{"id":5127,"date":"2009-12-23T05:44:56","date_gmt":"2009-12-23T05:44:56","guid":{"rendered":"http:\/\/blog.beliefnet.com\/jesuscreed\/2009\/12\/law-at-the-jesus-creed-david-o-3.html"},"modified":"2009-12-23T05:44:56","modified_gmt":"2009-12-23T05:44:56","slug":"law-at-the-jesus-creed-david-o-3","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/jesuscreed\/2009\/12\/law-at-the-jesus-creed-david-o-3.html","title":{"rendered":"Law at the Jesus Creed: David Opderbeck"},"content":{"rendered":"

\"Lawbook.jpg\"<\/span><\/p>\n

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<\/b><\/a>.<\/i><\/p>\n

Law:  <\/span>Hate Crimes, Thought Crimes, and Religious Freedom<\/p>\n

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

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.<\/span><\/p>\n

<\/p>\n

The Family Research Council’s website<\/a> played on a similar theme:<\/p>\n

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.<\/p>\n

<\/p>\n

Are “hate crimes” laws a prelude to government “thought control?”  <\/span>Should Christians oppose “hate crimes” laws that apply to crimes based on animus against homosexuals?<\/span><\/p>\n


\n<\/p>\n

One of the things that irked me most about the recently
\nannounced Manhattan Declaration<\/a>
\nwas its somewhat oblique reference to this question of “thought crimes.”  <\/span>It appears here: <\/span><\/p>\n

Because we honor
\njustice and the common good, we will not comply with any edict that purports to
\ncompel our institutions to participate in abortions, embryo-destructive
\nresearch, assisted suicide and euthanasia, or any other anti-life act; nor will
\nwe bend to any rule purporting to force us to bless immoral sexual
\npartnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality
\nand immorality and marriage and the family<\/i>.<\/p>\n

<\/p>\n

(Emphasis added.) 
\n<\/span>I agree with the notion that religious institutions should be free,
\nwithin limits, to operate according to their own moral principles.  <\/span>I use the qualifier “within limits” here
\nbecause the “moral” principles of some religious groups are incompatible with
\ndemocratic civil society.  <\/span>We would
\nnot, for example, permit religious jihadist groups to operate unencumbered, nor
\nwould we tolerate spousal or child abuse even if it is the norm within some
\nreligious communities.  <\/span>But surely
\na religiously-affiliated health care entity should not be compelled to
\nparticipate in abortions, nor should churches that hold to traditional marriage
\nbe forced to solemnize gay unions.<\/p>\n

I also agree that religious institutions must remain free to
\nproclaim what they believe to be the truth about moral issues, including about
\nmarriage and sexuality, even if some people find the message distasteful.  <\/span>This is a basic freedom enshrined in
\nthe first amendment.  <\/span><\/p>\n

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

The truth is that it is not at all unusual or for the law to
\nimpose different penalties depending on a person’s state of mind.  <\/span>Indeed, the very foundations of Western
\ncriminal law rest on determining internal states of mind:  <\/span>actus
\nrea<\/i>, or the intent to act, and mens
\nrea<\/i>, literally having a “guilty mind.”  <\/span>Generally, there is no criminal liability if only actus rea<\/i> can be proven; the state must
\nalso prove mens rea<\/i>, a mental state that
\nrenders the action criminal.<\/p>\n

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

I could give hundreds of other examples in which state of
\nmind is relevant either to the elements of a crime or civil claim or to the
\npenalty or damages to be imposed. 
\n<\/span>Indeed, it’s fair to say that both the criminal and civil law routinely<\/i> address a party’s mental
\nstate.  <\/span>To suggest that hate crimes
\nlegislation is unique in this regard is false.<\/p>\n

What is truly unfortunate about the religious rights’
\nresponse to the Shepard Act, in my judgment, is that a sea of alarmism and
\nmisrepresentation drowned out the legitimate concerns and witness of Christians
\nwho hold to traditional Biblical teachings about marriage.  <\/span>The only religious leader to testify
\nbefore the Senate
\nJudiciary Committee<\/a>  <\/span>in favor
\nof the Shepard Act was Mark Achtemeier<\/a>,
\na Presbyterian minister who teaches theology at Dubuque Seminary.  <\/span>Unfortunately, Achtemeier has become a
\nlightning rod in the PCUSA because he has migrated from a traditional Biblical
\nview of marriage to a revisionist view that would consider certain kinds of
\nsame-sex unions Biblically appropriate. 
\n<\/span>This is particularly troubling because Acthemeier could otherwise be
\nconsidered a moderate or “third way” evangelical (his book
\non scripture<\/a> in my opinion is an excellent example of a “third way”
\neffort).  <\/span>What if the primary
\nevangelical voice had been a truly moderate one, which affirmed traditional Biblical
\nsexuality but also supported the Shepard Act?<\/p>\n

The Shepard Act controversy seems to highlight the divide
\nthat has beset the Protestant churches since the fundamentalist-modernist
\ncontroversy.  <\/span>The center never
\nseems to hold for very long. 
\n<\/span>Reactionary dishonesty or revisionist pablum seem to be the only
\nalternatives.<\/p>\n

What do you
\nthink?  <\/span>Is the conservative
\nrhetoric about “hate crimes” fair? 
\n<\/span>How can Christians address concerns about censorship in connection with
\nthe issue of “hate crimes?”  <\/span>Can Christians
\nwho hold to traditional Biblical sexual morality support “hate crimes” laws
\nthat protect homosexuals?<\/b><\/p>\n

 <\/p>\n

 <\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n","protected":false},"author":70,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[62],"tags":[],"class_list":["post-5127","post","type-post","status-publish","format-standard","hentry","category-law"],"yoast_head":"\nLaw at the Jesus Creed: David Opderbeck - Jesus Creed<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.beliefnet.com\/columnists\/jesuscreed\/2009\/12\/law-at-the-jesus-creed-david-o-3.html\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Law at the Jesus Creed: David Opderbeck - Jesus Creed\" \/>\n<meta property=\"og:description\" content=\"David Opderbeck, one of our vigorous and steady commenters, is doing a series for us on law. 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