Religious Groups and the Gay Rights Movement: Recognizing Common Ground

I. INTRODUCTION Some within the gay rights movement are similar to Will Roper, who, exasperated with the law's inability to deal with "bad men," declared that he would "cut down every law in England" to get after the Devil.1 In response, Thomas More exclaimed, "And when the last law was down, and the Devil turned round on you-where would you hide. . . the laws all being flat?"2 This Comment considers tensions between the gay rights movement and religious speech condemning homosexuality and draws two conclusions: First, it is possible for the gay rights movement to advance their goals through the legal suppression of religious speech opposing homosexuality. second, such a strategy would injure religious groups and gay rights activists by eroding fundamental freedoms of conscience that both groups rely upon. In 2003, a trial court in Sweden convicted Reverend Ake Green3 of hate speech.4 During a sermon, Green characterized gay relationships as "sexual abnormalities" that were a "cancerous tumor [on] society."5 He warned that because of the tolerance of gays and lesbians in Sweden, the country risked divinely caused disasters.6 Furthermore, he asserted that AIDS "came into existence" because of homosexuality.7 During the trial, prosecutors characterized Green's comments as the equivalent of racist Nazi propaganda.8 Public prosecutor Kjell Yngvesson reportedly explained the conviction as follows: "One may have whatever religion one wishes, but [the sermon] is an attack on all fronts against homosexuals. Collecting Bible [verses] on this topic as he does makes this hate speech."9 Ake Green's story highlights the vulnerability of the right of free speech,10 a vulnerability that many agree must not be exploited. Justice Jackson placed free speech at the center of Americans' fundamental rights when he proclaimed: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.11 Jackson's "fixed star" of free speech is what is typically classified as a liberty-"that sphere of activity within which the law is content to leave me alone."12 When advocates of any group seek equality for specific groups by denying basic free speech liberties, dangers arise that often go unseen until the loss of liberty at the hands of equality is irreversible.13 Describing the need to recognize the danger in this shift, Alexis de Tocqueville stated: [N]one but attentive and clear-sighted men perceive the perils with which equality threatens us, and they commonly avoid pointing them out. They know that the calamities they apprehend are remote and flatter themselves that they will only fall upon future generations, for which the present generation takes but little thought .... The evils that extreme equality may produce are slowly disclosed; they creep gradually into the social frame; they are seen only at intervals; and at the moment at which they become most violent, habit already causes them to be no longer felt.14 While recognizing that equality is certainly a bedrock value of fundamental importance,15 this Comment also demonstrates that unwary emphasis on equality can have a deleterious effect on liberty-another essential value of American society.16 As one article pointed out, "we cannot forget that an equal right to non-freedom is a nugatory right."17 Equality is not, of course, inherently bad, but when equality chips away at liberty, everyone is left with equal but diminished liberty. Kurt Vonnegut began his short story Harrison Bergeron with this characterization of a nugatory right: "The year was 2081, and everybody was finally equal. They weren't only equal before God and the law. They were equal every which way. …