An Australian QC has appeared in court to argue that vilifying a religion should be considered per se unlawful under the state of Victoria’s paradoxically named Racial and Religious Tolerance Act. “[Brind] Woinarski was appearing for the Islamic Council of Victoria in the appeal by Christian group Catch the Fire Ministries and pastors Danny Nalliah and Daniel Scot against a finding under Victoria’s religious hatred law that they vilified Muslims in 2002. The Racial and Religious Tolerance Act defines vilification as inciting hatred, serious contempt, revulsion or severe ridicule against a person or class of persons.” (Barney Zwartz, “Religion in the dock in Muslim vilification appeal”, Melbourne Age, Aug. 22; “Questions over ruling on Muslims”, Aug. 23). See Dec. 19 and Dec. 3, 2004, etc.
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Justice Nettle: “Are you saying it’s impossible to incite hatred against a religion without also inciting hatred against people who hold it?” Mr Woinarski: “Yes.”
I don’t completely reject this logic (while reassuring all and sundry that the law in question is absurd as applied), but beyond the obvious free speech issue, it raises perpelexing questions of group versus individual rights. Which Muslims, exactly? Do they all believe the same thing? Couldn’t it be argued that it’s “racist” to assume this (not that I am against generalizations myself)? An element of American due process (say, via the 6th Amendment) is that you’ve got to know who your accusers are. Crimes and torts are committed against real people, and where classes are allowed, they’ve got to meet fairly rigorous standards of factual commonality. Here, it seems to be assumed by a self-appointed religious/ethnic representative group. American law often tracks this in other legal contexts, for example, redistricting cases under the Voting Rights Act where it’s assumed that Hispanics must all want to be represented in Congress by a Hispanic. And it’s a winning argument.
But then the question arises, do ALL groups get similar protection? Now that Hispanics are a majority in several states, are white Americans entitled to districts in which they’re guaranteed a white representative? And down under, are Christians entitled not to be vilified? And so on. Clearly, nobody’s thinking that one through. The presumed motivator here is that Muslims are newcomers, minorities, etc. and thus deserve special protections. But given the West’s purely voluntary decision to allow unfettered immigration into their countries, will that prove a durable principle? And do the tolerant and open-minded members of the current majority in Western nations wonder whether (given the example set by Islamic republics, for instance) the favor would ever be returned?