Erik Stanley

FactCheck.org recently posted an article that proposes to “answer” some questions about the impact of the Hate Crimes Bill, currently pending in the Senate as S.909...but perhaps they ought to check their facts.

The article summarily dismisses claims that the Hate Crimes Bill would muzzle pastors and churches and states, “In reality, there is nothing in the bill that says pastors must zip their lips rather than denounce homosexuality….” FactCheck points to the existence of the First Amendment and some “constitutional protection” language in the bill and concludes, “What the bill would not do is prohibit anyone’s pastor, rabbi or imam from speaking disapprovingly about homosexuality.”

The article misses the point entirely. As Scottish philosopher David Hume once said, “It is seldom that any liberty is lost all at once.” The fact that the Hate Crimes Bill does not specifically say that pastors may not speak biblical truth about homosexual behavior does not mean that it is not a threat to religious liberty. In fact, it is often the subtle erosion of religious liberty that poses the gravest threat. Like the proverbial frog in the pot of water, the Hate Crimes Bill serves to turn up the heat on pastors and churches. How? Glad you asked.

There is only one difference between an assault not classified as a hate crime and an assault that is classified as a hate crime: the beliefs of the individual committing the crime. A crime is a crime under criminal law regardless of the belief of the perpetrator. We gain nothing under criminal law by knowing what a particular defendant thought about a particular victim other than perhaps to inflame our sensitivities or satisfy our own morbid curiosity. Motive for the crime has never been a required element of any criminal prosecution. Criminal law has operated since the founding of this country (and indeed before) by punishing people for their acts regardless of the belief behind the act. For purposes of criminal justice, we as a people have always been more concerned with whether a person committed a crime and not why the person did so. The Hate Crimes Bill seeks to change that by making the beliefs of the criminal relevant and an element of the crime itself.

Behind a law that criminalizes the beliefs of a criminal defendant is a governmental disapproval of those beliefs. If society punishes a crime more severely solely because of the beliefs of the defendant at the time the crime was committed, then a message is being sent that society disapproves of those beliefs and that they merit enhanced punishment. Therein lies the concern for those who oppose the Hate Crimes Bill. It would be the first time that the federal government has formally written into law a potentially punitive disapproval of the belief that homosexual behavior is bad, wrong, problematic, or even simply not normal.

If, as Thomas Jefferson said, “Eternal vigilance is the price of liberty,” then we must be vigilant when government, in any way, seeks to demonstrate disapproval of a sincerely-held religious belief. A recent Pew Forum poll found that a majority of Americans believe engaging in homosexual behavior is a sin. The Hate Crimes Bill suddenly stands as a statement that the law itself—not just some public official—does not agree with those sincerely held beliefs.

How long will it be before that disapproval of opposition to homosexual behavior is written into some other law? If Europe, Canada, and Australia are an example (and they are), then we do not have to wait long. Simply ask Pastor Ake Green from Sweden, who preached a biblically consistent sermon about homosexual behavior. He was charged with a hate crime, sentenced to jail time, and had to fight his way to the Swedish Supreme Court to have the conviction overturned.

Yet FactCheck says, “Hey, we have a First Amendment in this country that protects religious freedom, and the Hate Crimes Bill says it will not apply to constitutionally protected speech.” But that’s just the point: how long will it be before a pastor is called upon to testify in a criminal trial regarding what he preached about homosexual behavior? How long will it be before a church member is called upon to testify against a defendant in a criminal case concerning what the church believes about homosexual behavior? Not long if homosexual activist groups have their way. And once the first pastor or church member is called upon to testify in a criminal trial, that belief has now become an essential element of a crime. If beliefs that can result in a subpoena don’t produce a chill on speech, I don’t know what will.

We know that everywhere hate crimes laws have passed, hate speech convictions have followed. And why not? Once government has enshrined into the law a specific disapproval of a religious belief against homosexual behavior, it becomes easy to transfer that disapproval into other contexts.

The American journalist Walter Lippman stated, “The war for liberty never ends.” Those words are very true. It is far better to jump out of the pot when the water is tepid than to find ourselves on a dinner plate one day.


Erik Stanley

Erik Stanley is senior legal counsel, director of Church Project with Alliance Defending Freedom.