Out with the old and in with the new.
On Friday, reports emerged that the Scottish Parliament had introduced a bill decriminalizing blasphemy. No one has been prosecuted under the blasphemy law in question for 175 years, but still, the law “no longer reflects the kind of society in which we live,” the government said.
Fair enough, you might think. But look closer: The new bill does not simply repeal the dormant blasphemy law, as reports suggest. Instead, it replaces the law with a new one, designed for actual use in the 21st century. Reflecting “the kind of society in which we live,” the new bill is neither freer nor more liberal than the old one; it merely enshrines the policing of a different kind of speech.
The single sentence abolishing “the offence of blasphemy,” does not appear until part four of the Hate Crimes and Public Order (Scotland) Act. In part one, the drafters make the bill more palatable by creating enhanced penalties for existing crimes that are “aggravated by prejudice.” In explaining how this could be applied, Lord Bracadale, who conducted an independent review of the legislation, gave ministers two hypothetical scenarios:
A man who was annoyed at the noise his gay neighbor made putting out the bins in the early morning engaged in abusive shouting, in the course of which he made comments about the neighbor’s sexual orientation including hoping that “people like you die of AIDS. . . .”
A man shouts at a disabled person in a wheelchair on a street saying, “get out of my way you cripple” and proceeds to tip them out of their wheelchair . . .
In the examples Bracadale gives, the first man may have committed breach of peace and the second man has most certainly committed assault. But a judge would already be inclined to sentence those crimes more harshly if he thought them to be unprovoked or motivated by prejudice. Is it really in the statute book that moral judgments are to be arbitrated? Why is hurling abuse at someone because he is gay objectively worse than doing so because he is small or ugly? Why is tipping a man from his wheelchair because he is disabled objectively more egregious than tipping him from his wheelchair because he is poor or homeless?
Bracadale explains that the law is intended to ensure that crimes aggravated by prejudice against protected “identity” groups are “treated differently from ordinary crimes.” Presumably, if we accept this, then we will move more seamlessly from the “hate crimes” listed in part one of the bill to the prohibitions on “stirring up hatred” listed in part two.
Just as the 1837 blasphemy law prohibited “composing, printing or publishing any blasphemous or seditious libel,” the new bill outlaws “displaying, publishing or distributing” anything that “stirs up hatred,” as well possessing “inflammatory material” or performing a hateful play. The prosecution would not even need to prove “intent” on the part of the accused; it would only need to prove that from their actions, hatred would be “likely to be stirred up.” As for what constitutes “stirring up hatred,” unlike Bracadale, the law is short on specifics, leaving that judgment entirely to the subjective perception of a member of a victim group or some other third party. If a minority finds something to be “abusive, threatening, or insulting,” then it is, under the law. Two minor carve-outs are made for “freedom of expression,” which means it is permissible (within certain parameters) to criticize sexual behaviors, and “freedom of religion,” which means it is permissible to criticize religion. The fact that it was necessary to explicitly state that is okay to criticize religion in a law purporting to repeal the state’s prohibition of blasphemy is almost comical. Strikingly, there is no carve-out for criticizing transgenderism, which is currently the subject of fierce debate in Scotland.
“The Scottish Government is committed to taking this opportunity to shape hate crime legislation so that it is fit for 21st century Scotland and, most importantly, affords sufficient protection for those that need it,” the justice minister explained. Astonishingly, women are not deemed in need of such protection. This is particularly odd given that “sex” appears in the 2010 Equality Act, and that sexual harassment and equal pay are frequently the source of legal disputes between employers and employees. Though women have suffered historic abuse and exploitation on the basis of sex, the bill neglects them, prioritizing “transgender identity” (which operates by self-declaration) and intersex conditions (most of which are not even visible to other people).
The last person executed under Scotland’s blasphemy law was a 20-year-old student, Thomas Aitken, who had, according to his 1691 indictment, “repeatedly maintained, in conversation, that theology was a rhapsody of ill-invented nonsense . . . madness and contradictions.” Though he was tried by the Privy Council, his actual death sentence was recommended by the Church of Scotland, which urged a “vigorous execution” to curb the “abounding of impiety and profanity in this land.” Of course, “the kind of society” in which Aitken lived was broadly supportive of such punishments.
Under the newly proposed bill, a person convicted of “stirring up hatred” could face up to seven years’ imprisonment. The Scottish government maintains that it has a mandate for such measures, because in 2015 the Scottish Social Attitudes Survey found that 69 percent of Scots felt “Scotland should do everything it can to get rid of all kinds of prejudice.” The justice minister has said that “by creating robust laws for the justice system, parliament will send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated.” (Emphasis added.)
This is precisely the kind of moral orthodoxy that John Stuart Mill warned against in 1859. Minority views will always be threatened by some prevailing tyranny. Mill wrote On Liberty at a time in which the moral dogmas of the Church of Scotland were legally enforced. Today, Scotland is in thrall to a new religion, the Church of Equality, Diversity, and Inclusion, which is just as menacing and humorless, and to which the Scottish government kowtows just as readily.