[EDITOR’S NOTE: The following article was written by A.P. staff writer Matt Vega, who received his doctorate from Yale University Law School.]
On October 28, 2009, President Obama signed the Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act. Senator Harry Reid quietly slipped the bill into the defense authorization bill to avoid any debate in the Senate on the merits of the bill. It was named after Matthew Shepard, a Wyoming student practicing homosexuality who was beaten to death in 1998, and James Byrd, Jr., a black man dragged to death in Texas the same year.
As Christians, we should be sickened by the knowledge that people are so full of deeply seated hatred that these sorts of crimes still happen today. It is impossible to use Christianity to justify bombing abortion clinics or attacking two men on the street holding hands. As the apostle Paul reminded the church in Galatia: “For all the law is fulfilled in one word, even in this: ‘You shall love your neighbor as yourself’” (Galatians 5:14; cf. John 13:34). The New Testament does not condone such improperly motivated acts of violence—even in opposition to sexual sins. For example, Jesus saved a woman caught in adultery from stoning by pointing out the improper conduct of her accusers (John 8:1-11). Jesus did not excuse the woman’s actions, but instead called her iniquity “sin.” He told her to “go, and sin no more” (vs. 11). On the other hand, Jesus did not condone the crowd’s actions either. There is no evidence the people had followed the procedural safeguards under ecclesiastical law, or that the woman’s accusers had satisfied the strict burden of proof required for capital crimes. By all accounts, this was just an unruly mob. The mob was likely just using this woman to trap Jesus, or they may have been guilty of the very same sin of adultery (Miller, 2004, 24:97-103). Alternatively, the entire mob may have been guilty of unfairly singling the woman out when the old law plainly required that both the man and the woman be executed (Deuteronomy 22:22).
Therefore, Jesus rebuked the crowd with these words: “He who is without sin among you, let him throw a stone at her first” (John 8:7). The illicit nature of their conduct is perhaps best evidenced by the fact that the guilt-ridden mob dispersed one by one in response to Jesus’ words (vs. 9). In the end, since there were no accusers, the woman could not be condemned. Under Mosaic Law, a person could not be sentenced to death unless his or her offense was confirmed by the testimony of at least two witnesses (Deuteronomy 19:15). Thus, Jesus uttered those famous words, “Woman, where are those accusers of yours? Has no one condemned you?” When she confirmed no one was left, Jesus told her, “Neither do I condemn you; go and sin no more” (vs. 11).
Despite the foregoing, whether Christians should engage in hate crimes is very different from the question of whether Christians should support the new hate crimes law. Christians must prayerfully exercise discernment (Hebrews 5:14; Philippians 1:9-10) to determine how God wants us to respond to this new statute. The answer depends first on whether the law is valid, and second on whether it is moral. However, some laws that appear on their face to be both valid and moral, are not necessarily morally neutral when applied. This raises a third question of whether the new hate crimes law is potentially an anti-Christian law. To the extent the law is not morally neutral, we must make sure the law does not compel us to disobey God. Each of these important questions is discussed in the context of the new hate crimes law more fully below.
Is the New Hate Crimes Law Legal?
The 1969 Federal Hate Crimes Law permits the federal prosecution of anyone who “willingly injures, intimidates or interferes with another person, or attempts to do so, by force because of the other person’s race, color, religion or national origin” (“Title 18...”). Similarly, the 1994 Violent Crime Control and Law Enforcement Act required the U.S. Sentencing Commission to increase the penalties for hate crimes committed because of these protected characteristics of the victim as well as his or her ethnicity or sex (Violent Crime...).
The new Hate Crimes Prevention Act (HCPA) expands the definition of federal hate crimes to specifically include those committed based on the victim’s sexual orientation, gender identity (e.g., transsexualism), or disability. It also makes it a federal crime to attack U.S. military personnel because of their service. The Act does away with an earlier provision that limited the law to cases in which the victim was attempting to engage in one of six types of federally protected activities. Finally, the new law allows the U.S. Department of Justice to assist in the prosecution of these particular hate crimes.
In 1992, the Supreme Court held in R.A.V. v. City of St. Paul that some hate crimes laws violate the First Amendment right to free speech. The Court concluded that statutes which criminalize bias-motivated speech or symbolic speech violate the First Amendment; therefore, most cross-burning statutes or statutes criminalizing verbal intimidation have been deemed unconstitutional. However, in Wisconsin v. Mitchell the Supreme Court upheld a Wisconsin statute which provides for an enhanced sentence where the defendant “intentionally selects the person against whom the crime [is committed] because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person” (1993). The HCPA most likely falls within this second permitted category of hate crime law.
Nevertheless, critics of the HCPA claim it creates a double standard. They argue traditional laws already make it illegal to assault someone, and already take general malice into account. Therefore, there is no need to impose still further penalties on acts of violence motivated by enmity or animus against certain protected classes. Moreover, the Fourteenth Amendment to the U.S. Constitution guarantees that no class of individuals should be treated any differently under the law. Therefore, opponents argue the new law fails to provide equal protection of the law. However, the Supreme Court has yet to so hold.
Opponents of the HCPA also argue that the federal law circumvents constitutional safeguards against federalism and double jeopardy. Only 31 states currently include bias against a person because of his or her sexual orientation within their state law definition of a hate crime. Critics argue the federal government should leave this determination up to the states. They argue the bill would allow people who have been found innocent of a hate crime in state court to be re-prosecuted in federal court. They also see the federal law as a way for the U.S. Justice Department to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. Until it is ruled unconstitutional, however, Christians should operate under the assumption that the HCPA is still good law.
Is the New Hate Crimes Law Moral?
The new crimes law does not require anyone to do anything immoral. On the contrary, the HCPA is intended to discourage acts of hatred. As Christians we should obey the laws of the land even if we disagree with them (Romans 13:1-2)—unless doing so would require us to disobey God (Acts 5:27-29). The notion that the penalty for a crime ought to be increased based on the perpetrator’s motivation is not a new idea. In fact, it is a very old, even biblical idea. In the Old Testament, the penalty for killing a human being was greater when it was done out “of hatred” (Numbers 35:20). Thus, there is no moral impetus for violating the HCPA.
However, this does not mean the HCPA is necessarily moral. One potential problem with the new hate crimes law is that it elevates certain sexual sins to the status of a federally protected characteristic. The only characteristics previously protected by any federal law included a person’s race, color, age, sex, national origin, disability, religion, veteran status, or marital status. The HCPA, however, would extend protection to homosexuality and transsexualism and enshrine them as moral equivalents to race, religion, and the other protected categories. This expansion is legally and morally difficult to justify. First, there is no credible evidence that homosexuality is an immutable characteristic like race, color, age, sex, and national origin. The American Psychological Association has stated: “Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors” (Answers to..., 2008, p. 2). In addition, the HCPA’s definition of “sexual orientation” is not limited to immutable characteristics because it includes the status of being, or the perception of being heterosexual, homosexual, or bisexual.
Further, those that engage in deviant sexual behavior generally refuse to equate it with a physical or mental disability. In 1973, the Board of Trustees of the American Psychiatric Association (APA) removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders (DSM) after reviewing evidence that it was not a mental disorder (Psychiatric Treatment and..., 1998). In 1987, ego-dystonic homosexuality was not included in the revised third edition of DSM (DSM-II-R) after a similar review (Psychiatric Treatment and...).
There is also no comparison between the practice of homosexuality and the practice of religion in terms of their respective contributions to law and society. Finally, transsexuals and homosexuals do not merit the same status given to veterans, or to marriage between a man and a woman. The military is necessary to the defense of our country. Marriage is a procreative partnership and the foundation of the family. While the military and marriage both fulfill essential roles in our society, homosexuals and transvestites are merely fulfilling their own selfish, unnatural lusts of the flesh. As J. Budziszewski put it, “Sodomy cannot ground families; it is sterile in every sense of the term” (2003, p. 205, emp. added).
Is the New Hate Crimes Law Anti-Christian?
The new law is intended only to apply to violent acts based on bias. For example, it does not make it illegal to preach against homosexuality. The U.S. law does not go as far as laws in the EU and Canada that censor speech deemed mean-spirited or bigoted by societal standards. If, however, the speaker later commits a violent crime, then the HCPA may allow evidence of the accused’s statements to be taken into consideration in determining the appropriate sentence.
The HCPA is also not supposed to allow a person to be prosecuted on the basis of his or her beliefs. If, however, a person commits a violent crime against a homosexual, the fact that he or she is an active member of a group (or church) that publicly opposes homosexuality may be used against him or her in a court of law. Section 7 of the law merely states that the wrongful act must be “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person” (emp. added). Thus, the accused’s beliefs, even sincerely held religious beliefs, could theoretically be used to justify a more severe punishment if the accused is found guilty.
Whether intentional on the part of Congress or not, the HCPA may have a chilling effect on what is preached in the pulpit. However, gospel preachers should boldly continue to proclaim what God has said about all forms of sexual sin. As long as we do not live hypocritical lives, and do evil ourselves, we have nothing to fear from this law (Romans 13:3-4). That said, this law will likely have long-term cultural implications, gradually eroding the religious freedom to oppose homosexuality and other sins on moral and religious grounds.
Many sins other than homosexuality led to the passage of the HCPA. The Act is a direct consequence of all the sins that have given rise to hate crimes, including anger, malice, hostility, quarreling, and hypocrisy. The new law was apparently deemed necessary by our government because of a few misguided individuals engaged in drunkenness and other foolish behavior. Some of them even distorted Christian teachings against homosexuality into a license, not only to commit the most savage sins imaginable, but to ignore the New Testament command to “be at peace with all men” to the extent possible (Romans 12:18; Hebrews 12:14). Therefore, elders and preachers need to make sure that these sins are equally condemned from the pulpit alongside homosexuality.
Unfortunately, hate crimes will continue to be used to fuel the growing culture of moral relativism in this country. It is getting harder and harder to find an example of conduct that society agrees is always wrong. In addition to tolerating homosexuality, our society no longer condemns the adulteress, philanderer, or even the pedophile in all cases. As G.K. Chesterton remarked: “The modern world is insane, not so much because it admits the abnormal, as because it cannot recover the normal” (1922, p. 25). Although popular opinion does not make wicked conduct right, it can make it legal. Yet, God’s opinion on these matters has not changed, and faithful Christians must take His message, in a peaceful manner, to the public square. The New Testament message in this regard is two-fold. First, all forms of sexual immorality, including homosexuality, are sin (Romans 1:26; 1 Corinthians 6:9-11; Galatians 5:19-21; Ephesians 5:3-5; 1 Timothy 1:9-10; Jude 7). Second, any sin, even homosexuality, can be forgiven—if the individual is willing to obey the Gospel (believe, repent, confess, be baptized—Acts 2:38; Romans 10:9; 1 John 1:9).
Answers to Your Questions for a Better Understanding of Sexual Orientation & Homosexuality (2008), American Psychological Association, [On-line], URL: http://www.apa.org/topics/sexuality/sorientation.pdf.
Budziszewski, J. (2003), What We Can’t Not Know: A Guide (Dallas, TX: Spence).
Chesterton, G.K (1922), Eugenics and Other Evils (New York: Cassell), [On-line], URL: http://books.google.com/books?id=pogJaU68oscC&printsec= frontcover&dq=Eugenics+and+Other+Evils&cd=1#v=onepage& amp;q=&f=false.
Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (2009), [On-line], URL: http://en.wikipedia.org/wiki/ Matthew_Shepard_and_James_Byrd,_Jr._Hate_Crimes_Prevention_Act.
Miller, Dave (2004), “Situation Ethics—Extended Version,” Reason & Revelation, 24:97-103, November, [On-line], URL: http://www.apologeticspress.org/articles/2643.
Psychiatric Treatment and Sexual Orientation Position Statement (1998), American Psychiatric Association, [On-line], URL: http://www.psych.org/Departments/EDU/Library/APAOfficialDocumentsandRelated/ PositionStatements/199820.aspx.
R.A.V. v. City of St. Paul (1992), 505 U.S. 377 (1992).
“Title 18, Part I, Chapter 13, § 245, Federally Protected Activities” (1969), [On-line], URL: http://www.law.cornell.edu/uscode/18/245.html.
Violent Crime Control and Law Enforcement Act of 1994 (1994), [On-line], URL: http://www.ncjrs.gov/txtfiles/billfs.txt.
Wisconsin v. Mitchell (1993), 508 U.S. 476 (1993).