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James L. Evens wrote a recent piece, entitled Americans’ freedom to speak is not in jeopardy
Several Christian conservative leaders are doing some serious fretting about a pending hate crimes bill. Congressional Democrats have proposed adding sexual orientation and gender identity to the list of federally prosecuted hate crimes. The bill carries the name of Matthew Shepard, the 21-year-old Wyoming college student who was murdered 10 years ago because he was gay.Christian leaders such as Richard Land, president of the Southern Baptist Ethics and Religious Liberty Commission, are concerned that the passage of the bill will have a chilling effect on Christian preaching. Land in particular is concerned that preaching against homosexuality will become linked to acts of violence against gays and lesbians and cause insurance liability costs to go through the roof.
And goodness knows how much Jesus worried about the cost of liability insurance.
Of course, the real concern among these Christians is a perceived threat to free speech. Critics of the bill argue that preachers could face arrest for speaking against homosexuality. They fear that condemnatory preaching will be portrayed as hateful speech…
And, of course this is nonsense. As speech is addressed in federal hate crime legislation that goes to motive; that goes to punishing the secondary crime of terrorizing minority communities. Wisconsin v. Mitchell states:
In determining what sentence to impose, sentencing judges have traditionally considered a wide variety of factors in addition to evidence bearing on guilt, including a defendant’s motive for committing the offense. While it is equally true that a sentencing judge may not take into consideration a defendant’s abstract beliefs, however obnoxious to most people, the Constitution does not erect a per se barrier to the [508 U.S. 476, 477] admission of evidence concerning one’s beliefs and associations at sentencing simply because they are protected by the First Amendment. Dawson v. Delaware, 503 U.S. 159; Barclay v. Florida, 463 U.S. 939 (plurality opinion). That Dawson and Barclay did not involve the application of a penalty-enhancement provision does not make them inapposite. Barclay involved the consideration of racial animus in determining whether to sentence a defendant to death, the most severe “enhancement” of all; and the state legislature has the primary responsibility for fixing criminal penalties. Motive plays the same role under the state statute as it does under federal and state antidiscrimination laws, which have been upheld against constitutional challenge. Nothing in R.A.V. v. St. Paul, supra, compels a different result here. The ordinance at issue there was explicitly directed at speech, while the one here is aimed at conduct unprotected by the First Amendment. Moreover, the State’s desire to redress what it sees as the greater individual and societal harm inflicted by bias-inspired conduct provides an adequate explanation for the provision over and above mere disagreement with offenders’ beliefs or biases. Pp. 485-488.
Free speech is protected, but protected free speech used to prove motive against unprotected criminal can be used for singling out enhanced penalties for…
…bias-inspired conduct because this conduct is thought [508 U.S. 476, 488] to inflict greater individual and societal harm…The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases. As Blackstone said long ago, “it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness.”
Mr. Evans concluded his piece this way:
…the First Amendment of the Constitution ensures that religious speech is protected, no matter how ridiculous or hateful it is.
I asked my Baptist Minister friend Allyson Robinson (who has been highlighted at TransFaith Online, and who occasionally writes pieces for her Crossing The T blog) what she thought about Mr. Evans piece — about his thoughts on the concerns expressed by some people of faith (mostly from the religious right) about the fears that federal hate crime legislation that addresses sexual orientation and gender identity will suppress free speech. Her response:
The argument that this bill somehow limits free speech from the pulpit is specious at best and intentionally misleading at worst. The Matthew Shepard Act contains very specific language clarifying that Constitutional rights — including free speech and free exercise of religion — are protected. Beyond this, state hate crimes laws have been around for decades and the current federal hate crimes law has been in place since 1968; not once has anyone in our country, clergy or laity, been prosecuted under these laws for their speech.There are fewer public platforms in America more respected than our pulpits, and fewer still that enjoy greater legal protection. I’ve preached all over the world – from small, struggling Baptist churches in Russia to tent-chapels in Saudi Arabia – and so I’m especially aware of that special status. Anti-gay pastors need not worry that the Matthew Shepard Act will degrade the legal protection their pulpits enjoy. They should be far more concerned that their own preaching, which denigrates the character of LGBT Americans, will damage the respect those pulpits have garnered.
I couldn’t agree more with Allyson Robinson, and to me the last sentence in her statement seems particularly poignant.
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Related:
* More “Thought Crime” Meme, But This Time From A Pulitzer Prize Winning Editorialist
* Eric Holder’s Statement At The Senate Matthew Shepard Act Hearing Today
* Now It’s Dr. Dobson Discussing The “Dangers” of Hate-Crimes Bills — Like The Matthew Shepard Act
* Was Allen Ray Andrade Expressing The Kind Of Christian Free Speech That FOTF Is Talking About?
2 Comments
Marginalization“Anti-gay pastors need not worry that the Matthew Shepard Act will degrade the legal protection their pulpits enjoy. They should be far more concerned that their own preaching, which denigrates the character of LGBT Americans, will damage the respect those pulpits have garnered.”
This is the crux of the matter. We recognize the distinction between de jure, as a matter of law, and de facto, as a fact of reality.
We appreciate that the KKK can say most anything they want about blacks, mount protests and parade through Pulaski, TN, the home of the clan if they want. The law allows them to do these things. Yet as a result of the civil rights movement, inclusion of race in the original hate crimes legislation and other factors, the clan has generally been marginalized by the majority of Americans.
So what these anti-gay proponents really fear is not that they will be denied the right to free speech, but that the views they present about gays will become increasingly marginalized till they end up in the same state of disrespect as the KKK.
Assuring them that their free speech rights are protected is really a wasted effort, since it’s being marginalized that is their real worry.
Thank you, AutumnI appreciate this post. It is refreshing to see a Christian discussing the reality behind hate crimes legislation (as opposed to espousing falsehoods.) Thank you very much!