Thirty-seventh Amendment of the Constitution

26 October 2018 (2018-10-26)
Repeal of offence of publication or utterance of blasphemous matter
Results
Choice Votes % Yes 951,650 64.85% No 515,808 35.15% Valid votes 1,467,458 98.51% Invalid or blank votes 22,236 1.49% Total votes 1,489,694 100.00% Registered voters/turnout 3,401,652 43.79%
Results by county

The Thirty-seventh Amendment of the Constitution is an amendment to the constitution of Ireland which removed the constitution's requirement to criminalise "publication or utterance of blasphemous matter". The amendment was effected by an act of the Oireachtas — the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Act 2018, which was introduced (as bill no. 87 of 2018) in Dáil Éireann, passed by the Dáil and Seanad, approved by the people in a referendum, before it was signed into law by the president.

The bill was introduced to the Oireachtas on 13 July 2018 by the Fine Gael minority coalition government. A referendum was held on 26 October, on the same date as the presidential election.^[1] A second referendum on whether to remove an article referring to women's place in the home, originally scheduled for the same date, was postponed, taking place on 8 March 2024.^[2]

The amendment was approved by nearly 65% of the voters, and by a majority in every Dáil constituency.^[3] It was signed into law by the president on 27 November 2018.^[4] It was followed by separate legislation in 2019 to remove the crime of blasphemy from the statute book.

Background

The publication or utterance of blasphemous matter is an offence specified by the Constitution of Ireland as an exception to general guarantee of the right of the citizens to express freely their convictions and opinions. In Corway v Independent Newspapers (1999), the Supreme Court held that the common law crime of blasphemous libel related to an established church and could not have survived the enactment of the Constitution. They also held that it was impossible to say what the offence of blasphemy consisted of.^[5]

The offence of publishing or uttering blasphemous matter was first defined in Irish law in the Defamation Act 2009. Someone is guilty of the offence if they publish or utter "matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion", and they intend, "by the publication or utterance of the matter concerned, to cause such outrage". There is a broad defence where "a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates".^[6] To date, there has not been a public prosecution for the offence of blasphemy in the Irish state.

The Constitutional Convention held a session in November 2013, where they proposed replacing the offence of blasphemy in the Constitution with a prohibition on the incitement of religious hatred.

The matter came to public attention, in May 2017, when it was announced that English comedian Stephen Fry, along with broadcaster RTÉ, were under criminal investigation for blasphemy under the Act, following a complaint from a member of the public about comments made by Fry in a 2015 broadcast interviewed with veteran Irish broadcaster Gay Byrne. The case was dropped after Gardaí confirmed that they had not been able to locate a sufficient number of offended people.^[7]

In June 2018, Minister for Justice and Equality Charles Flanagan announced that the government would hold a referendum to simply remove the reference to the offence of blasphemy from the Constitution.^[8]

Changes to the text

The Thirty-seventh Amendment amended the final sentence of paragraph i of subsection 1° of Article 40.6 by substituting "seditious" for "blasphemous, seditious,".^[9][10] The original text read:

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.^[10]

The text as amended reads:

The publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law.

Subsequent legislation

The Department of Justice and Equality's draft general scheme for subsequent legislation proposed that the Government introduce a formal Bill to repeal sections 36 and 37 of the Defamation Act 2009, which dealt with the 'Publication or utterance of blasphemous matter' and the 'Seizure of copies of blasphemous statements' respectively,^[11][12] as well as to replace the words "indecent, obscene, or blasphemous" by "indecent or obscene" in the Censorship of Films Act 1923 as amended by the Civil Law (Miscellaneous Provisions) Act 2008, and in the Censorship of Films (Amendment) Act 1925.^[12] The Blasphemy (Abolition of Offences and Related Matters) Act 2019, enacted on 17 January 2020, removed these offences from statute law.

Passage through the Oireachtas

The Bill was proposed by Minister Charlie Flanagan and passed all stage in the Dáil on 18 September and all stages of the Seanad on 20 September.^[13] Amendments by Solidarity to remove other religious references from the Constitution were ruled out of order.^[14][15] It was opposed in the Seanad by Rónán Mullen.^[16]

Campaign

A Referendum Commission to provide information to the public on the proposed amendment was established on 18 July 2018.^[17] Minister for Housing, Planning and Local Government Eoghan Murphy signed the electoral order for the referendum on 21 September, setting the polling date as 26 October.^[18][19]

By 17 October, there had been little public debate about the referendum, leading The Irish Times to suggest that this might cause most "Don't know" voters to end up voting "No" as had happened before in similar little-debated referendums, although it still expected the referendum to be carried based on the most recent opinion poll of 12 October.^[20]

For

Those who supported removing blasphemy from the constitution included:

• Fine Gael^[21]
• Fianna Fáil^[22]
• Sinn Féin^[23]
• Labour Party^[24]
• Green Party^[25]
• People Before Profit^[26]
• Social Democrats^[27]
• Irish Council for Civil Liberties^[28]
• Church of Ireland^[29]
• Atheist Ireland^[30]
• Justice Minister Charles Flanagan^[31]
• Senator Ivana Bacik^[32]
• Michael Nugent of Atheist Ireland^[32]

Not opposed

• Irish Catholic Bishops' Conference, who called the provision "obsolete" and said that similar laws have been used to justify violence and oppression against minorities in other parts of the world.^[33][34]

Against

Those who opposed removing blasphemy from the constitution included:

• Islamic Cultural Centre of Ireland^[35][36]
• Senator Rónán Mullen^[31]
• Séamas de Barra of Alliance for the Defence of Marriage and the Family^[32]
• Colum Kenny of DCU School of Communications^[32]

Opinion and exit polling

Voting

The referendum took place on 26 October 2018, on the same day as the presidential election. Polling stations were open from 7 am until 10 pm. Turnout was reported to be low in many areas of the country. By midday, turnout percentages from around the country were in the low teens, with many polling stations reporting single figure percentages. In Dublin some estimates suggested that turnout would be half that of the referendum on the Thirty-sixth Amendment of the Constitution of Ireland in May.^[40]

Thirty-seventh Amendment of the Constitution Bill 2018^[41]

Choice	Votes	%
Yes	951,650	64.85
No	515,808	35.15
Valid votes	1,467,458	98.51
Invalid or blank votes	22,236	1.49
Total votes	1,489,694	100.00
Registered voters/turnout	3,401,652	43.79