Attorney for the Western District of North Carolina, announced the March 18 federal conviction of libertarian Bernard von NotHaus for making, possessing, and selling his own coins, called Liberty Dollars:

“Attempts to undermine the legitimate currency of this country are simply a unique form of domestic terrorism.... While these forms of anti-government activities do not involve violence, they are every bit as insidious and represent a clear and present danger to the economic stability of this country,” she added. “We are determined to meet these threats through infiltration, disruption, and dismantling of organizations which seek to challenge the legitimacy of our democratic form of government.”

Consider TSA’s new 70 “behavioral indicators” of passengers who pose a high security risk. One indicator: the passenger is “very arrogant and expresses contempt against airport passenger procedures.” In other words, he objects to being treated like a criminal suspect rather than a paying customer, and he demands that his constitutional rights be respected. http://articles.cnn.com/2011-04-15/travel/tsa.screeners.complain_1_tsa-security-behavior-detection-officers-airport-security?_s=PM:TRAVEL

Whether you use the label of “traitors” or “terrorist suspects” to intimidate dissenters, whether it is for “treason” or for posing a “high risk” that you silence them, the goal of this government trend is the same. It seeks to punish and control those who blaspheme against the state in word or action.

Those involved in the mock trial of Jesus offered him a reduced sentence for speaking the truth. The trial’s sentencing was reported:

“Jesus please stand,” he [the judge] said.
He read the first question aloud and said, “The majority of the juries have found that should be answered in the affirmative.” It meant the juries thought Jesus would blaspheme again if not executed.
“Turning then to the next question,” he said. “The majority of the juries voting on that issue found that the death sentence is not warranted.” There was applause from the audience.
“The defendant is remanded to the jailer for the rest of your natural life.” And with that the trial ended.

Those who unrepentantly blaspheme against the state may not be so lucky.