Irresponsible Hysteria

I subscribe to Bill Keller's daily devotional emails. I don't agree with 100% of what he says or how he approaches certain matters, but many days I'm blessed by his emails. I emailed him last year, and he - personally - phoned me several times with an answer and a few follow-ups. He is one of the few people whom I honestly believe truly means it when he closes his messages with a simple "I love you." That said, I was disappointed nearly to the point of feeling ill by Wednesday's email. With the subject line "I'll be in jail one day soon for preaching the Bible!" he launches into the following:

I told you by the end of the year, there would be laws on the books making it ILLEGAL to speak out against the sin of homosexuality, every [sic] from the Bible. That could actually be a reality within the next month as Congress is seeking to jam such a bill through THIS WEEK!

I know that people have differing views on homosexuality, but that is not the point here. Nor am I trying to start a debate on homosexuality either - let me be clear on that. I also know that many of us have strong feelings on homosexuality. That's fine, too. What is not fine - or responsible - is to resort to hysteria and untruths. If you present a problem, publicize it, and urge immediate action, please, do your research. In addition to being flat-out wrong, I'm sure that the sponsors of the bill and who knows how many legislators are wasting too much valuable time responding to concerned - but ill-informed - citizens. Though I am using Mr. Keller's email for this post, a similar sentiment that "unless we act now, we will be forbidden to read from the Bible!" can be found in many mainstream religious groups (usually Christian).

I strongly suspect that Mr. Keller is channeling Ake Green, a Swedish pastor, who was found guilty of offending homosexuals in a 2003 sermon in which he described homosexuality as "abnormal, a horrible cancerous tumour in the body of society." Sweden does not function under the United States Constitution. Even if the proposed law Mr. Keller references did seek to circumvent the Constitution - which it does not - such a law would immediately be litigated and ultimately overturned.

I believe that Mr. Keller is referring to H. R. 1592, a hate-crime prevention act that expands hate-crime status to a crime where the crime is specifically# motivated by "actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim." Speech is not a hate crime, and speech is not even an issue in H.R. 1592, which is quite clear that a hate crime can be only one that involves "assault, aggravated assault, or shooting." To be even clearer, the bill refers only to criminal assault.+ And, to be perfectly clear for the benefit of those who whip themselves into a frenzy over the phrase "sexual orientation", the bill closes with the following:

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 free speech or free exercise clauses of, the First Amendment to the Constitution. [emphasis mine]

Rumors like "religious leaders will be sued/jailed for reading from Leviticus" or "priests will be forced to marry same-sex couples" are just that - rumors. There is a firm respect for religious practice in the religious sphere. Houses of worship enjoy a tax-exempt status. The Salvation Army is free to legally discriminate against homosexuals. Heck, if smoking peyote is a bona fide, integral part of your religious practice, go and toke up. [This is not legal advice and I am referencing State v. Mooney.] Though it is not my area, case law on religious freedom in the religious sphere seems quite strong - and the purported punishment for a politically incorrect sermon absolutely and obviously violative of that tradition.

Even more absurd is this idea that the government can force a religious leader to perform same-sex, interracial, or interreligious marriages. A county court clerk can certainly face orders to perform a same-sex civil ceremony where same-sex marriage is the law because a government official is charged with upholding the law. A government employee does not have the discretion to only enforce laws he finds to his liking.* If there is an example of a religious leader forced violate his religious beliefs on a religious matter, I can't find it.** Indeed, there is no shortage of instances of a religious group enjoying freedom from matters a non-religious group does not. For example, a church employer is free to discriminate against women as Sunday School teachers if the reasoning is grounded in a bona fide in interpretation of Paul; a secular employer is obviously not.

What is especially curious about Mr. Keller's prediction is that such a proposed law would violate not only the Constitutional prohibition against excessive government entanglement with religion, but also the prohibition against the government infringing the right to speech. I won't launch into a full history lesson on free speech as I think we all know the basics. There are clear-cut tests for when the government can limit speech, and limiting anti-homosexuality speech would fail the test. To be sure, painting "abomination!" in blood on Ellen DeGeneres' front door would likely constitute harassment - but so, too, a racial epithet. The government can usually regulate speech-related conduct - rarely content. Thus, the government can require that the Westboro Baptist Church secure a permit prior to protesting (regulating conduct), but not refuse the permit due to their message (content). If Mr. Keller wishes to preach against homosexuality from the pulpit, he can do so knowing the Constitution protects his speech - and that H.R. 1592 does, too.

# The motivation is crucial for a crime to rise to the level of hate-crime status. Mugging a black person because you want money is not a hate crime. Pushing a black person to the ground, yelling racial slurs, stomping on his head, and then stealing his wallet is likely a hate crime because the racial slurs indicate that the crime was motivated by race. Contrary to popular opinion, hate-crime legislation does not create new crimes, nor does it make hate or hate speech illegal. It simply adds an additional punishment to the underlying crime where there is clear evidence that hate was a motivating factor.

+ Criminal and civil assault are two different creatures. Civil assault is intentional act that causes a reasonable apprehension an imminent harmful or offensive contact to or about the body that is unconsented. It need not involve actual contact; the reasonable fear of an imminent contact is assault. If you are approached by someone who shoves a knife in your face and demands your wallet, you probably have a reasonable fear that the knife is about to make an immediate, harmful contact with your body and you did not consent to such contact. That is a civil assault. Note, however, that there must be an act. Mere speech is not enough. Thus, if you quote Leviticus while waving a gun in his face, you've probably given that person a reasonable fear of an imminent and harmful contact of the gun or bullet to his body.

* Some higher-level government employees do enjoy some discretionary powers, but such powers are limited and generally clearly enumerated.

** The courts are clear, however, that freedom of religious practice does not include the right to engage in ritual murder or child sexual abuse. Serious legal crimes where someone is killed or abused seem to be the limit. The use of certain hallucinogenic drugs (State v. Mooney, 98 P.3d 420 (Utah 2004)) and ritual animal sacrifice (Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)), have been upheld as religious rights.