There have been no successful prosecutions under Ireland’s revised blasphemy legislation since it was enacted. During this time, criticism of religion in Ireland has been vigorous. It may therefore appear that Friday’s referendum is something of a waste of time. However, the referendum does provide an opportunity to do something important: to provide clarity in an area that has been characterised by a nod-and-wink approach that may become increasingly unsustainable.

Even an unenforced blasphemy law may exercise what courts have called a “chilling effect” where people may think twice before speaking in case they then have to undergo the inconvenience and expense of taking legal advice or explaining themselves to the Garda.

More importantly, Ireland’s current approach is emblematic of broader arrangements across Europe where religion’s relationship to law and politics is treated in a subtle way where the legal situation often does not reflect reality.

A 2003 survey by academics John Madeley and Zsolt Enyedi showed that not a single European state met the standard of institutional separation of religion and state required by the US supreme court. Similarly, across Europe, many states have laws on the books that prohibit blasphemy or ridicule of religion. But the reality of the law on paper is very different from the actual social reality.

Fallen into disuse

In real life, religious influence over law and politics in Europe is much weaker than almost anywhere else in the world. Similarly, over time, blasphemy laws have fallen into disuse as previously dominant Christian churches lost power and came, often reluctantly, to accept the kind of criticism and mockery that they previously sought to repress.

So, Denmark and England for example, retain state churches but everyone is expected to know that in reality, politics and religion are in fact kept largely separate in both countries. In the same way, in Ireland blasphemy is a crime under the terms of the Constitution but the crime was not enforced or, since 2009, legislation provides such broad defences that a successful prosecution is unlikely.

The problem is that these kind of soft approaches become increasingly unsustainable when societies become more religiously diverse. In Ireland and across western Europe, religious diversity is increasing. Much of this increased diversity comes from migration from areas of the world where mockery of religion is not tolerated.

Having a system that depends on a kind of insider knowledge where everyone is expected to know that blasphemy a crime but is actually tolerated works less well when society is made up of people with very different views on what kind of criticism of religion is in fact acceptable.

It is important that the State makes clear to newcomers, many of whom come from places where criticism of religion is not acceptable, what they can expect

Britain and Denmark both had blasphemy laws on the books when the Salman Rushdie and Danish cartoons affairs blew up. This made it much harder to sell the argument that free speech on religion was a fundamental value of their societies. Accusations of hypocrisy could easily be made and many Muslims in both countries felt understandably aggrieved that the law criminalised blasphemy but not what they felt was a blasphemous attack on their religion.

Criticism and mockery

Both countries have since moved to align the legal situation on paper with the social reality that religion had, in fact, been expected to put up with criticism and mockery, no matter what the laws actually said. Indeed, these repeals of blasphemy laws have been a much wider phenomenon. Iceland, Malta, the Netherlands and Norway have all since repealed their blasphemy legislation in recent years and in 2013 EU member states unanimously agreed guidelines on religious freedom that called for the repeal of such laws.

As Europe becomes more religiously diverse, views around what constitutes acceptable criticism of religion will also become more diverse. Surveys have shown quite significant differences between religious groups on the issue of whether it is acceptable to mock religion. Ireland is a country where religion is subject to criticism and even mockery. Such criticism has been an important part of the process through which the unhealthy degree of dominance exercised by the Catholic Church was challenged and then reduced.

It is important that the State makes clear to newcomers, many of whom come from places where criticism of religion is not acceptable, what they can expect. Ireland’s current nod-and-wink approach of having blasphemy as a crime but making it largely unenforceable risks producing confusion and allegations of hypocrisy in the future. The referendum on blasphemy represents a chance to avoid such an outcome.

Ronan McCrea is professor of constitutional and European law at University College London