It is hard to imagine a less hateful person than Alexander Aan. Mild and soft-spoken, the 30-year-old Indonesian bureaucrat recently told Al Jazeera, in an interview conducted just outside his jail cell, “As a democracy and part of the global community, because we are not isolated from the outside world, I think we should be more tolerant. Nobody hurts anyone simply because he has different ideas.” And yet Aan is facing up to 11 years in prison for blasphemy and inciting religious hatred because he voiced his skepticism about Islam on Facebook.

In the West, the paradigms of blasphemy are fair-haired Danish cartoonists drawing the Prophet and Richard Dawkins badmouthing Yahweh. The public debate is about how to balance freedom of speech with respect for religious belief. But Alexander Aan’s case, playing out in the world’s most populous Muslim country, represents a much different global reality. Here the value at stake is not just freedom of speech, but freedom of conscience. The real contest is not between atheists and believers, but between those who affirm the equality of all persons of conscience and those who deny it.

Aan was arrested in a small town in West Sumatra on January 18 after a number of local residents assaulted him at work in an act of self-styled vigilantism. They were reacting to some of his postings on a Facebook page devoted to atheism: a note entitled “the Prophet Muhammad was attracted to his own daughter-in-law”; a comic suggesting the Prophet slept with his wife’s maid; and a status update reading, “If you believe in god, then please show him to me.”

Prosecutors have charged Aan under the Electronic Information and Transaction Law, which prohibits inciting hatred or enmity of a religious group, and under the country’s blasphemy provision, Article 156a, which criminalizes “hostility, hatred or contempt” and “disgracing” of a religion. Article 156a also prohibits attempts to persuade others to leave their religion and embrace atheism.

Aan’s small, pro bono legal team is not optimistic. The Indonesian legal system is designed for unequal treatment of unbelievers. The constitution officially recognizes the religions of Islam, Protestantism, Catholicism, Buddhism, Hinduism, and Confucianism, and stipulates that every citizen must believe in a supreme being.

Desecrating Secularism

As the Indonesian activist Karl Karnadi points out, the persecution of Alexander Aan comes in the context of broader trends of “increasing religious intolerance in Indonesia which has victimized minority Ahmadiyya Muslims, Shia, Christians, Buddhists.” Indonesia’s Minister of Religious Affairs has recently called Shia Islam a “heresy” and publicly backed provincial bans on the Ahmadiyya, who consider themselves Muslims but differ from mainstream Islam on the finality of the Prophet.

Viewed in this context, atheists’ conversations on the internet should be seen as one end of a continuum of manifestations of conscience, exercises of the capacity to grapple with ultimate questions of meaning, value, and morality. From a moral perspective, there is an important symmetry between the attitude of the believer who reserves special reverence for a deity, saint, or prophet, and the attitude of the secularist who asserts that every person is equally holy. Neither of these beliefs is uniquely deserving of being labeled a spiritual commitment, relegating the other to mere “speech” against that commitment. Alexander Aan has no less moral ground to claim that monotheism insults his sense of what is and what is not sacred. In my book The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights (Continuum, 2012), I call this “The Symmetry Thesis.”

A government that singles out some citizens’ conceptions of the sacred for official protection is guilty of a gross failure of equal treatment. This principle of equality is supported by recent developments in international human rights law. Last summer the United Nations Human Rights Committee commented that laws restricting blasphemy are inherently discriminatory because they give to traditional believers a legal protection that is not available to the religiously heterodox or secular.

The same inequality can be found in the criminalization of “hatred” and “enmity” toward a religion. The problem is not confined to Indonesia but can be found in most of the hate speech statutes throughout secular democratic Europe. Article 226b of the Danish Penal Code, for instance, singles out for protection—among other categories—groups of people who “on account of their faith” are threatened, insulted, or degraded. It does not single out people, regardless of their affiliation, on account of their convictions of conscience.

Know Thy Enmity

The most principled motivation for hate speech laws can be found in the principle of equal respect for citizens. And yet, in the final analysis the principle of equality undermines their legitimacy. What is morally objectionable about hate speech is its attack on the standing of a group of citizens, a denial or denigration of their entitlement to equal concern and respect. Laws against group insult or group defamation, as Jeremy Waldron maintains, are intended to protect vulnerable minorities by exhibiting the state’s commitment to their equal dignity and equal standing in the face of bigots. Surely we all have a duty to work towards a society in which all citizens enjoy equal standing. The difficult question is what the state legitimately may do to promote this end.

If the state is to intervene on behalf of the reputation and standing of “Muslims,” or any other faith community, it must first decide on whose behalf it is intervening. It must lend its official approval to some idea of what counts as a “real” or “authentic” member of such groups. Were Aan’s expressions hateful or abusive toward Muslims? That depends on whether we assume that a Muslim is by definition one who believes in the moral perfection of the Prophet. Without this assumption, talk of Muhammad’s sexual indiscretions cannot be construed as inherently insulting to “Muslims.”

As the American constitutional scholar Robert Post has argued, the identities of such communities are not scientific facts but social categories that are open to moral contestation and re-negotiation. It would not do to take a poll of all of the self-identified members of the group to determine what they believe. For some will believe it, and others will not.

The question now becomes, which of the various understandings of the identity is most genuine, authentic, or warranted. And that question is not subject to a statistical proof. It is a normative question. Typically it is the most vulnerable or marginalized within the community who have the most urgent stake in contesting and re-negotiating the meaning of the identity. In a just society, such questions are not to be decided by the state but are to be left to individuals to work out in the public and cultural space.

Clashes over blasphemy and so-called religious hatred are not about free speech versus belief, or atheism versus faith. They are about equal treatment for all persons of conscience. As with attempts to stop blasphemy, a state that attempts to use the force of law to stop defamation or insult of religious groups must select certain identities for protection to the exclusion of other identities. The very same value that underlies the protection of the traditionally religious believer—equal respect for freedom of conscience—also underlies the protection of the secularist and atheist alongside the heterodox, dissident believer. As goes Alexander Aan, so go we all.