The best security for a free people's character is religious liberty, and the logic of Masterpiece Cakeshop undermines this.
“This trial is not about freedom of religion,” the Finnish prosecutor asserted, “nor [about] what religion is today or what it was before.” He felt it necessary to state this on February 14, during the closing arguments of the trial of two Christian defendants accused of the crime of “agitation against an ethnic or national group.” Päivi Räsänen, a member of the Finnish parliament and former Minister of the Interior, and Juhana Pohjola, bishop of the free Evangelical Lutheran Mission Diocese had a different view of the case, and based their defense largely on religious freedom.
Why has the Finnish Prosecutor General brought criminal charges against two Christians for publicly arguing for a traditional view of Christian marriage? And what will the outcome of the so-called “Finnish Bible Case”—expected this week in the district court of Helsinki—tell us about the future of religious freedom in the Nordic countries?
Nordic and European Religious Freedom
The Nordic countries—Denmark, Finland, Iceland, Norway, and Sweden—share many constitutional similarities: they all have written constitutions at the top of the legal hierarchy, and while they lack constitutional courts, they empower all courts with judicial review. They generally have a restrained legal culture with judges expected to be applicators of law, not legislators. That said, legislative history carries much weight in legal interpretation. The American principle of separation of powers is largely absent: in particular, a government bill often contains instructions to the courts as to how they should apply or interpret the law.
An ongoing debate in Nordic jurisprudence has concerned whether individual rights can derive from treaties. In keeping with a strong tradition of legal positivism, this question is often answered in the negative. The Nordic countries’ relations to the European Union (Denmark, Finland, and Sweden as member states; Iceland and Norway as non-members but with free trade relations) and as members of the European Convention on Human Rights (ECHR) has complicated this discussion. Through these instruments, in some parts motivated by natural law, international law has reached Nordic national courts.
While freedom of religion in the Nordic countries is specifically protected by national legislation and the written constitutions, freedom of religion is also a function of freedom of expression, freedom of assembly, and parental rights. Nevertheless, in all Nordic countries, the freedom of religion may be restricted by law. Private religious expressions, generally speaking, receive stronger protection than expressions that might come into conflict with the freedom of others. National constitutional law generally demands a democratically acceptable reason for restricting religious freedom. Here, some influence of natural law on national legislation may be noticed, as the demand for a “democratically acceptable” reason is not just merely formal. Simply having a majority in the legislature is not sufficient. The legislation must also meet some substantive standards, such as being non-discriminatory.
But the Nordic countries are also parties to the ECHR, which regulates freedom of religion and freedom of expression. Thus, there is an overlapping European regulation, over which the European Court of Human Rights (Strasbourg Court) has jurisdiction and the ability to bind the member states erga omnes. During the 1990s, all Nordic countries incorporated into law the authority of ECHR, setting aside the objection of legal positivism that individual rights could not be based on ECHR. In the past, some judges and courts had been unwilling to accept fully the reasonings of the Strasbourg Court, which are sometimes grounded in a European natural law tradition not formally accepted in Nordic jurisprudence. But that is not common anymore.
Despite the supremacy of ECHR, religious expressions are not homogeneously protected in Europe. The Strasbourg Court permits states to implement the treaty with some variance in deference to national culture, commonly framed as the doctrine of “margin of appreciation.” Moreover, the burden on the plaintiff to litigate against the state in order to bring the law before the courts for judicial review limits the effective implementation of the treaty.
A much-debated restriction on freedom of expression (including religious expressions) is the prevalence of laws regarding agitation against an ethnic or national group. Historically, this is grounded in the post-war laws forbidding neo-nazi propaganda and state commitments in the 1966 UN convention on racial discrimination. This convention has been amended to cover a wide variety of other groups, such as religious or sexual minorities. The nature of the restriction in the Nordic countries is a prohibition against threat, defamation, or insult on the basis of group attributes. Still, hateful racial messages seem to be the most common grounds for prosecutions.
As the Strasbourg Court has the last word concerning the limits of freedom of expression, national legislatures and courts are subordinated to its rulings. In a much-cited statement, the court says:
Freedom of expression constitutes one of the essential foundations of [a democratic] society [and] is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. (Handyside v. the UK, 1976).
Nevertheless, ECHR still permits restrictions on expressions when they are “prescribed by law and […] necessary in a democratic society.” In ECHR case law, the sphere where restrictions are legitimate has often been labeled “hate speech.”
The Strasbourg Court has defined hate speech as “all forms of expression which spread, incite, promote or justify hatred based on intolerance ” (Erbakan v. Turkey, 2006). But even by this standard, the definition is narrow, for example taking into account whether the speech calls for violence, armed resistance, or rebellion (Feridun Yasar et al. v. Turkey, 2004). It has been pointed out that it belongs to freedom of religion not only to hold religious beliefs, but also to have the right to convince others of the beliefs (Kokkinakis v. Greece, 1993). Of great interest is whether or not the belief on which the statements are based is legitimate should be considered in the determination of the case (Manoussakis et al v. Greece, 1996). When national courts apply the laws concerning agitation against an ethnic or national group, they must interpret the law in accordance with this case law. For the prosecutor to win this case, therefore, he must show that the message expressed by Räsänen and Pohjola is hate speech.
The “Bible Case”
Turning to the Finnish Bible Case, the statement of the criminal act as charged consisted of three parts. The first, directed at both Räsänen and Pohjola, concerned a booklet entitled “Male and Female He Created Them,” written by Räsänen and distributed by The Luther Foundation Finland, where Pohjola, as president, also functioned as publisher. The prosecutor highlighted that homosexuality was described as a sin and that Räsänen (a medical doctor by profession) questioned whether homosexuality is part of normal sexual development. Räsänen had, among other things, written:
The inclination to homosexuality as such is not a characteristic comparable to mental health issues or physical ailments. Instead, the scientific material unequivocally proves that homosexuality is a disorder of psycho-sexual development. Those who claim that homosexuality is a natural “healthy” variety of sexuality nullify the evidentiary value found in family background studies for political reasons. Due to pressure from homosexual activists, political objectives have overridden scientific facts.
The subject of the booklet is hardly theologically novel: it presents marriage as a lifelong union between man and woman, then offers pastoral and societal advice on the matter. Nowhere is it said that a group is of less value in the eyes of God. On the contrary, it emphasizes that God’s love is eternal and that He wants to save all from sin. The booklet does clearly state that homosexuality is a sin, an important fact the Prosecutor General highlighted in labeling its content as hate speech. During the closing arguments, the prosecutor questioned the idea of “love the sinner, hate the sin,” i.e., the theological separation of person and deeds, calling it “antique” and based in “American fundamentalism.” This should be considered a focal point of the charges. The prosecutor must define religion in such a way that the charged expressions fall outside of its legal protection. But he also must presuppose a certain view of man, one that sees a critique of human actions as an attack on the person.
The second and the third statement of the charges, where only Räsänen was indicted, concerned her reaction to the national Finnish Lutheran Church’s decision to be an official partner to Helsinki Pride. In a statement on Twitter, Räsänen wrote that she was shocked by the decision, because the church’s confession demands that all doctrine be proven by God’s holy Word, and that Pride celebrated relations and acts deemed by the Bible to be sin. The tweet ended with a reference to the first chapter of Romans. The Prosecutor also wanted to make her liable for expounding this critique in a television show on the public broadcast channel Yle, also demanding that Yle remove the program from its streaming service. During the proceedings, Yle refused to comply with the demand, claiming that this would violate the freedom of expression.
Even though freedom of expression, legally speaking, is more narrow in Europe than in the US, it is still broad. One of the few restrictions in the Nordic countries is the prohibition on spreading hate against groups. And even though there is a debate whether even such limitations should be accepted because they represent a slippery slope, most prosecutions concern people really calling for hatred against persons. But what would happen if traditional Christian ethics, grounded in a theologically orthodox view of man having to deal with sin, were to be considered hate speech per se?
It is worth stressing that this is not a probable outcome. In Prosecutor General v. Åke Green (2005), the Supreme Court of Sweden adjudicated a case in which a pastor used rhetoric in a sermon more inflammatory than anything Räsänen has written: he had linked homosexuality with the origin and spread of AIDS, had spoken of homosexuality as “a deep cancerous growth,” and had characterized homosexuality as something sick. The Swedish Prosecutor General also had a good chance of winning the case—if the court had interpreted the law only in accordance with national legislation. In its unanimous ruling, specifically noting the ”cancerous growth” comment, the court stated that it was clearly not hate speech and that the case law of the Strasbourg Court demanded a more restrictive approach than Swedish legislation when limiting religious freedom. The Supreme Court dismissed the action.
The Finnish legislature has more clearly emphasized freedom of expression in its national law than has the Swedish. And Finnish courts, just as the Swedish ones, ought to conform and interpret their laws in accordance with the case law of the Strasbourg Court. Moreover, Yle was not alone in considering this a case of freedom of expression under that European case law. So did also the Finnish Police Authority, which initially refused to take up the case before the Prosecutor General’s office reconsidered the decision.
For Räsänen and Pohjola to be convicted, traditional Christian ethics—especially its view of what sin is and how it connects to concepts of person and identity—has to be regarded as hate speech, comparable to ideas that expressly advocate violence or the overthrow of society. To make that case, the prosecution presupposes a certain view of the human person, one that is at odds not only with Christianity, but also with the traditional liberal understanding of a separation between person and deeds. This seems to be in line with a modern, progressive view of man, which demands not mere acceptance, but a societal mandate to adhere to its idea of identity through an emotion-driven life—something that requires the punishment of dissenters.
All this contributes to an excessively narrow view of religion that does not permit it to have something to say about all areas of societal ethics. If religious expressions not agreeing with prevailing ideas ought to be punished, such punishments target traditional Christianity itself. Regardless of the outcome, the mere fact that Räsänen and Pohjola are being prosecuted attests to the spread of this modern view and shows how illiberal a society can be when built on the modern conception of self-identity.
This means of course, the prosecutor’s protestations notwithstanding, that the Finnish Bible case is very much about freedom of religion.