Because of the current state of the law in Ireland, it is impossible to say what the offence of blasphemy actually is. This was the conclusion of the Supreme Court when it yesterday rejected an appeal brought by Mr John Corway against an earlier High Court judgment.
He had lost in the High Court in an attempt to persuade the court he should be allowed pursue a criminal prosecution against the Sunday Independent for blasphemous libel arising out of a cartoon it published.
The cartoon accompanied an article by Dr Conor Cruise O'Brien in the immediate aftermath of the divorce referendum which drew attention to acceptance of the divorce amendment despite the opposition of the Catholic bishops. The cartoon portrayed a portly priest in vestments bearing a chalice and host, and pursuing the caricatured figures of Mr John Bruton (then Taoiseach), Mr Ruairi Quinn and Mr Proinsias De Rossa, with a caption which read "Hello progress - bye-bye Father?"
Mr Corway, a carpenter from Harold's Cross in Dublin, sought leave to bring the criminal prosecution on the basis that the cartoon was an insult to the sacrament of the Eucharist.
The Supreme Court judgment states that the crime of blasphemy does exist as an offence in Irish law, pointing out that the Constitution says so in Article 40.6: "The publication or utterance of blasphemous . . . matter is an offence which shall be punishable in accordance with law."
However, it also points out that there is no definition of blasphemy in the Constitution, nor is there any Act of the Oireachtas defining blasphemy.
"In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists," it says.
In the course of the judgment the Supreme Court examines the evolution of the crime of blasphemy in common law, pointing out that the last prosecution for this crime in Ireland took place in 1855. The case involved bibleburning. This, and previous prosecutions, rested on the privileged position of the Church of Ireland in the state.
The Church of Ireland was disestablished in 1869, however, and there is no record of any prosecution for blasphemy between then and the Constitution of the Irish Free State adopted in 1922.
This was a totally secular Constitution, guaranteeing freedom of conscience and expression to those of all religions and none.
The Supreme Court points out that those freedoms were carried over into the 1937 Constitution, but it did add a new section which acknowledges "that the homage of public worship is due to Almighty God", and undertakes to respect and honour religion.
This leaves a situation where, according to the Supreme Court, "the State is not placed in the position of an arbiter of religious truth".
The court looked at the situation in England, where the law on blasphemy is based on the view that "the Christian religion is part of the law itself", and the Church of England is the established church.
In 1979 the campaigner against many alleged expressions of indecency in the media, Mrs Mary Whitehouse, won a blasphemy case in the House of Lords. The Law Lords found there was no need to prove a specific intention to blaspheme, only an intention to publish what was held to be blasphemous matter.
But such a case could not succeed in this State, according to the Supreme Court. "If the Church of England had been disestablished and if England had introduced a secular Constitution it is highly probable that the debate in the House of Lords in Whitehouse v. Lemon would have taken a very different course," it said.
"It is difficult to see how the common law of blasphemy, related as it was to an established church and an established religion, could survive in such a constitutional framework [as the Irish one]. From the wording of the preamble to the Constitution, it is clear that the Christian religion is one of the religions protected from insult by the constitutional crime of blasphemy. But the Jewish religion would also appear to be protected. . .
"What then is the position of the Muslim religion? Or of polytheistic religions such as Hinduism? Would the constitutional guarantees of equality before the law and of the free profession of religion be respected, if one citizen's religion enjoyed constitutional protection from insult but another's did not?"
The Supreme Court thinks not.
Referring specifically to the cartoon, it concluded that no jury would consider that an insult to the Blessed Sacrament existed or was intended.