A heckler’s veto of religious liberty

Religious liberty is the first freedom protected by the First Amendment in the Bill of Rights, which says something about the priority assigned to it by James Madison and the other framers of our Constitution. The constitution of Finland does not address religious liberty until Section 11, where it promises: “Everyone has the freedom of religion and conscience. Freedom of religion and conscience entails the right to profess and practice a religion, the right to express one’s convictions and the right to be a member of or decline to be a member of a religious community.”

You’d think that constitutional guarantee would have been good enough for Finnish parliamentarian Päivi Räsänen, a faithful Christian who authored a pamphlet and several social media posts setting forth an orthodox biblical view of sexuality and was charged with a hate crime as a result.

Last week, the Supreme Court of Finland ruled on a 3-to-2 vote that the prosecution of Räsänen was justified under Finland’s statute on “war crimes and crimes against humanity,” which makes it a crime to “makes available to the public or otherwise disseminates or keeps available to the public information, opinion or other message that threatens, slanders or insults a group on the basis of race, skin colour, descent, national or ethnic origin, religion or belief, sexual orientation or disability.”

Räsänen was charged with “incitement against a national group when making available to the public and keeping available to the public an article [she] had written, which contained statements allegedly defaming homosexuals” (quoting from the introduction to the court opinion). The charge stated that Räsänen “insulted homosexuals as a group on the basis of their sexual orientation” in a series of public statements over the last decade, one of which did little more than quote Romans 1, thus disseminating information or opinion that insults a group on the basis of sexual orientation.

The prosecutor explained that her writings were “insulting to homosexuals,” “violated the equality and human dignity of homosexuals and were capable of causing intolerance, contempt and even hatred towards homosexuals.” Importantly, the prosecutor charged that the “statements [were] derogatory towards homosexuals were discriminatory and thus exceeded the limits of freedom of speech and religion.”

The Supreme Court found that the statute serves important constitutional values in the Finnish charter, such as nondiscrimination and equality: “The penal provision concerning incitement against a national group protects the inviolability of human dignity.” The Court interpreted the statute to criminalize a statement “if it denies or belittles the human dignity of people belonging to the group or otherwise expresses approval of intolerance or discrimination against people belonging to the group.”

The Supreme Court decided it needed to balance certain constitutional values, such as nondiscrimination and human dignity, against other constitutional values, such as free speech and religious liberty: “This is a case-by-case assessment, in which the inviolability of human dignity and equality of people belonging to the group protected by the provision must be weighed against the freedom of expression and religion of the person making the message concerning the group. This assessment must take into account how offensive and serious the statements are and how necessary the interference with freedom of expression and religion must be considered for this reason.”

Looking to its own and European law, the Court further concluded that “[h]ate speech that may offend individuals or groups of individuals has not been considered to deserve the protection of freedom of expression.” The Court continued, “Since tolerance and respect for the equal dignity of all persons are the foundations of a democratic and pluralistic society, there may be sufficient grounds for restricting freedom of expression where the aim is to prevent all forms of expression which spread, encourage, promote or justify hatred based on intolerance.”

In this case, the Court concluded that some of Räsänen’s statements were unjustifiably insulting. The Court remonstrated that though religious liberty is important, so are people’s feelings, and said she should have used a different tone or method of argument: it is “possible to defend the religious concept of marriage and family in a way that avoids offending sexual minorities.”

This case now heads to the European Court of Human Rights, a treaty-based court in which Finland participates. Much of the Finnish court’s opinion is based on the ECHR’s prior rulings on speech and religious liberty, so the “balancing” framework and the limited protections for religious liberty will likely be the same.

Ultimately, all of this should make American evangelicals grateful for our nation’s strong heritage of religious liberty and free speech, which does not make our rights dependent on the listener’s feelings. There is no “heckler’s veto” under our First Amendment, which is essentially how the prosecutor used the Finnish statute. But we should continue to support Alliance Defending Freedom and other advocates for the persecuted church abroad. I just never thought this kind of persecution would happen in a first world NATO ally like Finland.