The conscience criminalized...

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Woe to those who enact evil statutes And to those who constantly record unjust decisions, So as to deprive the needy of justice And rob the poor of My people of their rights, So that widows may be their spoil And that they may plunder the orphans.

Now what will you do in the day of punishment, And in the devastation which will come from afar? To whom will you flee for help? And where will you leave your wealth? Nothing remains but to crouch among the captives Or fall among the slain. In spite of all this, His anger does not turn away And His hand is still stretched out. (Isaiah 10:1-4)

(Tim: This by Brian Bailey, an attorney and elder here at Church of the Good Shepherd) On October 28, 2009, President Barack Obama signed into law the

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Congress tacked

the hate crimes act onto the tail end of an already 646-page, $686 billion Department

of Defense bill.[1]

A hate crimes racket?

What is a federal

hate crime? “[W]hoever, whether or not acting under color of law, in any

circumstance described in subparagraph (B) or paragraph (3), willfully causes

bodily injury to any person or, through the use of fire, a firearm, a dangerous

weapon, 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”

commits a federal hate crime.

We can breathe a sigh of relief. We don’t plan to cause

homosexuals or cross-dressers “bodily injury,” and thus the statute could not

possibly apply to us. But . . . why this nagging doubt about the reach of the

hate crime act?

First, we know that laws are often manipulated and perverted to

serve ends that the lawmaker never foresaw much less intended. Take, for

example, the federal law called Racketeer Influenced Corrupt Organizations Act,

or RICO for short. RICO was designed to target the Mafia, including the

godfather who oversees a criminal enterprise but is insulated from criminal

prosecution by layers of henchmen who do his tacit bidding. RICO has both

criminal penalties and civil remedies. Criminal penalties allow a prosecutor to

seek a criminal conviction against a mobster; civil remedies allow a person

individually harmed by the mobster (such as a hotdog vendor who’s been paying

protection money) to seek financial restitution. Jeff Grell, a pioneering RICO

litigator, law professor, and a man The

New York Times calls when it has RICO

questions, reports that RICO is rarely used these days against the Mafia. In a

brief history of RICO’s shifting targets, Grell concludes that today RICO is

used to bag different prey:

In 1970, Congress passed the

Racketeer Influenced and Corrupt Organizations (RICO) Act . . . . At the time,

Congress’ goal was to eliminate the ill-affects of organized crime on the

nation’s economy. To put it bluntly, RICO was intended to destroy the Mafia.

Throughout the 1970’s, RICO’s

intended purpose and its actual use ran parallel to each other. Seldom was RICO

used outside of the context of the Mafia, and it is not an overstatement to say

that civil claims under RICO were simply not brought.

. . . .

RICO’s broad application was the

result of Congress’ inclusion of mail and wire fraud as two crimes upon which a

RICO claim could be brought. Given the breadth of activities that had

historically been criminally prosecuted under the mail and wire fraud statutes,

it was not difficult for creative civil

attorneys to depict practically any wrongdoing as mail or wire fraud.

. . . .

Today, RICO is almost never applied to the Mafia. Instead, it is

applied to individuals, businesses, political protest groups, and terrorist

organizations. In short, a RICO claim can arise in almost any context.[2]

One of those new contexts was abortion protesting. RICO’s

muzzle was re-directed from real-life Don Corleones, men who orchestrate the

shedding of blood, to men like Joe Scheidler who oppose the orchestrated

shedding of blood. Using RICO, beginning in 1988, the National Organization for

Women plunged Scheidler and other anti-abortion protestors into a litigation

hellhole for the next eighteen years.[3]

To make matters worse, the Justice Department, once Clinton was elected, filed a

friend-of-the-court brief with the U.S. Supreme Court in support of NOW’s suit.[4]

Eventually, after three separate trips up and down the U.S. Supreme Court,

Scheidler and others were vindicated.

Another source of our nagging doubt is the increasing

systemic cultural pressure applied to the Christian to shut his mouth—not about

his values or his beliefs or his faith or his God even. Those are permissible

personal perspectives. No, Christians are drilled in the classroom (campus

speech codes), the boardroom (diversity training), the courtroom (morality

can’t be legislated), the hospital room (repeal of conscience protections), and

the living room (via the television minder) to shut up about Truth. Are we

really supposed to believe that the hate crimes act has nothing to do with this

trend?

The U.S. Attorney

General has testified before the Senate that this law will “not necessarily

cover” a homosexual’s attack on a “minister who quotes the Koran and the Scripture

and says, ‘Homosexual activities are immoral.’”[5]

He takes this position even though “actual or perceived religion” is as much a protected

category in the hate crimes act as “sexual orientation.” Some categories, it

seems, are more categorical than others.

The Obama

Administration’s assurances: careful ambiguity or careless imprecision?

While

the Attorney General warned Christians that they would not receive the benefit

of any protection in the law, he tried to lay to rest suspicions that the law

criminalized Christian speech. The following paragraph appeared on page 9 of 11

of his written testimony in a throw-away section about evidentiary rules:

Some have expressed concern that this bill could possibly

infringe on First Amendment rights. The Department has studied the bill and we

are confident that nothing in it would criminalize any expressive conduct or

association. Section 249 could be used only to investigate or prosecute

discriminatory acts of violence causing bodily injury (or attempts to commit

such violent acts) and thus could never be used to investigate or prosecute mere association or expressions of beliefs,

no matter how offensive those beliefs might be. Simply put, bias motivated violence

is not protected speech.[6]

In response to one of the softball questions from Senator Patrick

Leahy, Attorney General Holder answered that the hate crimes act would “hold

people accountable for conduct not for speech.”[7]

We’re assured

that the hate crimes act targets conduct, not speech. It proscribes discriminatory

acts of violence, not mere association or expression of beliefs. Causing bodily

injury is a violent act after all, isn’t

it?

In Torts (i.e.,

personal injury law), first-year law students are taught that deciding what

event or events “caused” an injury may involve a policy decision. (Quick, how many times does the word “policy”

appear in Scripture? And how many times have you heard NPR laud a politician as

a “justice wonk”?) Is it really a stretch to think that the present or a future

administration would direct the hate crimes muzzle toward the Christian pastor

who preaches faithfully against sexual immorality, genderbending, or sodomy?

Yet, almost

inevitably, some evangelical Christians (like Dr. Joel Hunter, an Orlando

senior pastor who serves on the Board of Directors of the National Association

of Evangelicals) will endorse unjust laws like this one.[8]

Is this mere naiveté? Is it the self-seeking of a courtier eager to win Leviathan’s

friendship?

Knowing with God

As I examine

myself and having observed fellow Christians—especially professional types—over

the past ten years, I see the problem as more widespread and much deeper. Joseph

Sobran once observed that there’s nothing a coward hates more than any display

of courage. To avoid giving any offense to PC police, laws like this serve as a

useful justification to hold our tongues and trim the Truth. They may also be

used to gag those faithful Christians whose shining and salty examples of courage are a sharp rebuke to our cowardice.

The attack goes

deeper (or higher) still. An old legal maxim (still found in the latest edition

of Black’s Law Dictionary) says that

the word “conscience” comes from the Latin words “con” and “scio,” to know with

God. Any attack on the Christian conscience is a direct assault on the God who made

and informs that conscience and requires of His children love of neighbor, the

kind of love that warns the sinner to flee the wrath to come, that wounds with

clarion calls to repentance and faith, and refuses to heal superficially. Is

there a modern Gamaliel who will warn our lawmakers that they are fighting

against God when they attempt to silence the Christian conscience? Better yet,

is there a Peter who will confess:

We must obey God

rather than men. The God of our fathers raised up Jesus, whom you had put to

death by hanging Him on a cross. He is the one whom God exalted to His right

hand as a Prince and a Savior, to grant repentance to Israel, and forgiveness

of sins. And we are witnesses of these things; and so is the Holy Spirit, whom

God has given to those who obey Him. (Acts 5:29-32.)


[1] Public Law

111-84 (Oct. 28, 2009), (last visited Jan. 23, 2010).

[2] Jeff Grell  (last visited Dec.

5, 2009) (emphasis added).

[4] Pro-life

Action League, NOW v. Scheidler

(last visited Dec. 5, 2009).

[5] Testimony of U.S. Attorney General Eric

Holder before the Senate Judiciary Committee (June 25, 2009), available here 

(58:48 on Webcast) (last visited Nov. 29, 2009) [hereinafter “Holder Webcast

Testimony”].

[6] Department

of Justice, Statement of Eric H. Holder, Jr., Before the Committee on the

Judiciary, United States Senate, at a Hearing Entitled The Matthew Shepard Hate

Crimes Prevention Act of 2009, available here

(June 25, 2009) (emphasis added) (last visited Nov. 29, 2009).

[7] Holder

Webcast Testimony, supra note 5,

41:53.

[8] Paige

Winfield, Christian Groups Eye Hate

Crimes Bill, Christianity Today Magazine (July 16, 2009), (last visited Jan. 23, 2010).