The conscience criminalized...

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).


I can see creative attorneys describing stress at being called a "sodomite" a "bodily injury," especially as far too many psychologists and psychiatrists claim that most mental illness is a chemical imbalance.

And funny, I thought we already had laws against "causing bodily injury." Something called "assault," "attempted murder," and such.

I'm reading the third book in the C.S. Lewis space trilogy: That Hideous Strength. One of the characters on the dark side (Wither) tells his subordinate (Steele) this:

"My dear young friend, the golden rule is very simple. There are only two errors which would be fatal to one placed in the peculiar situation which certain parts of your previous conduct have unfortunately created for you. One the one hand, anything like a lack of initiative or enterprise would be disastrous. On the other, the slightest approach to unauthorised action - anything which suggested you were assuming a liberty of decision which, in all the circumstances, is not really yours - might have consequences from which even I could not protect you. But as long as you keep quite clear of these two extremes, there is no reason (speaking unofficially) why you should not be perfectly safe."

It seems that the authors of the hate crimes bill were reading from the same hymn book as Wither! It's along the same lines as another quote attributed to Lewis: "They'll tell you that you may have your religion in private, and then they'll make sure you're never alone."

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