A More Perfect Union Jul/Aug 2009

Thomas Jefferson once famously said, “Almighty God hath created the mind free….All attempts to influence it by temporal punishments or burthens [burdens]…are a departure from the plan of the Holy Author of our religion.”

Those words are inscribed in the marble of the Jefferson Memorial in Washington, DC. It is a pity that a few blocks away, in the U.S. Congress, our elected officials don’t share Mr. Jefferson’s penchant for the freedom of ideas.

By the time you read this column, both the House of Representatives and Senate probably will have passed federal hate-crime legislation—a testament to the fact that true freedom of thought and opinion in America may soon vanish, along with the ability to broadcast the gospel.

Much of the lobbying pressure for this law has come from two groups: homosexual activists like the Human Rights Campaign, which wants legal advancement of the “sexual orientation” category, and pro-Muslim groups that focus on the “religion” category in hopes of quelling what they see as hostility toward Islam.

Even the basic idea underlying this legislation is flawed. From both a moral and commonsense standpoint, all crimes committed against individuals, particularly violent crimes, imply a degree of hatred or malicious indifference toward the victim.

However, the newest federal variation of hate-crime legislation takes a much more sinister turn. It creates a whole new species of federal hate crimes and, in so doing, protects categories of “sex-ual orientation, [and] gender identity” along with “religion.” And breaking this law requires no violence at all.

What is the net result? It is my opinion and that of several Christian legal groups that this legislation will become the basis for an assault on the free-speech rights of Christians.

Lest you think I exaggerate, consider this: The use of the term bodily injury includes such vague things as “mental trauma” and even a fleeting impairment of a “mental faculty.” This means that if a homosexual or Muslim, for example, were exposed to a sermon from the pulpit or biblical teaching on the radio that criticized homosexuality or exposed Islam’s false ideas about Christ, and the listener alleges that he was “intimidated” as a result, that preacher or radio broadcaster could be charged with a federal hate crime.

But wouldn’t the First Amendment protect that preacher and radio broadcaster? Not likely. Back in the 1990s the U.S. Supreme Court rendered an opinion that severely eroded First Amendment protection under the free exercise of religion clause. And in the free-speech arena, the news is no better. In 2002 the Supreme Court indicated that free speech can be infringed where the government articulates a concern with a “special crime problem.” And Congress has declared hate crime a national problem (despite statistics to the contrary).

Further, in the 2003 case of Virginia v. Black, the Court indicated that where mere unpopular expression, even without any actual violence, causes “intimidation,” that fact alone can form the basis for a criminal hate-crime prosecution.

My review of current case law convinces me that we live in a climate where the courts are increasingly willing to punish controversial, politically incorrect communications even when no violent act takes place.

Of course, as Christians, we need to denounce the use of hateful language. But the cure for it is the advancement of Judeo-Christian morality and the life-changing message of the gospel, not politically inspired hate-crime laws that will be used as weapons against biblical ideas that are unpopular.

In every nation where hate-crime laws have been passed, Christians have been targeted with criminal prosecution for communicating Bible-based truth. As I write this column, I am working with other Christian lawyers in trying to build protective language into law to prevent that from happening in America. Only time—and the prayers of dedicated Christians—will tell whether we will be successful.

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