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Law at the Jesus Creed: David Opderbeck

posted by Scot McKnight

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David Opderbeck, one of our vigorous and steady commenters, is doing a series for us on law. This one is on hate crimes and thought crimes in the context of religious freedom. A most timely topic… And by the way, if you are in the New Orleans area, David will be presenting at this Christian law conference.

Law:  Hate Crimes, Thought Crimes, and Religious Freedom

On October 28, 2009, President Obama signed into law the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.  This legislation was vigorously opposed by the religious right and other political conservatives.  Here is how an article on the Concerned Women for America website portrayed the issue:

All totalitarian countries employ “thought crime” laws that criminalize the conscience. Now, under “hate crime” laws that include “sexual orientation,” even Western nations with long traditions of freedom, such as the United States, Canada, New Zealand, the United Kingdom and Sweden, are experiencing more and more challenges to basic freedoms. “Hate crime” laws are a key part of a long-term strategy by homosexual activists to use “sexual orientation”-based policies and laws to suppress dissent, radically redefine marriage and, ultimately, to criminalize Biblical morality.

The Family Research Council’s website played on a similar theme:

We oppose all Thought Crime laws in principle, because penalizing people specifically for their thoughts, beliefs, or attitudes–even ones abhorrent to us and to the vast majority of Americans, such as racism–would undermine the freedom of speech and thought at the heart of our democracy.

Are “hate crimes” laws a prelude to government “thought control?”  Should Christians oppose “hate crimes” laws that apply to crimes based on animus against homosexuals?


One of the things that irked me most about the recently
announced Manhattan Declaration
was its somewhat oblique reference to this question of “thought crimes.”  It appears here: 

Because we honor
justice and the common good, we will not comply with any edict that purports to
compel our institutions to participate in abortions, embryo-destructive
research, assisted suicide and euthanasia, or any other anti-life act; nor will
we bend to any rule purporting to force us to bless immoral sexual
partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality
and immorality and marriage and the family
.

(Emphasis added.) 
I agree with the notion that religious institutions should be free,
within limits, to operate according to their own moral principles.  I use the qualifier “within limits” here
because the “moral” principles of some religious groups are incompatible with
democratic civil society.  We would
not, for example, permit religious jihadist groups to operate unencumbered, nor
would we tolerate spousal or child abuse even if it is the norm within some
religious communities.  But surely
a religiously-affiliated health care entity should not be compelled to
participate in abortions, nor should churches that hold to traditional marriage
be forced to solemnize gay unions.

I also agree that religious institutions must remain free to
proclaim what they believe to be the truth about moral issues, including about
marriage and sexuality, even if some people find the message distasteful.  This is a basic freedom enshrined in
the first amendment.  

In my judgment, however, the alarmist rhetoric about
“thought crimes” is extremely misleading.  It is, of course, already illegal to commit a violent crime
against anyone, homosexual or not. 
The Shepard Act merely increased existing penalties for violent crimes
motivated by animus against homosexuals and other minority groups.  According to CWA and the FRC – and
apparently according to the Manhattan Declaration – increasing an existing
criminal penalty based on state of mind is a prelude to governmental “thought
control,” including, perhaps, the outlawing of Christian belief.

The truth is that it is not at all unusual or for the law to
impose different penalties depending on a person’s state of mind.  Indeed, the very foundations of Western
criminal law rest on determining internal states of mind:  actus
rea
, or the intent to act, and mens
rea
, literally having a “guilty mind.”  Generally, there is no criminal liability if only actus rea can be proven; the state must
also prove mens rea, a mental state that
renders the action criminal.

Murder, for example, as every first-year law student learns,
traditionally is defined as “the intentional killing a human being with ‘malice aforethought.'”  “Intent” and “malice
aforethought” are states of mind. 
It is not always a crime to intend to kill another person.  Police officers acting in the line of
duty or ordinary people acting in self defense typically lack the mens rea required for murder.  The fact that the government (through
the prosecutor’s office) must probe the killer’s state of mind in order to
prove its case doesn’t make the prohibition of murder some kind of black
helicopter “thought control” law. 

I could give hundreds of other examples in which state of
mind is relevant either to the elements of a crime or civil claim or to the
penalty or damages to be imposed. 
Indeed, it’s fair to say that both the criminal and civil law routinely address a party’s mental
state.  To suggest that hate crimes
legislation is unique in this regard is false.

What is truly unfortunate about the religious rights’
response to the Shepard Act, in my judgment, is that a sea of alarmism and
misrepresentation drowned out the legitimate concerns and witness of Christians
who hold to traditional Biblical teachings about marriage.  The only religious leader to testify
before the Senate
Judiciary Committee
  in favor
of the Shepard Act was Mark Achtemeier,
a Presbyterian minister who teaches theology at Dubuque Seminary.  Unfortunately, Achtemeier has become a
lightning rod in the PCUSA because he has migrated from a traditional Biblical
view of marriage to a revisionist view that would consider certain kinds of
same-sex unions Biblically appropriate. 
This is particularly troubling because Acthemeier could otherwise be
considered a moderate or “third way” evangelical (his book
on scripture
in my opinion is an excellent example of a “third way”
effort).  What if the primary
evangelical voice had been a truly moderate one, which affirmed traditional Biblical
sexuality but also supported the Shepard Act?

The Shepard Act controversy seems to highlight the divide
that has beset the Protestant churches since the fundamentalist-modernist
controversy.  The center never
seems to hold for very long. 
Reactionary dishonesty or revisionist pablum seem to be the only
alternatives.

What do you
think?  Is the conservative
rhetoric about “hate crimes” fair? 
How can Christians address concerns about censorship in connection with
the issue of “hate crimes?”  Can Christians
who hold to traditional Biblical sexual morality support “hate crimes” laws
that protect homosexuals?

 

 



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Rick

posted December 23, 2009 at 8:39 am


Good thoughts.
I think the reaction is due to more of a slippery-slope concern, especially in light of reports from other nations, or portions of nations (Canada?), that proclaiming disagreement with such a lifestyle is now a violation of law.
There is enough wording, or attempts at wording, of legislation that causes concern. From April 2009 and consideration of such a bill:
“In response, Judiciary Committee chairman John Conyers (D-Michigan), a co-sponsor of the measure, stated: “The bill only applies to bias-motivated violent crimes and does not impinge public speech or writing in any way…..
….However, during the Judiciary Committee markup yesterday, Congresswoman Sheila Jackson-Lee (D-Texas) reinforced the notion that people could be prosecuted for having a particular belief. “We also need to protect those potential victims who may be the recipients of hateful words or hateful acts, or even violent acts,” said the Democratic lawmaker….Congressman Louie Gohmert (R-Texas), a former judge, offered several amendments that would have provided religious-freedom protections from hate crimes prosecution, but they were all rejected by Democrats on the Judiciary Committee.”
http://www.standfirminfaith.com/?/sf/page/22109
It appears there is just enough of a window is left open (“hateful words”?) to scratch one’s head.



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Rick

posted December 23, 2009 at 8:53 am


sorry, should say “…there is just enough of a window left open…”



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Carl Holmes

posted December 23, 2009 at 8:55 am


As always, I learn a new word just about ever time you write David. I love it. When you used to write over at Every Square Inch and Brian Pillmore and I were editing your writing we would often scratch our heads and learn something new.
O.K., that is off topic. Sorry.



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dopderbeck

posted December 23, 2009 at 8:58 am


Rick — the Shepard Act contains the following provision:
“Nothing in this division 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 to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.”
I really don’t think there are any open windows here. Maybe that last sentence about incitement could be construed broadly in ways that could be troubling, but there’s already lots of well-established case law about incitement under the first amendment, so its unlikely in the extreme that the Shepard Act could be used to punish mere sermonizing.



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Diane

posted December 23, 2009 at 8:59 am


My experience as a religion reporter who spent a good deal of time covering the issue of gay marriage –it was being argued before the courts in my state–is that it is an extremely polarized issue in which essentially two groups of extremists shout past each other. The tenor of the debate was especially disturbing to me because much of the shouting was happening at college campuses, in forums crowded with usually apathetic students wanting guidance on an issue that they knew was primarily going to affect their as yet unmarried generation. Any moderation–any moderation at all–would have been helpful. Instead, our generation, left and right, managed to look like idiots.
I have long been concerned with the way groups like CWA and Focus on the Family distort issues, and I don’t know why they do this. I followed it with the abortion debate some years ago, and found that FoF was constantly implying–never, of course, stating–that current abortion laws allow a woman to freely and without opposition abort a 9-month fetus. Of course, this is a lie, and of course, FoF must have known that. Why not simply oppose the law as it stands? If you don’t believe in abortion, there’s plenty to oppose in what’s really there, without having to invent a dark shadow that makes it seem worse. Or, you wonder, do they really take seriously abortion in the first trimester? In any case, I look at these groups and their utterances with a great deal of worry as they seem prone to manipulate followers with half-truths.
On the other hand, I also keep in mind the case of a person I have never met but who is associated with my circle, Scott Savage, editor of the Plain Reader. I only have the story from his pov, and a lawsuit is pending, but he was apparently hounded from a job as a university librarian by suggesting, when part of a staff roundtable to choose group reading books for incoming freshman, that a right-wing book on Madison Avenue’s creation of gays be included. He suggested this in a moment of pique, annoyed that all the books others were recommending seemed to him far left (he is very conservative). This led to censure from the university and a hearing, e-mails from a gay professor who said he felt he very threatened and unsafe by Scott suggesting such a book, and ultimately, Scott having to get legal defense and very aggressively invoke the First Amendment and a countersuit, not to be fired. Eventually, however, the environment got so hostile, he resigned. This kind of counter-hate, that can ruin a person’s career for an offhand suggestion, does concern me. Scott, I believe, opposes homosexuality on religious grounds, and I do believe he should not be persecuted for his faith.
I have spent countless hours studying the Bible and talking to pastors and theologians about this issue, and I still have no clarity on what the Bible really says–or what God really says–about whether committed and sober gay couples should be allowed to wed. On the one hand, I love my gay friends and I love my gay Christian friends, I veer towards mercy over judgment, and I know I would be angry and frightened if my marriage were suddenly legally voided, and I were stripped of protections I take for granted, if I could lose my children, my home, my inheritance in a snap of two fingers. On the other hand, I think as a society we need to move slowly on these changes … we’ve seen all too clearly from rushing into no-fault divorce that dismissing or minimizing the damage from tinkering with traditional marriage is a grave mistake.
All of this is a long winded way of saying, yes, we need moderation and sanity and a middle ground in the gay debate to devise a solution that will really work for the good of all. So yes, I think Christians can support hate crimes laws about homosexuality–and indeed must–while working to insure these laws are not abused to destroy people in a McCarthyesque fashion.



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Rick

posted December 23, 2009 at 9:06 am


David-
I was not meaning to point to the Shepard Act specifically, rather the attempts by some representatives to include wording that leaves an open window.
I think the reaction of the right is in response to those attempts. There is concern that eventually those attempts at such wording will make it into law(s).



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Larry

posted December 23, 2009 at 9:08 am


It seems to me that the greater problem has to do with the crime itself. We are, in effect, valuing life (or property) based on intent of the criminal rather than the inherent value of life.
So a murder by someone who hates homosexual is deemed worse than a murder by someone who hates his wife’s lover, or hates not having a fix of cocaine so they kill to rob and get money for it.
But all of these people are equally dead, all with malice aforethought, and should be treated equally. Killing a person because they are homosexual is no worse than killing them for any other reason (and no better, to be clear).



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Steve S

posted December 23, 2009 at 9:23 am


I echo the need for moderate voices. Not necessarily moderate viewpoints, but definitely moderate tones!
I was a college sophomore on the UW campus when Matthew Shepard was murdered. I was there for the aftermath of protests, counter-protests, trials, and Hollywood movie stars…
The thing that was often missing in the public spotlight was moderate voices. I did not really have a great grasp of the issues at hand then, but even as I was, I had many opportunities to talk with the GLBT community about Jesus, and even about scriptural views on human sexuality, simply because I wasn’t shouting, and acknowledged the injustice done to their community.
If there had been a prominent Christian voice who had came to the forefront of that situation, they would have been embraced. Perhaps there were people doing so publicly, but all I saw in the public statements of Christians was the typical polarization: Christians who were bigots, or Christians who were affirming of homosexual acts.



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Steve S

posted December 23, 2009 at 9:23 am


I echo the need for moderate voices. Not necessarily moderate viewpoints, but definitely moderate tones!
I was a college sophomore on the UW campus when Matthew Shepard was murdered. I was there for the aftermath of protests, counter-protests, trials, and Hollywood movie stars…
The thing that was often missing in the public spotlight was moderate voices. I did not really have a great grasp of the issues at hand then, but even as I was, I had many opportunities to talk with the GLBT community about Jesus, and even about scriptural views on human sexuality, simply because I wasn’t shouting, and acknowledged the injustice done to their community.
If there had been a prominent Christian voice who had came to the forefront of that situation, they would have been embraced. Perhaps there were people doing so publicly, but all I saw in the public statements of Christians was the typical polarization: Christians who were bigots, or Christians who were affirming of homosexual acts.



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Kathy L.

posted December 23, 2009 at 9:29 am


Excellent article! Reading and listening to the debate over the modified hate-crimes law concerned me deeply. It was very difficult to see how “thought control” was even an issue. The, what I consider the FAR right, folks that yell the loudest are not countered by more moderate voices. There is a sense of complicity by the silence of more moderate Christian leaders.
The real concern for me is the constant bashing of gays by religious extremist. We are all one family under God. If we tear ourselves apart with more and more extreme rhetoric against each other, who will remain when we need help?
I know gay people from my daily life. They go to Church, contribute to our local community and are outstanding neighbors. Yet, when I hear the far right speak, you are lead to believe that gays are anti-Christian and out to get the rest of society. I know better. Therefore, I have to seriously doubt what I hear from the far right. From my personal observation, they just lie, in the name of Christ.
We are killing ourselves when we attack others.



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Steve S

posted December 23, 2009 at 9:34 am


I guess I didn’t answer the actual question!
I think as conservative Christians we are blind to systemic injustice by our predominantly white, suburban, middle-class, experience. The real reason behind these attempts at hate-crime legislation is to address this issue.
Locking someone up for an additional 10 years on a 75 year sentence is not the point. Sending a message to our culture is the point. And it is the precise counter message to the crime itself.
Hate crimes are different (this goes to the definition of the term itself) in that they are perpetrated upon a class of person, and so are an attempt to terrorize the whole group. If an individual is singled out because they are gay (as opposed to the fact that they are having sex with my wife) then the victim could easily have been anyone else. The criminal is terrorizing a whole group of people on top of committing a crime. Hate-crimes legislation is intended to criminalize that act.
I think it is something we as Christians can debate about, but it is unfortunate that we have become publicly seen as opposing (with vehemence) an attempt to protect a whole class of victimized people…



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Matt Summers

posted December 23, 2009 at 10:27 am


To me, it’s not an issue of “Thought Police,” although there are certainly progressives hoping that it will result in that very thing, as well as conservatives who will use it to raise the ire of their base.
To me, it’s an issue of equality. For a murderer of a homosexual to receive a stiffer sentence than a murderer of a heterosexual, is not “blind” justice, certainly not equality, and smacks of special-interest politics.
OT Law says, “Whoever sheds man’s blood, by man his blood shall be shed.” And NT Law says the government agent is “an agent of God’s wrath” who “does not bear the sword for nothing.” Murder, with aforethought and intent is “murder,” and should be punished with equal veracity–no matter WHO is murdered.



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ChrisB

posted December 23, 2009 at 10:30 am


Establishing criminal intent is not the same thing as judging one motive as more evil than another. Hate crime legislation in practice either only covers certain annointed groups or is only used to protect those groups.
And saying my murder is less criminal than this other person’s is a violation of my 14th Amendment rights.
BTW, didn’t it come out a few years later that Matthew Shepard’s killers didn’t know he was gay? Does that make their actions suddenly less abhorent? No.



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Richard

posted December 23, 2009 at 10:43 am


David, thank you for this very informative reading and the clarification of the provision in the Shepard act protecting free speech.
Well said Steve S. And great example for the rest of us to follow.



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Your Name

posted December 23, 2009 at 10:53 am


Hate that is targeting a group is a bit more servere than hate directed at someone that is preceived to have personally harmed you, i.e. your wife’s lover (I am of course excluding the possibility that she has an array, i.e. group, of lovers!). Why? Because the hate directed at a group, is undeminished after the immediate act of murder. Additionally, many holding a group hatred seldom have remorse ofter the killing, unlike the killing of your wife’s lover.
The difference between First Degree Murder and lesser degreed murder? The prepetrator’s state of mind!



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Rick

posted December 23, 2009 at 10:54 am


Steve-
“I think it is something we as Christians can debate about, but it is unfortunate that we have become publicly seen as opposing (with vehemence) an attempt to protect a whole class of victimized people…”
I don’t know if we can ever fully avoid this since many seek to hold not just the criminal at fault, but anyone they see (in their opinion) as expousing views that might have added fuel to the fire (inciting violence).



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dopderbeck

posted December 23, 2009 at 11:01 am


I’d like to push back a bit on the notion that all murder is morally equivalent. Of course all murder is abhorrent, but systematic murder is in some respects even more abhorrent than “ordinary” murder. We condemn the Nazis not only for the number of people they killed, but also because they singled out the Jews for systematic persecution. We could say the same about Tutsi killing of Hutus in Rwanda, and so on.
Hate crime laws are intended to erect a fence against the dark human tendency towards systematic oppression of particular groups. There is an issue of deterrence as well as punishment. I suspect that even most conservatives would agree that, given recent history, it is appropriate to place special emphasis on protecting groups such as Jewish people against the impetus towards systematic persecution.
It seems to me that the “real” issue has nothing to do with “thought control” or with whether some kinds of murder are “more immoral” than others. Nor, IMHO, does it have anything to do with the ludicrous federalism concerns some libertarians raised against the Shepard Act. I have no doubt that the religious right would not have bothered a whit if the federal hate crimes law revision were only about protecting Jewish, Black and Native American people against persecution.
Rather, it has everything to do with whether homosexual people should be recognized as a particular “class” or “group” of people, which some conservatives fear “normalizes” homosexual conduct. If that is the concern, then they should let their “yes be yes and no be no” and put those cards on the table in plain view (to FoF’s credit, they did advance this issue in some of their materials).
Here, the question does become somewhat more difficult for those of us who take a traditional view of the Biblical narratives concerning sexuality and marriage. We wouldn’t want to place crimes against “adulterers” or “gossips” into a “hate crimes” category — these would be “ordinary” crimes.
Perhaps this is another way of framing the question: does Christian love demand that we recognize something inherent about homosexuality that would warrant “group” protection under hate crimes laws, or does Christian love demand that we resist any policy whatsoever that may have the effect of “normalizing” homosexuality? Are these the only two options?



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Karl

posted December 23, 2009 at 11:23 am


I think the comparison of hate crimes to crimes of passion is a red herring.
For me a bettter comparison is to think of a murderer who is just angry at the world and sees everyone else as “other” to such an extent that he doesn’t value the lives of others and is willing to take them if it will help him get what he wants, if it gives him a release for his anger, or if they anger him or are in his way.
Is that person’s crime really less reprehensible than someone who channels his anger at a particular group of people, and murders someone of that particular group?
I’d rather see existing laws against crimes of violence enforced, and have sentencing guidelines that allow for a range of sentences depending on just how heinous the act was. A Matthew Shepherd-like crime could be punished under existing laws, with the stiffest penalties, for the brutality and heinous nature of the crime. But without saying “and this particular criminal’s dehumanizing state of mind toward his victim is somehow worse than the other criminal down the street who committed the same acts against someone NOT in the “protected class”.”



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Phil Atley

posted December 23, 2009 at 11:31 am


The threat is real, not imagined, not merely because of Canadian developments but because of prosecution of printers and photographers and IVF physicians in the US for refusing services to gays. The gay activists are not really interested in “equal rights” or “tolerance.” They must, for the sake of their own ease of conscience, silence all those who disagree with their view that homosexual orientation is not disordered.
They may, of course, be right in that belief. That’s not the issue here. The issue is how a pluralist society lives with differing beliefs. And those who do believe that same sex orientation is disordered (many of whom equally believe that as a heterosexual pornographic mindset is disordered–yet are denounced only for the former belief) and that acting upon the disorder is immoral (e.g., by refusing business services) rightly not only fear that the law may be used against them but know that it has already been unjustly used against them.
The same applies to the Obama administration assault on conscience protection from pharmacists who refuse to dispense the “morning after pill” and other medical personnel regarding abortion. (The frequently unnoticed crucial developement in Obamacare, for instance, is that it moves a step closer to defining abortion as just one more health care procedure among others, which then renders opponents violators of general health care delivery, which then undermines any claim to conscience protection.)
Because of these prosecutions, some of them administrative (bureaucrats have tremendous power and little accountability) rather than in courts of law (e.g.,the Minnesota woman fined for choosing not to rent to those whose lifestyle she disagreed with), Dr. Dopderbeck’s reassurance that the Shepard act contains a religious conscientious protection clause is no comfort.
Dr. Dopderbeck’s article is framed entirely in terms of what the “religious right” and “conservatives” are doing. This gets things off on the wrong foot. Nat Hentoff is no religous rightist or conservative but is farsighted enough to see the problem that Dr. Dopderbeck cannot see.
Please do not let your own backgrounds in one or another form of “conservative Protestantism” color your assessment of these issues. That’s how Planned Parenthood (on the conscience protection for pharmacists) or the gay activists (on the hate crimes legislation) would like you to frame it because if it’s framed that way, they move one step closer to shutting down the voices that trouble their consciences. If they are so confident that they are morally right in mainstreaming and normalizing same-sex orientation and behavior, why must they silence all opposition?



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Jimcracky

posted December 23, 2009 at 11:42 am


Having read the article and the comments, I find the call for moderate voices to be useful. Heaven knows there is lots of screaming from both sides and no lack of those who make themselves and the groups they represent look like total lunatics; for example, those praying for President Obama’s death. However, in the comments I find a general lack of understanding of what the Matthew Shepard act does. Several of noted this is not “thought crimes” legislation, it specifically supports the rights of religious groups to express their opinions, a.k.a. beliefs. Only one person has noted the nature of all hate crimes legislation is not to punish the singular crime – for which there are already laws – but to add a penalty for the terroristic threatening of entire groups – the message that crime is intended to send to the larger community which is, “If you’re one of them, and I get the chance, I will hurt or kill you all.” 9/11 was a national trauma not only because of the almost 3000 people it killed, but because it was a terroristic threat to an entire class of people – citizens of the U.S. Those threats matter. They destroy quality of life. I knew a man who ran around my city with a bumper sticker on his truck saying, “I don’t brake for faggots.” We gay people did not ask to be a “class” we were identified as such by those who hate and fear us.
However the singular misunderstanding in the comments is around this issue of groups and it is a blindness that is always prone in the dominate group. You don’t see “sexual orientation” as applying to you, but the law does apply equally to everyone. If someone is murdered because he’s straight, that would be a hate crime covered under this act. As in the inverse case, it would be incumbent on the legal system to show that the straight person’s sexual orientation was a motivator for the crime, but given that, the law would apply. There are no “special rights” here, but there would be no need for the law at all if there were not hundreds of “gay bashings” every year of innocent people who do nothing more than have or desire same-sex relationships. Conversely, if a “gay church” were to refuse to marry two heterosexuals because it violated their beliefs (no such church exists to my knowledge) they would be within their rights to do so. Equality under the civil law is all gay community has asked for.



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Ray Ingles

posted December 23, 2009 at 12:12 pm


If you support, say, pharmacists not handing out prescriptions they have moral objections to… well, be careful what you wish for.
“Some Muslim medical students are refusing to attend lectures or answer exam questions on alcohol-related or sexually transmitted diseases because they claim it offends their religious beliefs.”
http://www.timesonline.co.uk/tol/news/uk/health/article2603966.ece
“Muslim medical students are refusing to obey hygiene rules brought in to stop the spread of deadly superbugs, because they say it is against their religion.”
http://www.telegraph.co.uk/news/uknews/1577426/Female-Muslim-medics-disobey-hygiene-rules.html



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Karl

posted December 23, 2009 at 12:18 pm


Jimcrackey, I understand what you are saying. But it still seems to me that hate crimes legislation is taking something that would not be a crime if not acted upon (thought, speech) and saying that if you act upon it, not only are the actions a crime but so are the thoughts and speech.
Most free speech advocates would acknowledge the right of even someone so offensive as Fred Phelps to espouse his views. Or the right of a Muslim army doctor to hold anti-american, anti-war views. If Phelps hurts someone he should be prosecuted for the assault or murder. If the muslim army doctor shoots someone he should likewise be prosecuted. But to get into the thoughts and words that motivated the crimes, thoughts and words that would have been repugnant but fully protected under the constitution “but for” the physical actions taken . . . I don’t see that being the way to go.



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John W Frye

posted December 23, 2009 at 12:42 pm


David O,
Once again your essay and questions and the comments here are a saturated learning experience for me. I appreciate your clear, irenic way of writing and responding.



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Darryl

posted December 23, 2009 at 1:15 pm


Very thought provoking. Thank you. I think I agree with you more than not. However, consider this:
(Disclaimer: I am not a lawyer–which is probably obvious–so I am willing to be corrected for any misunderstanding of law expressed below):
My concern is by introducing penalties for crimes of hatred against homosexuals there is the mitigation of the crime of murder or whatever crime was committed. If a person is murdered with malice aforethought then isn’t that truly enough? I think it is horrendous that any person be abused, harmed, or killed by people with evil intent. My assumption is that hatred most often is a motive behind murder.
I would almost think the lack of hatred would be more frightening. Is the hired assassin of a homosexual leader less culpable because he only sells to the highest bidder? He perhaps has not feelings one way or another that the person is homosexual.
Which is more chilling? If such a person is caught, should is sentence be less because he didn’t have any particular malevolent feelings about the person’s sexual orientation?



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T

posted December 23, 2009 at 1:33 pm


David,
Thanks for raising this. I don’t know if enough Christians have thought about how it comes accross to the watching world when we are apparently more concerned about a potential future loss of our right to speech concerning homosexual conduct than we are about deterring violence against gays who are targeted for their homosexuality. If anything, because we do publicly denounce homosexual conduct (which is often used to justify or encourage or tolerate violence against gays), Christians should arguably be the first to support such laws to make it clear that while we oppose homosexual conduct, we highly value all persons, and that violence to homosexuals for their sexual misconduct or ideological differences is absolutely, 100% counter to the Spirit and teachings of Christ. If a stiffer legal penalty is helpful to discourage people in our culture from targeted violence against gays, we should be all for it, precisely because we want to continue to oppose the sin while serving and protecting and loving the sinner, and making it clear to all that’s exacltly what we’re doing. The arguments concerned with our potential future speech rights over and against the safety of folks that have been and continue to be targeted for violence (sometimes because of a mis seems empty to me, and completely foreign to the ethics taught by Christ.



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PhilAtley

posted December 23, 2009 at 2:47 pm


Jimcrackey at 11:42
I think you miss our point. From experience, we do not trust the hate crimes laws to be applied evenhandedly. A woman was murdered in Chicago about 3 years ago, solely (and I mean solely) because she admonished the gay man who rented an apartment from her about the immorality (from her perspective) of his way of living. She did not do so in any particularly abusive or violent way. He murdered her in anger. The authorities refused to apply existing hate crimes legislation. The same thing happened in the Jesse Durkhising rape and murder case about the same time as the Shepard case. And numerous additional examples could be cited.
After 40 years of judicial rulings selectively restricting the freedom of religious expression clause of the 1st Amendment for Christians in the name of upholding the disestablishment clause of the same amendment, after years of seeing Christian religious beliefs expressed in the public sphere suppressed (children drawing Christian religious symbols in classrooms being punished while role-playing in Islamic or Aztec religious imagination being mandated)
we simply do not have confidence that heterosexuals will be protected in the case of gay hate crimes or that, in the Shepard/Byrne Act that advocacy of Christian beliefs that same-sex attraction is disordered and same-sex acts are immoral will be protected as religious expression.
We just don’t have any confidence in what you hold out as protection for us. And if you are going to explain our problem as being the “dominant” part of the culture and hence insensitive to the situation of gays, well, I submit that the time has long, long, long, long, long since passed when traditional Christian views on same-sex issues were dominant. Those who hold that the orientation is disordered and the acts are immoral are no longer dominant.
Perhaps you are insensitive to our concerns because gay-tolerance, same-sex marriage tolerance is now dominant among the culturally dominant elites–in universities, journalism, big-business, bi-coastal urban culture. That’ is why “flyover country” is agitated. They rightly see that their beliefs are being written off as hateful and they no longer trust the lawmakers to stand up to protect their genuine religious expression when it differs from the gay-friendly mainstream.
You are about 10-15 years behind the curve on this. You are now Dominant. Get used to it.



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PhilAtley

posted December 23, 2009 at 2:52 pm


I see that I mistakenly referred to Dr. Opderbeck as Dopderbeck, confusing his screen name with his real name. My apologies.



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blackwasp19

posted December 23, 2009 at 2:56 pm


Perhaps one of the reason’s this law is difficult – particularly for many white-Evangelicals – is because its language is group-oriented rather than individually-orientated. While the law may often be enforced when an individual acts or speaks against an individual, the purpose is the protection of a group. The particular person will, obviously, be protected, but the impact comes with the community that person is within. The law prevents hate for particular groups to mature and embed itself within society.
We see this example racially. Although we have a great way to go in achieving racial harmony, the 1969 Federal Civil Rights Law, which began hate crime legislation, has greatly – though not completely – disarmed the racial hate that was prevalent pre-1970. I don’t want to imagine the U.S. if the 1969 Federal Civil Rights Law never passed.
And we cannot pigeonhole the issue of hate crime to the hot-button homosexuality issue. Disability and gender were both elements of the Shepard Act. Furthermore, religion is one aspect of hate crimes laws. Most Christians hold to the unbiblical nature of homosexual behavior and most also hold to the unbiblical nature of Islam. They may be different issues, but, in essence they, are both in contrast with what most Christians view as biblical truth.
I also question, if the table was completely reversed, and Christians were the vast minority – as it is in many middle-eastern nations – would Christians be more supportive of a bill that includes Christians within the minority group – which technically is included in the 1969 Federal Civil Rights Law? Is this an issue of real philosophical disagreement or is it an issue of not understanding the context of a group of people?
The prevention of hate – of people not actions – is Christian belief (Lev 9:17, Matt 5:44). We need to recognize and better differentiate between of protection of people and moral validation of actions or lifestyles. I realize the fear is that the traditional Christian perspective of homosexual behavior will no longer be able to be articulated, but this is MORE reason to remain consistent in our affirmation of all peoples as valuable and the creation of God. Hate laws are reactionary; the more hateful Christians appear, the more protective and restrictive legislation will become.



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Clint Parsons

posted December 23, 2009 at 4:28 pm


“hate” crimes are discriminatory.
Murder (I meant to..) and manslaughter (oops) are already on the books.
This is a gag order in waiting.
Just scratch people’s itching ears and be done with it…



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Diane

posted December 23, 2009 at 4:49 pm


Thank you for taking this on David.
I learned in my history classes years ago that laws are pased not with the intent to punish but to deter. So if you want to find out, say, what the crimes were in a certain shire of England in 1250, you study the laws and see if certain crimes suddenly have an uptick in penalities: If there are a rash of stiffened penalties, say, for food theft, you can make a pretty good bet that food theft was increasing. The reason for the stiffer penalty, for example, chopping off a hand, was not to produce a population of the one-handed, but to deter people. So while I support the idea of hate crime legislation to protect gays from violence, I also question how effective it will be in this climate of polarization. Will it actually deter hate crimes? Or will it anger and incite those who see gays getting privileges and who sincerely believe gay marriage is the end of civilization? And on the other side, will it embolden people who see a gay hater lurking around every corner to go into overdrive on trying to use the law to defend themselves but perhaps in an overly aggressive way? I think first we need to find a way to talk: when I have questioned pro-traditional family Christians, it seems as though moving one micron in the direction of even suggesting that gays should have a right here and there marks you as immediately not only not a Christian, but somehow in the clutches of Satan, and if you are questioning a pro-gay Christian group to move one micron away from the position that every gay person is a persecuted saint it marks you as a hater and hypocrite and again, not a Christian, but more as the equvialent of a slave trader (!). With such moral certainty on both sides, how can we get anywhere?



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bck

posted December 23, 2009 at 8:24 pm


How ever did we manage to punish the criminals responsible for the deaths of James Byrd and Matthew Shepard prior to the passage of this law? In the case of James Byrd, two of the perpetrators were sentenced to death, the third to life in prison. For Matthew Shepard, both perpetrators received life. What purpose does this legislation serve?



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Danny O

posted December 23, 2009 at 9:46 pm


bck — FYI — Read the other comments. Read any article about hate crimes. Use some common sense. Or should everyone else do your research for you?



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bck

posted December 24, 2009 at 12:56 am


Danny,
http://en.wikipedia.org/wiki/Rhetorical_question
Did a little research. Mistake on my part for thinking this a commonly understood technique.
To briefly spell out the point of my prior post, I do not see how the passage of hate crime laws furthers the cause of justice.



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dopderbeck

posted December 24, 2009 at 10:18 am


bck (#33) — the arguments you’re making here are fair. In brief response, I think hate crimes laws can sometimes further the cause of justice by highlighting for special reprobation social antipathies towards particular groups that sometimes erupt into violence. Again, our human history shows the prevalence of such trends — e.g., the Nazis and the Jews. But the argument I make here is certainly contestable — ultimately it might be an empirical question.
What is unfair, IMHO — and sometimes (not by you) dishonest — is the argument that hate crimes laws really represent some sort of conspiracy to control our thoughts and silence Christianity. I’m deeply concerned when groups like CWA and FoF, which are supposed to represent a Christian viewpoint in the public square, resort to this sort of manipulative and dishonest rhetoric. And on top of that, I’m deeply concerned that the desire to “win” politically has compromised the mission of the Church in North America. I’m convinced that on balance the Kingdom is hampered by these lobbying campaigns. But that’s just my view.



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bck

posted December 24, 2009 at 12:36 pm


dopderbeck,
I concur with you that these laws aren’t some sort of conspiracy or specifically anti-Christian and arguments to that effect are unfair. As Christians we ought to argue honestly and against the best arguments of our opponents. My opposition to hate crimes laws is from the perspective of needless over-legislation using vague language that may open doors in unintended ways once in the hands of creative prosecutors. In the vein of Three Felonies a Day and Go Directly to Jail.
To your first paragraph, I am a big fan of societal disapproval and its pressures as a means to highlight our opposition to those social antipathies. However, I see codifying those things in to law as something that ought to occur at the end of a process, rather than the early stages, with new rules typically coming about after there is near universal agreement as to what those rules should be. That is to say, laws are usually a “lagging indicator” of what the public at large already thinks. It’s when the law gets too far in front of public opinion (e.g. hate crime legislation, abortion, gay marriage, etc.) that we wind up with the divisive arguments that take place around those issues. More time spent persuading hearts and minds (whatever side of those issues one may be on), rather than legislating desired outcomes, would be my preference.



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