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March|April 2006
Money! Power! Ambition Gone Awry! By Robert W. Gordon
One Stop Law Shop By Richard A. Epstein
Vartkes's List By Michael Bobelian
Young Guns By Bernard E. Harcourt
Crusaders in Wingtips By Rachel Morris
Children of the Church By Bernice Yeung

Crusaders in Wingtips

As American courts give more weight to imported precedents, a band of Christian lawyers is going abroad to shape foreign law—before it comes home to hurt their cause.

By Rachel Morris

THE ISLAND OF OLAND, FOUR MILES OFF SWEDEN'S EASTERN COAST, is sprinkled with windmills, farming hamlets, wind-washed beaches, and the majestic ruins of stone castles. Only 11,000 people inhabit Borgholm, the island's largest town. One summer Sunday three years ago, in a Pentecostal church there, the Reverend Ake Green gave a sermon entitled, "Is Homosexuality Genetic, or an Evil Force that Plays Mind Games with People?"

Green, who is a tall 63-year-old with a grave air, declared that homosexuals, like people afficted with other "sexual abnormalities" like bestiality, were a "deep cancerous tumor in the entire society." To support this view, he quoted from the books of Genesis, Hebrews, Romans, and Leviticus. His congregation, around 50 parishioners, sat attentively in the wooden pews. He had invited the local media, but when no reporters showed up, he sent a copy of his sermon to the Olandsbladet, the island's newspaper. It got him attention—just not the kind he expected.

In January 2004, Green was prosecuted under a recent addition to Sweden's criminal code that bans expressions of "contempt" aimed at a person's sexual orientation. The law, which was designed to forbid discrimination against racial, ethnic, and religious minorities after World War II, was expanded in 2003 to include sexual orientation as a protected area. In a secular nation that takes pride in its tolerance, Green's viewpoint was roundly condemned: The archbishop of Sweden's Lutherans, the country's largest religious denomination, condemned the pastor's sermon as "miserable theology." After a one-day trial, Green was the first person convicted under the new law and sentenced to jail for 30 days.

Green contested his conviction, arguing that the law shouldn't apply to biblical teachings. By the time his appeal reached a court in the mainland city of Jonkoping, his story had erupted into a worldwide controversy. So many people wanted to attend the appellate hearing that they spilled out of the courtroom, and the proceedings were broadcast over a live video feed to a building across the street. In February 2005, the court overturned the conviction, agreeing that Green had the right to preach a biblical view of homosexuality, even if many Swedes found his interpretations offensive. The prosecutor appealed, convinced that Green deserved a harsher sentence.

When Sweden's Supreme Court heard Green's case, a line formed before dawn outside Stockholm's Royal Palace, where the court sits. TV crews from across Europe jostled for space with several hundred of Green's Christian supporters and with gay and lesbian activists, one of whom held up a sign that read "I am not a cancer."

In the courtroom's second row of seats, behind a glass panel that divided the hearing's participants from the spectators, sat Benjamin Bull, an American lawyer. A Swedish lawyer was beside him, translating the proceedings. Bull is the chief counsel of the Alliance Defense Fund, an American Christian legal organization. The ADF had filed an amicus brief on Green's behalf, joined by powerful American evangelical groups like Focus on the Family.

Bull believed that Green's arrest violated the pastor's rights to free speech and freedom of religion, but that wasn't why he had traveled to Stockholm for the hearing. Like many of his fellow evangelicals in the United States, Bull was concerned that the obscure pastor's case could have what Bull termed "catastrophic" consequences on his side of the Atlantic. If Green was jailed for homophobia, how might supporters of hate speech laws in America use his example to advance their own agenda? "The U.S. Supreme Court is more than capable of citing not only the European Court of Human Rights, but the Swedish Supreme Court," Bull said. "If there's a dangerous foreign law precedent that will influence U.S. courts within the next five years, we want to impact the outcome."

IN 2003, JUSTICE ANTHONY KENNEDY wrote the majority opinion overturning an antisodomy law in Lawrence v. Texas. Extending the right to privacy to same-sex partners, Kennedy referred to the decriminalization of sodomy by a British act of Parliament in 1967 and by the European Court of Human Rights in 1981 to support his assertion that Western views on the subject had shifted. Two years later, in Roper v. Simmons, Kennedy considered both foreign and international law in determining that execution of juveniles was a form of "cruel and unusual" punishment. Although the references weren't presented as binding authorities in either case, they ignited a heated political argument over the role of foreign law in interpretations of the U.S. Constitution.

This argument was captured—in cordial form—during a rare debate between Justices Antonin Scalia and Stephen Breyer at the American University in Washington, D.C., last January. Arguing for a cosmopolitan judiciary, Breyer characterized the law as a "conversation," in which courts benefit from gathering as much advice from others as it can, including the highest tribunals and law-making bodies of other countries. For much of the 20th century, however, the conversation between American courts and those of other nations has been markedly one-sided. After World War II, many countries revised or adopted constitutions to prevent the return of despotism, often borrowing legal norms from the U.S. Bill of Rights and looking to U.S. Supreme Court jurisprudence for guidance. The collapse of the Soviet Union produced another wave of constitutional courts, many created with help from American legal experts.

As these courts developed their own distinctive jurisprudence, American scholars and judges started to take notice. In 1989, then-Chief Justice William Rehnquist remarked that "it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process." At the debate in Washington, however, Scalia voiced a traditionally conservative opposition to this trend, warning that judges could use foreign law to promote personal views that aren't supported by the Constitution. "I have a citation by an intelligent man in Zimbabwe - or - or anywhere else, and you put it in there. . . . By God, it looks lawyerly!" he said, to the audience's amusement. "And it lends itself to manipulation. It just does."

It didn't escape the notice of evangelical Christians that judges had looked to foreign courts in two cases that struck at the heart of their agenda: Lawrence, and five months later, Goodridge v. Department of Public Health, the historic Massachusetts Supreme Judicial Court decision that approved gay marriage. (Writing for the majority, Chief Justice Margaret Marshall mentioned approvingly a ruling by the Court of Appeal for Ontario, which found that the province's gay marriage ban violated Canada's Constitution.) To Bull, references to foreign law by American courts endanger "American sovereignty as we know it."

Christian conservatives like Richard Wilkins, a constitutional law professor at Brigham Young University, became troubled by developments in international law in the mid-1990s. Wilkins attended his first United Nations conference in 1996 and was alarmed to find participants discussing topics like women's rights and the role of the family. As he saw it, the U.N. had impermissibly expanded its focus to include social and cultural rights as well as political and economic ones. Wilkins fretted that "elastic phrases" in U.N. documents—like "access to reproductive health services"—would become weapons for American courts to use in supporting a right to abortion. (Motivated by similar fears, some conservative Christian groups have since appointed their own U.N. representatives to resist similar language.)

In the wake of Lawrence and Goodridge, the American Civil Liberties Union held a national conference in October 2003 to train lawyers in "using international law and human rights norms to advance justice in U.S. courts or on behalf of U.S. clients." Two months later, a set of candid internal memos from the pro-choice Center for Reproductive Rights was leaked to the pro-life Catholic Family and Human Rights Institute, which passed the documents along to conservative members of Congress. The memos explained the center's intention to establish a human right to abortion in international norms and treaties by working with U.N. agencies and NGOs. "There is a stealth quality to the work," the memo's anonymous author acknowledged. "We are achieving incremental recognition of values without a huge amount of scrutiny from the opposition."

In October 2004, the ADF held its own four-day conference. Lawyers and academics, including two Europeans, pored over the public pronouncements of U.S. Supreme Court justices who had expressed interest in the work of foreign courts. As Bull explained, "Growing out of that was an organizational decision to make that one of our highest priorities—to combat international precedent."

BY THE EARLY 1990s, some Christian conservatives had become anxious that while they enjoyed more political power than ever before, they had lost ground in the courts. Prominent evangelicals moved to remedy this perceived slippage by forming public interest law firms, including Pat Robertson's American Center for Law and Justice, and Liberty Counsel, affiliated with the Rev. Jerry Falwell. In 1994, a group of Christian leaders, including Bill Bright of Campus Crusade for Christ and James Dobson of Focus on the Family, formed the ADF as a counterweight to the ACLU. Like Robertson and Falwell's groups, the ADF litigates religious freedom, "pro-life," and "pro-family" cases, but it also provides funding and strategic guidance to an array of allied organizations. By 2003 (the last year for which figures are available), the ADF's annual revenue had swelled to $17 million from $400,000 a decade before .

In that period, the ADF's staff attorneys (there are now 31) and network of affiliated lawyers (now more than 850, who pledge pro bono hours to the "body of Christ") have won some landmark court victories. The organization represented the Boy Scouts of America in the group's successful quest to ban gay scoutmasters and persuaded the California Supreme Court to stop issuing marriage licenses to gay couples in San Francisco. Less successfully, it also financed efforts by Robert and Mary Schindler to prevent the removal of life support for their daughter, Terri Schiavo.

The group hopes to extend its mission by building its ranks to 100 litigation attorneys and 5,000 affiliated lawyers. It plans to focus its litigation efforts on defending the traditional concept of marriage and the right of Christian groups on college campuses to exclude whomever they want. The ADF's involvement in foreign cases, by contrast, is still in its infancy, with no dedicated resources or staff lawyers. "Where we're at in terms of international law is sort of where we were as an organization seven or eight years ago," Gary McCaleb, a senior counsel at ADF, said. "We're going to see a huge amount of growth."

Despite its ambitious goals, a self-effacing culture defines the ADF, whose nondescript office suites are surrounded by strip malls in Scottsdale, Ariz. Its genial employees, many of whom wear shirts, vests, and watches bearing the ADF logo, describe their mission as "servant leadership"; a painting of the first Congress in prayer hangs on their boardroom wall.

The 55-year-old Bull is similarly unassuming. The son of an Army colonel, he grew up in Columbia, S.C. After graduating from the University of South Carolina School of Law in 1975, he worked in Norfolk, Va., as a city prosecutor, developing what he called a "knack for obscenity cases." He then worked briefly at an anti-pornography organization in Scottsdale before moving to Tupelo, Miss., to become general counsel of the American Family Association, which promotes "traditional family values." He jumped at the chance to communicate on "a much larger canvas," envisioning himself as "sort of a legal missionary." But Bull and his wife wanted to return West: In their minds, the flat desert and unimpeded horizons of Arizona's Salt Valley inspired the sort of values that he believed should underpin his Christian legal work, particularly "the sense that you can build something from nothing." In 1993, the American Center for Law and Justice asked him to open a new western division in Scottsdale.

Bull spent seven years with the ACLJ, including a year in France setting up the ACLJ's European affiliate, the European Centre for Law and Justice. The ECLJ was established to advocate for European Christians in cases before the Court of Human Rights in Strasbourg, and now also lobbies European governments on legislation that touches on conservative Christian causes, like embryonic stem cell research. Bull developed a Rolodex of Christian lawyers across Europe that proved valuable when he returned to Scottsdale in 2000 to work as the ADF's chief counsel.

The ADF has approached its fledgling foreign law project in much the same way that it operates domestically. Its directors convene a conference call of experts every six weeks to identify cases that offer opportunities for shaping American law, and staff members now comb the Internet for foreign cases of similar magnitude. Bull also learns about cases from his contacts abroad. As with its American cases, the ADF relies on local affiliates in foreign countries, an approach that conserves resources and, as Bull put it, allows the group to be involved "without appearing to be interlopers from America."

In recent years, ADF has financed locally based lawyers to intervene in a number of foreign cases. It agreed to fund a challenge to the U.K.'s law allowing human cloning for research purposes, though the case never reached a courtroom. With ADF funding, lawyers from a new allied organization, the European Defense Fund, are advising German Christian parents who home school their children but fear they will be prosecuted for failing to send them to school, as Germany's laws require they do.

The ADF is also closely watching the emergence of hate speech and antidiscrimination laws in Canada. "If the Canadians will accept certain limitations on freedom, there's a certain currency of thought in the U.S. that it must be O.K. for us, too, because Canada's our first cousin," Bull noted. The organization hired a Canadian lawyer for Stephen Boissoin, a minister who railed in the newspaper of Red Deer, Alberta, against those who support the "homosexual machine that has been mercilessly gaining ground in our society since the 1960s." The Alberta Human Rights and Citizenship Commission initially dismissed a complaint against the minister brought by a university professor, but it has since agreed to hear the case.

In each of these cases, Bull explained, the goal is to ward off precedents that might someday be used against the ADF's causes in American courts. He acknowledged the uneasy irony in ADF's global strategy: By entering courtrooms abroad, wielding case law from the European Union or the United States, the ADF is engaging in the very technique the group would like to thwart here. But to Bull the importance of his domestic mission outweighs the contradiction: "We're forced to do it, because if we don't, we're going to lose according to the rules of a game we never created."

AFTER HIS STAFF UNEARTHED A NEWS ITEM about Green's prosecution, Bull's interest was piqued. Sweden's Supreme Court is respected by other European courts and by international tribunals, and the spectacle of a white-haired man of God being hauled to jail for preaching a sermon seemed certain to arouse public outrage. As Gary McCaleb put it, "Most folks from a Western democracy, whether they're leftist or rightist, say that's just plain wrong."

Five months after Green's conviction, in October 2004, the Religious Freedom Coalition, a policy organization on Capitol Hill, brought a Swedish lawmaker and the director of a Swedish pro-life organization to Washington, D.C. The coalition's chairman, William Murray, was concerned about language in an upcoming U.S. defense bill forbidding discrimination based on sexual orientation. He asked the Swedes to impress on Republican senators like Sam Brownback of Kansas and Rick Santorum of Pennsylvania that American Christians would, like Green, face prosecution if the United States introduced legislation similar to Sweden's hate crimes law.

In April 2005, Bull traveled to Geneva to speak at a panel to "educate and influence" members of the U.N. Commission on Human Rights about the implications of Green's case. Later, with the aid of a translator, Bull met with Green at a hotel in Geneva. "He asked me about our legal ministry, and I got to know the heart of the man," Bull said of their conversation, which lasted several hours. "I was certain from the moment that I met him that we had to be involved."

The ADF translated the appeals court opinion and circulated it to other American nonprofit groups with an interest in religious issues, and it also promoted Green's story to the Christian media. Bull asked Paul Diamond, an ADF-allied attorney and British barrister who specializes in religious liberty law, to prepare a memo on relevant case law from the European Court of Human Rights for Green's state-appointed lawyer. The ADF also helped coordinate additional amicus briefs by Advocates Europe and the Becket Fund, legal organizations that work on religious freedom issues.

The ADF's own brief, which was joined by four other Christian organizations, argued that Green's conviction was illegal under the free speech and freedom of religion provisions of the European Convention of Human Rights (which applies to Sweden because of its membership in the European Union) as well as the International Covenant on Civil and Political Rights. The brief argued that the pastor had expressed a religious view that was the kind of "universal and inalienable right" protected by those conventions.

In the weeks before the Supreme Court hearing, discussion of the case intensified on both sides of the Atlantic. "Crosstalk," a Christian call-in show broadcast nationwide in the United States, devoted two hour-long broadcasts to Green. "The problem I do have is with our U.S. Supreme Court just sticking in world court rulings," one caller complained. Urging listeners to protest Green's prosecution, the announcer read out telephone numbers for Swedish diplomatic, business, and tourism offices in the United States: The Swedish embassy said it fielded hundreds of calls about Green over the following two weeks.

Green's one-day hearing began with a tape recording of his sermon. Unlike the U.S. Supreme Court, where lawyers argue about the legal issues before the justices, the Swedish Supreme Court allows parties to revisit the facts. The prosecutor questioned Green about the biblical texts he had quoted, and the passages of his sermon in which Green explicitly linked homosexuality to pedophilia and the spread of AIDS, arguing that Green had presented his own views, not those of the Bible. None of the five judges asked any questions, although one commented on the amicus briefs, which were novel to his court. When Green left the courtroom that night, he was greeted by hundreds of supporters who sang, waved banners, and held up candles.

In November 2005, the court handed down its decision. Green's conviction would likely stand under Swedish law, the judges wrote, but, echoing the ADF's brief, they anticipated that the conviction would probably violate the free speech provisions of the European Convention on Human Rights. The Supreme Court upheld the decision of the appeals court and dismissed the charge. Bull issued a jubilant press release: "As David slew Goliath, Ake Green slew the homosexual agenda." With the foreign threat to its cause felled, at least for now, the ADF's first stone had landed.

Rachel Morris is an assistant editor of Legal Affairs.

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