ABSTRACT

In the twenty-first century equivalent of the Hart-Devlin debate 'homophobia' is the new homosexuality and sexual orientation equality is the new shared morality. By a strange irony it is religious conservatives who are now out of step with the new morality and find themselves in need of the protection of liberal principles. This chapter discusses legal responses to an increasingly contested question: whether or in what way religious traditionalists have the right to express their belief that homosexual conduct is immoral. The Supreme Court of Sweden's judgment in Green is one model of how clashes of equality, non-discrimination, freedom of expression, and of religion can be approached—through proportionality analysis. This requires the state to justify restrictions on religious expression according to strict criteria even when acting to protect other individuals from discrimination. The clash between religious expression and 'homophobic hate speech' laws poses a genuine challenge for the system of human rights based on tolerance and pluralism.