Law at the Jesus Creed: David Opderbeck

Last updated on: December 23, 2009 at 5:44 am by Scot McKnight

Law at the Jesus Creed: David Opderbeck 2009-12-23T05:44:56-06:00 Scot McKnight

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David Opderbeck, one of our vigorous and steady commenters, is doing a series for us on law. This one is on hate crimes and thought crimes in the context of religious freedom. A most timely topic… And by the way, if you are in the New Orleans area, David will be presenting at this Christian law conference.

Law: Hate Crimes, Thought Crimes, and Religious Freedom

On October 28, 2009, President Obama signed into law the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. This legislation was vigorously opposed by the religious right and other political conservatives. Here is how an article on the Concerned Women for America website portrayed the issue:

All totalitarian countries employ “thought crime” laws that criminalize the conscience. Now, under “hate crime” laws that include “sexual orientation,” even Western nations with long traditions of freedom, such as the United States, Canada, New Zealand, the United Kingdom and Sweden, are experiencing more and more challenges to basic freedoms. “Hate crime” laws are a key part of a long-term strategy by homosexual activists to use “sexual orientation”-based policies and laws to suppress dissent, radically redefine marriage and, ultimately, to criminalize Biblical morality.

The Family Research Council’s website played on a similar theme:

We oppose all Thought Crime laws in principle, because penalizing people specifically for their thoughts, beliefs, or attitudes–even ones abhorrent to us and to the vast majority of Americans, such as racism–would undermine the freedom of speech and thought at the heart of our democracy.

Are “hate crimes” laws a prelude to government “thought control?” Should Christians oppose “hate crimes” laws that apply to crimes based on animus against homosexuals?

One of the things that irked me most about the recently
announced Manhattan Declaration
was its somewhat oblique reference to this question of “thought crimes.” It appears here:

Because we honor
justice and the common good, we will not comply with any edict that purports to
compel our institutions to participate in abortions, embryo-destructive
research, assisted suicide and euthanasia, or any other anti-life act; nor will
we bend to any rule purporting to force us to bless immoral sexual
partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality
and immorality and marriage and the family.

(Emphasis added.)
I agree with the notion that religious institutions should be free,
within limits, to operate according to their own moral principles. I use the qualifier “within limits” here
because the “moral” principles of some religious groups are incompatible with
democratic civil society. We would
not, for example, permit religious jihadist groups to operate unencumbered, nor
would we tolerate spousal or child abuse even if it is the norm within some
religious communities. But surely
a religiously-affiliated health care entity should not be compelled to
participate in abortions, nor should churches that hold to traditional marriage
be forced to solemnize gay unions.

I also agree that religious institutions must remain free to
proclaim what they believe to be the truth about moral issues, including about
marriage and sexuality, even if some people find the message distasteful. This is a basic freedom enshrined in
the first amendment.

In my judgment, however, the alarmist rhetoric about
“thought crimes” is extremely misleading. It is, of course, already illegal to commit a violent crime
against anyone, homosexual or not.
The Shepard Act merely increased existing penalties for violent crimes
motivated by animus against homosexuals and other minority groups. According to CWA and the FRC – and
apparently according to the Manhattan Declaration – increasing an existing
criminal penalty based on state of mind is a prelude to governmental “thought
control,” including, perhaps, the outlawing of Christian belief.

The truth is that it is not at all unusual or for the law to
impose different penalties depending on a person’s state of mind. Indeed, the very foundations of Western
criminal law rest on determining internal states of mind: actus
rea, or the intent to act, and mens
rea, literally having a “guilty mind.” Generally, there is no criminal liability if only actus rea can be proven; the state must
also prove mens rea, a mental state that
renders the action criminal.

Murder, for example, as every first-year law student learns,
traditionally is defined as “the intentional killing a human being with ‘malice aforethought.'” “Intent” and “malice
aforethought” are states of mind.
It is not always a crime to intend to kill another person. Police officers acting in the line of
duty or ordinary people acting in self defense typically lack the mens rea required for murder. The fact that the government (through
the prosecutor’s office) must probe the killer’s state of mind in order to
prove its case doesn’t make the prohibition of murder some kind of black
helicopter “thought control” law.

I could give hundreds of other examples in which state of
mind is relevant either to the elements of a crime or civil claim or to the
penalty or damages to be imposed.
Indeed, it’s fair to say that both the criminal and civil law routinely address a party’s mental
state. To suggest that hate crimes
legislation is unique in this regard is false.

What is truly unfortunate about the religious rights’
response to the Shepard Act, in my judgment, is that a sea of alarmism and
misrepresentation drowned out the legitimate concerns and witness of Christians
who hold to traditional Biblical teachings about marriage. The only religious leader to testify
before the Senate
Judiciary Committee in favor
of the Shepard Act was Mark Achtemeier,
a Presbyterian minister who teaches theology at Dubuque Seminary. Unfortunately, Achtemeier has become a
lightning rod in the PCUSA because he has migrated from a traditional Biblical
view of marriage to a revisionist view that would consider certain kinds of
same-sex unions Biblically appropriate.
This is particularly troubling because Acthemeier could otherwise be
considered a moderate or “third way” evangelical (his book
on scripture in my opinion is an excellent example of a “third way”
effort). What if the primary
evangelical voice had been a truly moderate one, which affirmed traditional Biblical
sexuality but also supported the Shepard Act?

The Shepard Act controversy seems to highlight the divide
that has beset the Protestant churches since the fundamentalist-modernist
controversy. The center never
seems to hold for very long.
Reactionary dishonesty or revisionist pablum seem to be the only
alternatives.

What do you
think? Is the conservative
rhetoric about “hate crimes” fair?
How can Christians address concerns about censorship in connection with
the issue of “hate crimes?” Can Christians
who hold to traditional Biblical sexual morality support “hate crimes” laws
that protect homosexuals?

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