A “hateful” political sleight of hand

Well, after moving the offices of The Family Action Council from Chattanooga to Nashville, we are finally back in the saddle and ready to resume our role in keeping you up to date on issues in Tennessee affecting the family. Moving is not for the faint of heart!

And while we are on the topic of moving, we would note that our U.S. Senators, Lamar Alexander and Bob Corker, are moving around our state during their August recess. Whether you supported them in their elections (and Senator Alexander is up for re-election next Fall) we would encourage you to engage them in a discussion of the issues important to you if they should come through your area of the State. As a former elected official, I know they want to know what is important to you,and it is very important they know what is important to you. No where is it more true than in politics that the squeaky wheel gets the oil.

One issue we think is important and about which you might want to determine their respective positions is a bill they will be voting on when they return,  <http://www.govtrack.us/congress/billtext.xpd?bill=s110-1105> S.1105, the so-called “Hate Crimes” bill. While our focus is on state issues, we believe there are some federal issues that can so impact our state that we should address them. And, this bill is one of them because it touches on the issues of justice and freedom of speech.

The rhetoric on both sides of this bill has been very strong and, to be honest, we’ve not weighed in to this point because we had not yet determined for ourselves where the truth lay in all the talk (and we were busy moving!). But, I believe we have now cut through the rhetoric, and hope that our thoughts will help you settle the matter in your mind, even as ours is now more settled.

The War of Words

Recently, the Commercial Appeal reported that a number of African American pastors were putting a full court press on U.S. Representative Steve Cohen (D-9th Memphis) to vote against the bill, claiming that the proposed law could prevent them from preaching on the issue of homosexuality (Commercial Appeal, “Pastors Attack Cohen On Bill,” by Bartholomew Sullivan, 8-2-07).

A supporter of the bill, Representative Cohen’s response was “to accuse ‘a group of right-wing, evangelical Republicans, national in scope,’ of misleading pastors in his 9th Congressional District with misinformation” to the effect that “the bill will somehow quell their First Amendment rights to speak what they think about the Bible and about people's conduct. That's not true whatsoever."

So, who is right? Is Senator Cohen accurately stating that there is no basis for the concerns the pastors expressed? Are the pastors simply seeing “black helicopters” of speech suppression where none exist?

What does the bill actually say?

When you read the bill, and I read it over and over, it would appear that Representative Cohen is correct. No pastor who preaches against homosexuality could be prosecuted for a hate crime unless the pastor,

willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person (emphasis added),

We don’t think there are any pastors who will be causing bodily injury because of what they say and, in any event, the any such injury would have to be caused by “fire, a firearm, or an explosive or incendiary device.”

Ah, but here’s the beef…

But, here is where the political deception lies and where the pastor’s fears move into the realm of legitimacy. There is another law, already on the books, 8 USC Section 2, that provides:

a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

And this is where we find Representative Cohen’s dismissive treatment of these pastors’ concerns to be in error.

In recent years we have seen where people have done some pretty awful things claiming “God told them to do it,” from killing one’s children or parents, to bombing abortion clinics.

Assume, for instance, a pastor preaches against homosexuality in a way that some person takes it upon himself or herself to “blot out” a homosexual as part of one’s “duty” to God. Now, strictly speaking, the pastor would not have “counseled” or “induced” the underlying “hate crime, but a zealous prosecutor (with the combination of these two laws) could charge the pastor as a “principal” in the crime on the grounds that, but for the pastor’s sermon, the “hate crime” would not have been committed.

“Say it ain’t so, Joe…”

We would hope, as I’m sure you would, that such a thing would never happen. But, I’m sure the lacrosse players at Duke never thought politics would motivate the prosecutorial arm of the state. I’m sure the  <http://www.frc.org/get.cfm?i=AL07G01> “Philadelphia 11” who were charged with hate crimes under Philadelphia’s hate crimes law when leafleting at a gay pride march never thought such could happen to them either. And certainly in other countries such laws have been the first step toward more onerous laws that do restrict speech on the subject.

You may say that would never happen, but we must keep in mind that freedom of speech, while protected, has never been considered absolute. You cannot “yell fire in a crowded theater,” and you cannot commit libel or slander, though words and speech are at the core of those civil offenses.

In our opinion, a healthy skepticism of the “power of the sword” is always in order. The Tennessee Waltz FBI sting has surely taught us that not all who hold the power of government at their disposal wield it with the benevolence of Plato’s benevolent philosopher kings.

The best way to make sure such a thing never happens is not to pass the law in the first place.

Matters of the heart…

But this is not the only concern we have with the bill. Not until these recent years of political correctness has the law EVER punished someone on the basis of motive. Intentional acts are rightly punished more harshly (as with pre-meditate murder vs. negligent homicide), but it is the intentionality of the act, not the motive behind the intention, that is punished.

For example, the law has never cared why you murdered your neighbor, just whether you did it intentionally or did so recklessly or negligently. Punishment has always been based on conduct and actions, not attitudes.

In our view, Man has jurisdiction only over conduct and action; God alone has jurisdiction over the heart and rightly so, for who can see a man’s heart to judge it? But a person’s conduct we can all observe. In this regard I think of the man who came to Jesus complaining that his brother was not dividing the inheritance rightly <http://www.blueletterbible.org/kjv/Luk/Luk012.html#13> . Jesus did not address the "civil" conduct - saying that was matter for civil judges - but instead addressed the man's greed - the issue of the heart.

Where’s Thomas Jefferson when you need him?

Thomas Jefferson, no right wing fundamentalist by any stretch of today’s imagination, said:

To suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy… because he being of course the judge of that tendency, will make his opinions the rule of judgment; … it is time enough for the rightful purposes of civil government, for its offices to interfere when principles break out into overt acts gains peace and good order. An Act for Establishing Religious Freedom (passed in Virginia, 1786)

So, all those who clamor for Jefferson’s Wall of Separation, follow his lead here, and let’s leave “matters of the heart” up to God. It is enough that we address the actions that flow from it.

Unequal Justice under the eyes – Is Lady Justice peaking under her blindfold?

Further, in my opinion, the lawcreates an injustice by treating people who commit the same act differently and denies equal justice to the victims. For example, if Joe gets angry and murders Mike because he started dating Joe’s ex-girlfriend and another person down the street murders his neighbor, in the same way, but does so because the neighbor is a practicing homosexual, then the two criminals are treated differently (punished differently) though they committed the very same act and caused the exact same injury. That is an injustice to the second criminal who is treated more harshly. But, further and perhaps more importantly, it is an injustice to the first victim who, inessence, is told by the law that the same act and same injury is not as deserving of punishment.

In conclusion, this is an important bill and, to the extent that it has the potential to restrict the voice or even chill the voice (“chilling” usually being a concern of those who share Representative Cohen’s normal view of speech”) on matters affecting human sexual behavior and family, it is important that we address it. It is important that you address it.

It is our understanding that Senator Corker does not intend to vote for the bill. But, it is our understanding that Senator Alexander, who voted for a version of the bill a couple of years ago, has made no similar commitment. I am sure he would value knowing what his fellow Tennesseans think about the direction of this bill.  Click here to contact Senator Alexander’s office.