A recent Washington Post article reports that the US Senate is likely to pass another hate crimes bill this week. The bill was recently passed in the House after spending several months in deliberation. One of our first podcasts covered the legislation back in May, relying heavily on the commentary of Focus on the Family, which is cited by the Post among a handful of Christian activist organizations opposed to the bill.
One of the claims made by the panel of contributors in the Focus on the Family podcast we excerpted was that this bill would result in de facto criminalization of religious teachings against homosexuality. This would occur, it was claimed, by enabling criminal charges to be filed against anyone who could be argued to have motivated an attack on a homosexual. An April article from the Post summaried the debate thus:
Tony Perkins, president of the Family Research Council , predicts a "wave of federal prosecution." In a fund-raising e-mail sent to supporters …, he warned that offended gays could accuse a religious broadcaster, a pastor or a Sunday school teacher who expresses the viewpoint that homosexual behavior is morally wrong and unhealthy.
That’s "just a scare tactic to mobilize the grass roots," counters Becky Bansky, federal legislative director for the National Gay and Lesbian Task Force . "When they have to resort to lying, they’re telling you they have no legitimate argument against the legislation."
Not so, says Jason Lorence, senior attorney for the Alliance Defense Fund , a Christian legal firm. "I don’t think it’s preposterous to propose that in the future, hate crimes can be used against pastors."
The more recent Post article argues such concern is without merit:
Do they have a point? Not really. As we saw and heard during the last election cycle (think Jeremiah Wright and John Hagee), existing hate-crime laws for acts "committed on the basis of the victim’s race, color, religion or national origin" haven’t kept pastors or anyone else from expressing their biblical views. Why would that change when "sexual orientation" is added to the list?
This argument by author David Waters sidesteps two key points. Unlike race, color, or national origin, homosexuality is specifically and harshly condemned within theology, scripture, and religious teaching. So the likelihood of a "hate crime" against a homosexual being linked in some way to a sermon is far more likely than any other variety of "hate crime." More pressing than that, however, is the fact the entire concept of "hate crime" is a criminalization of thought, making this and existing hate crime laws unconstitutional. The freedoms of speech, religion, and press, preserved in the First Amendment, may rightly be considered together as the Freedom of Thought. Speech is the expression of thought. Motivation too is thought. To criminalize a motivation is therefore to criminalize thought. If it is legally acceptable to use a racial slur before assaulting someone, how does it become illegal afterward? We use motive in criminal prosecutions to help determine whether a crime was committed; it has up until the advent of hate crime laws never been a crime in and of itself. The reason is plain sense; motivation is thought; and we may not rightly criminalize thought.
Some may argue it is a crime to incite a riot or yell "fire" in a crowed theater, etc. There is a distinction, however, between inciting or conspiring to commit a crime and holding or expressing a view which motivates a crime. If you find a pastor who says, "Bash gays! Bash ’em good!" that is inciting violence. Stating that homosexuality is sin is not.
Waters seems to recognize the validity of that argument:
There might be valid legal or even constitutional arguments against laws that penalize people for committing crimes because of their discriminatory views. But shouldn’t people of faith oppose hate in all its forms, whether spoken or acted upon?
No, they shouldn’t. At least not if they are Christian or Jewish. A cursory search of scripture reveals the following declarations of hatred:
Select capable men from all the people—men who fear God, trustworthy men who hate dishonest gain —and appoint them as officials over thousands, hundreds, fifties and tens.
You must not worship the LORD your God in their way, because in worshiping their gods, they do all kinds of detestable things the LORD hates . They even burn their sons and daughters in the fire as sacrifices to their gods.
And do not erect a sacred stone, for these the LORD your God hates . Deuteronomy 16:21-22
You love righteousness and hate wickedness ; therefore God, your God, has set you above your companions by anointing you with the oil of joy.
Hate evil , love good; maintain justice in the courts…
"I hate divorce ," says the LORD God of Israel…
You have loved righteousness and hated wickedness ; therefore God, your God, has set you above your companions by anointing you with the oil of joy."
It seems pretty clear the Judeo-Christian tradition calls for judicious and appropriately directed hate. Of course this does not justify, in my view or through any application of mainstream Christian or Jewish theology, violence against homosexuals. The point is hate (like sex) is not an evil in and off itself. Its misapplication is.
That’s theology. Then there’s law. In the United States of America, ours starts with the Constitution and the Bill of Rights, which are pretty clear on the issue of speech. Still, Waters argues this new hate speech law makes exception for constitutional protected speech.
…the House version clearly states that "Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution."
…the Senate version includes two even more specific speech protections:
(3) CONSTITUTIONAL PROTECTIONS- Nothing in this Act shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.
(4) FREE EXPRESSION- Nothing in this Act shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.
While this is certainly heartening, it does not fully discredit concern that religious speech might be linked to a crime after the fact.
.,..the hate crimes bill clearly doesn’t allow prosecution to begin until an actual crime — a violent act — has been committed. In fact, the U.S. Supreme Court has ruled that bias or discrimination can only be considered when directly connected to a criminal act.
This is meant to quail fears, but actually validates them. If "bias or discrimination can be considered when directly connected to a criminal act," does that not place the previously protected speech into a prosecutable category? We don’t know. It all depends on how the law is interpreted. But we know how it should be interpreted. If speech is protected independent of violence, by what principle is it suddenly not protected after violence? By what principle may we constitutionally prosecute thought regardless of act?