Blasphemy on Trial
In June 1976, Gay News magazine published a poem that – as the subject of a high profile blasphemy trial a year later – was described as ‘the ultimate in profanity’. Whitehouse v Lemon, the trial in question, exposed Britain’s archaic and obscure blasphemy laws.
In early November 1976, Mary Whitehouse – an outspoken champion of conservative morality – awoke one morning to find a large envelope on her doormat. Opening it, she discovered the June 1976 copy of Gay News, the country’s only periodical for the homosexual community. Attached to the copy was a briefly scrawled note drawing her attention to a specific page, on which a poem entitled ‘The Love that Dares to Speak its Name’ by the respected poet and English professor James Kirkup was published. The poem detailed, in graphic language, the crucifixion of Christ seen through the eyes of a homosexual Roman centurion. He outlined his knowledge of Christ’s own promiscuous sexual adventures with his disciples, Pontius Pilate and even members of the Sanhedrin. But worse was to come; as she read further, the poem went on to describe the centurion engaging in sexual activity with the dead body of Christ. It was illustrated with a picture of the centurion cradling Christ’s body with the latter’s genitals ostentatiously portrayed.
Opinions differ as to the identity of the anonymous sender of the magazine, but whatever their agenda, the intention was to provoke Whitehouse. Their actions had the desired effect. In the years before she received the anonymous copy of Gay News, Whitehouse had become a thorn in the side of successive controllers of BBC television and radio, lambasting them for their perilous failure to control broadcasting standards. She had even been supported by the General Synod of the Church of England, which had coerced the Archbishop of Canterbury into writing to the two broadcasting outlets deploring how television soap operas, comedies and dramas increasingly allowed swearing and profaning of the name of the Almighty. While the archbishop was stonewalled by the BBC and ITV, Mary Whitehouse had enjoyed success. She had intervened to persuade the Home Secretary to prevent a Danish filmmaker, Jens Jørgen Thorsen, from entering Britain. Thorsen was a controversial avant-garde figure who publicised that he was making a film loosely titled The Sex Life of Christ. Beside featuring scenes reflecting the film’s title, Thorsen also intended to portray Christ involved in a bank robbery, making his escape on a motor scooter. Thorsen had tried to get his film made in a number of European countries, now turning to Britain as a possible haven for his experimental work.
Now, in the winter of 1976, Whitehouse had a new adversary. Gay News had been founded in 1972 and brought together individuals from the two homosexual rights campaigning organisations of the era, the Gay Liberation Front and the Campaign for Homosexual Equality. It had been felt that the time was right for a media representation of homosexuality and issues surrounding it in the wake of the decriminalisation of homosexual acts in England in 1967.
Whitehouse considered what she had read in Gay News obscene, but it was also a direct attack upon Christianity, which still dominated the moral outlook and identity of the majority of Britons. It was, in other words, blasphemous: Whitehouse had previously accused broadcasters of this ‘crime’, notably targeting an episode of the BBC sitcom Til Death us Do Part which made light of the idea of the Virgin birth. Whitehouse discovered that the Common Law offence of blasphemous libel still existed and soon the British public was awaiting the spectacle of a blasphemy trial. In the summer of 1977 – just a few months before Never Mind the Bollocks, Here’s the Sex Pistols was released – this seemed an astonishingly anachronistic state of affairs, which made the trial all the more fascinating. To some it seemed to be the last stand of a conservative establishment that had failed to respond to attacks mounted by different parts of the counter culture over the previous decade. In the midst of this, the Church of England was accused of having allowed Christianity to be cheapened, by its willingness to embrace youth enthusiasm for the popular musicals Jesus Christ Superstar and Godspell (1970). In response, new cultural forces mobilised behind Gay News and a fighting fund was set up to raise money for its defence.
Once Whitehouse secured permission for a private prosecution in December 1976, lawyers set about investigating the law surrounding blasphemous libel. What the blasphemy law actually meant – and precisely what it protected – seemed opaquely lost in the mists of time. It emerged that the law had been declared a ‘dead letter’ by the then Master of the Rolls Lord Denning in 1949. This had seemed a fair opinion in the late 1940s: the last time it had been used had been against a persistent quasi-anarchist John William Gott who had been imprisoned in 1921. Like the poem in Gay News, Gott had poured scorn on the figure of Christ, likening his entry into Jerusalem on the back of a donkey as reminiscent of the act of a circus clown. Gott had served a harsh prison sentence and it had broken his health, resulting in his early death just after his release in 1922.
The defence of Gay News, and its editor Denis Lemon, did its best to employ the leading countercultural advocates of the day. The barrister John Mortimer (author of the Rumpole of the Bailey books) was an obvious choice to lead the defence: Mortimer had triumphed in the Oz trial of 1971 which arose after a satirical magazine had produced an issue edited by schoolchildren with obvious and banal obscenities. His compatriot at the bar was Geoffrey Robertson, a barrister who would later gain fame as the ‘go to’ lawyer for any worthy liberal cause.
The defence set out to argue that the poem was metaphoric literature. They intended to argue that literature was capable of being read in a range of ways and was not simply a text with plain and unmistakeably obscene and blasphemous intent. To do, they lined up literary critics, writers and even theologians to speak on behalf of Gay News and the merits of the poem. Britain was a free and tolerant society that had long permitted the literary exploration of the divine, which could be both metaphoric and symbolic. The success of the defence would rely upon its ability to convince the jury that Whitehouse and her supporters were ‘behind the times’.
But as soon as Whitehouse v Lemon was underway, on 4 July 1977, the defence team found themselves repeatedly wrong-footed by circumstance and procedural decisions. The first surprise was sprung by judge Justice King-Hamilton, who departed from the practice of allowing both prosecution and defence to address the jury at the outset of the case. The prosecution was heard without respite and its allegations were uninterrupted as its counsel John Smyth told the court: ‘It may be said that this is a love poem. It is not, it is a poem about buggery.’
Justice King-Hamilton also moved to rule out the admissibility of discursive theological evidence about the precise nature of Christ’s humanity or divinity. King-Hamilton’s grounds were that the entire jury had sworn on the New Testament and could be expected to be familiar with the central tenets of the Christian faith. Geoffrey Robertson later pointed out that genuine academic evidence from theologians would render the blasphemy accusation potentially ambiguous or even ill founded, since different views on Christ’s divinity existed as well as ever liberalising views on what constituted Christianity. No expert theological evidence soon became no expert literary evidence: King-Hamilton made a conscious stand against the use of expert evidence rendering it inadmissible, thus hoping to encourage the jury to focus solely on the strong visceral reaction invoked by reading the poem. Once this became the focus of the case, the intention or motive of the poet, or of Gay News in publishing it, became irrelevant.
Vexed by these setbacks, Mortimer and Robertson were desperate to find ways of combatting the vitriol and invective piled on Gay News, Lemon and Kirkup. Their only viable option was to use character evidence to combat the negative profile established by the prosecution. In searching for individuals who would be willing to argue for the responsible nature and character of Gay News, the defence team called upon Margaret Drabble and Bernard Levin. Drabble was an author who had been used successfully in the Oz trial, while Levin was a forthright journalist and literary critic. Both were considered seasoned and experienced and, it was hoped, well capable of delivering a riposte to the damage inflicted by the prosecution.
One test came when Bernard Levin declared in characteristically abrupt manner that he emphatically believed Gay News to be a responsible paper. This was countered by the prosecution, which outlined the paper’s graphic advice on sexual techniques for homosexuals. Despite frequent denials, it soon appeared as though homosexuality itself was on trial. King-Hamilton tried to press Margaret Drabble upon whether Gay News was a suitable paper to be read by her adolescent sons. She noted, in reply, that her 16-year-old son had read it and this statement, by a defence witness, was used by the prosecution to highlight the impressionable nooks and crannies that the poem might dangerously reach into.
In the final speeches the prosecuting counsel John Smythe again emphasised the obvious vileness of the poem. Smythe stressed that the whole of 1970s morality was on trial with his assertion that it was a test case of ‘whether anything is to remain sacred’. Robertson’s riposte was to explain a possible interpretation of the poem line by line. This, however, proved counterproductive since in the heat of the moment he decided it would help his case to hurriedly gloss over some lines deemed too explicit or dangerous to the defence. These omissions were seized on by the judge who indicated that the missing lines were ‘the ultimate in profanity’.
Summing up the case, King-Hamilton waived away all suggestions that blasphemy might be a ‘dead letter’, noting that a law’s antiquity did not stop it from being valuable and relevant. With a sweep of the hand, King-Hamilton also directed the jury that the motives behind the poem were, in terms of the law, strictly irrelevant. This rendered ineffective all of Robertson’s literary investigation of the poem – what Kirkup had meant counted for nothing in the face of the offence he had caused.
The jury retired and in the intervening hours Whitehouse and her supporters prayed, publically, for a verdict in their favour. The jury eventually returned to deliver a majority verdict of guilty, something applauded by King-Hamilton. Robertson and Mortimer were left to draw some comfort from the fact that two of the jurors were not persuaded by the onslaught of the prosecution arguments. In passing sentence, King-Hamilton gave Lemon a nine month suspended prison sentence and fined him £500, a decision he later admitted regretting in his autobiography. Gay News was fined £1,000. In March 1978, the Court of Appeal quashed Lemon’s prison sentence, before the remaining convictions were finally put before the Law Lords in February 1979 where they were upheld by a majority of 3 to 2.
Whitehouse v Lemon altered the law dramatically. King-Hamilton’s denial of motive took English law back to its situation before 1883, by indicating that the fact of publication was enough to convict. Since then, English law had considered the ‘manner’ in which something was said or written alongside its intention – something that would have provided Gay News, Robertson and Mortimer with a legitimate and credible defence.
The immediate outcome of the Gay News case had seismic effects on wider society. Gay counterculture felt threatened and a number of events were cancelled. In more militant mood, the Tom Robinson Band recorded the song ‘Glad to be Gay’, which noted the hypocrisy of the tabloid press displaying topless women while vilifying the gay community and mentioned Gay News explicitly with the lyric:
There’s no nudes in Gay News, our one magazine
But they still found excuses to call it obscene.
The verdict heralded a period of retrenchment in which the morality of some publications and the circulation of pornography was severely restricted by police actions and raids.
Certainly, the outcome of the trial was a surprise. Those involved in the case were aware of the mistakes they had made but also acknowledged that they had underestimated Whitehouse. Cast as a puritanical busybody, the defence and the wider free speech lobby had failed to consider the intelligence and sincerity which she brought to the prosecution case. Her display of simple earnest morality and desire to protect the country from sophisticated and urban permissiveness struck a chord with many, and may have conceivably been one of the most successful post-war appeals to the spirit of what we would now call populism.
Mary Whitehouse may have won the battle but answering the question about whether she won, or even lost, the subsequent war is a more intriguing question. Her fears of British culture being ‘cosmopolitonised’ resonated. Arguments arose over whether high-minded, moral British culture was being tarnished by its exposure to the European Union. Many argued that the EU governed by the standards of the least moral nations that all others (including Britain) were being dragged down to emulate. The general mood informed the actions of moral watchdogs and the British government, who prepared themselves to confiscate and prevent pornography coming across the English Channel in veritable ‘waves’.
During the next three decades further blasphemy prosecutions were avoided either by luck or sensible judgement, but the debate about religious equality before the law has rumbled on. In 2003, a House of Lords select committee found the issue so complex that they failed to recommend any specific course of action to the Blair government. The blasphemy law was abolished with the passing of the Criminal Justice and Immigration Act in 2008, but the issue did arise once more earlier this year in May 2017 when it emerged that Stephen Fry and the Irish broadcaster RTE were under investigation for the crime in Ireland. Fry had responded to a question on what he would say to God by stating: ‘Why should I respect a mean-minded, stupid god who creates a world so full of injustice and pain?’ Ripples from the affair prompted New Zealand and Denmark to repeal their still existing blasphemy laws, with many in shock that they were still in place.
The gay community was the most obvious loser in Mary Whitehouse’s prosecution of Gay News but it has arguably fared much better in the 40 years since the verdict. Entrepreneurs now pursue the ‘pink pound’. The age of consent for Gay sexual activity has moved closer in line with that for heterosexual couples and full citizenship rights around marriage civil partnership and adoption rights are equally on the verge of full harmonisation. Ironically, the LGBT community is now protected by anti-hatred laws that might be seen as heir to the repealed blasphemy laws. These were fought for by organisations such as Stonewall, which stood up to a range of provocations such as the Gay News case.
It is worth noting, however, that the gay community does not have one united outlook. Those who advocate the ‘pride’ approach, and seek to become full citizens beyond discrimination, might feel awkward about the Gay News case and the obscenity of the poem it sought to defend. There are others who, in seeking to reclaim anti-conformist transgressive ‘queer’ events from our past, would embrace the alternative readings of conventional culture the poem and the case highlighted. The fact that gay culture has produced divergent viewpoints is itself testimony to its newfound confidence – and to how much in society has changed since the Gay News case erupted 40 years ago.
David Nash is Professor in History at Oxford Brookes University.