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Posts for July, 2014

ENDA Is Toast

Jim Burroway

July 9th, 2014

There’s really no other way to describe the current state of the Employment Non-Discrimination Act. Not that it was ever going to go anywhere in this Congress where the Republican Caucus in the GOP-led House had less than a zero percent chance of bringing it up for a vote after the Senate gave its rare bipartisan approval last November.

But ENDA has gotten even toastier lately, particularly after last month’s Supreme Court decision in the Hobby Lobby case. That decision, which was a statutory one rather than a question of constitutionality, held that privately or closely-held for-profit corporations could opt out of providing birth control as part of its health care plan under the Affordability Care Act (ACA) if doing so would violate their religious beliefs. While the majority opinion said that their opinion applied only to birth control and nothing else, it failed to provide a coherent “stopping principle” to show exactly which legal precepts would limit the decision to birth control in the future. Most tellingly, Justice Samuel Alito, writing for the majority, did provide an example of how race protections would remain in force, but declined to show how any anti-discrimination protections based on sexual orientation or gender identity would survive.

The fact that the Hobby Lobby decision was a statutory rather than a constitutional one is critical. Hobby Lobby argued that there was a conflict between the ACA and the Religious Freedom Restoration Act (RFRA). In hindsight, if the ACA had included a specific clause exempting it from the RFRA, there would not have been a case to take before the Supreme Court. But without such a clause, Hobby Lobby saw an opportunity.

So here’s the problem for ENDA. When the Supreme Court looks at conflicts between legislation brought by Congress, it looks at other laws to see how Congress viewed that legislation. In the Hobby Lobby case, the Supreme Court looked at how Congress treated other abortion and birth control measures, some of which included religious exemptions, and concluded that Congress had effectively expanded the RFRA to cover the ACA even though the ACA itself had no specific religious exemption.

ENDA, in its current form, would make the situation much worse than what happened to the ACA. In order to get jittery representatives to sign on to ENDA, supporters included a religious-exemption clause in Section 6:

SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

(a) In General.–This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)) (referred to in this section as a “religious employer”).

(b) Prohibition on Certain Government Actions.–A religious employer’s exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer’s participation in programs or activities sponsored by that Federal, State, or local agency. Nothing in this subsection shall be construed to invalidate any other Federal, State, or local law (including a regulation) that otherwise applies to a religious employer exempt under this section.

Because ENDA contains an explicit LGBT-only religious exemption, the Supreme Court could, in following the Hobby Lobby precedent, look at that exemption in ENDA and conclude that Congress had effectively expanded the RFRA to cover a whole host of LGBT-rights regulations that have come about since the demise of Section 3 of the Defense of Marriage Act, including health care, hospital visitations, spousal benefits, and so forth. The possibilities for unintended consequences are enormous.

Arizona’s so-called “religious freedom” bill that Gov. Jan Brewer (R) vetoed last February focused attention on religious exemptions generally, including those in ENDA. But it wasn’t until the Supreme Court’s method for interpreting the RFRA in the Hobby Lobby case showed the unintended consequences of religious exemption clauses in unrelated legislation that LGBT organizations which had previously supported ENDA have now taken a second look.  Just yesterday, American Civil Liberties Union, Gay & Lesbian Advocates & Defenders (GLAD), Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center, have issued a joint statement announcing they were withdrawing their support for ENDA. The National Gay and Lesbian Task Force withdrew its support in a separate statement.

Their worry is not so much over ENDA itself — it was never  going to go anywhere in the House — but over a forthcoming executive order from President Obama that would extend anti-discrimination protections for sexual orientation and gender identity expression to federal contractors. The concern here is that the Obama administration may lift the language of the religious exemption clause from ENDA and graft it into his executive order, and thereby effectively eviscerate the order’s effectiveness for large numbers of LGBT people.

What Does the Hobby Lobby Decision Mean For LGBT People?

Jim Burroway

June 30th, 2014

Today, the United States Supreme Court ruled that Hobby Lobby and other closely held corporations and family-owned businesses may not be compelled under the Affordable Care Act (ACA) to provide contraception coverage as part of their employees’ health plan if doing so would violate the company’s sincerely-held religious beliefs under the Religious Freedom Restoration Act (RFRA). I can sort of understand how a family that owns a family-owned business can hold strong religious beliefs, but I’m still unclear how that applies to public corporations, not matter how closely owned it may be. (Did Hobby Lobby’s corporate charter have to undergo baptism by immersion, or would sprinkling do?) But at any rate, that is now the law of the land, and it has LGBT-rights advocates on edge because it may be an opening toward allowing companies to deny spousal benefits to same-sex couples, whether it is health benefits, medical leave, etc. It will probably take several more lawsuits and several more rulings before we have a clearer picture of how broad or narrow this ruling will actually turn out to be. Writing for the majority, Justice Samuel Alito tried to cage the ruling this way (PDF: 512KB/95 pages):

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

The federal government has expressed its compelling interest in prohibiting racial discrimination through the Civil Rights Act of 1964 and several other laws promulgated by Congress and regulations by the Executive branch. Some states have anti-discrimination laws that cover sexual orientation, and a subset of those also cover gender identity. Those laws may provide some protections at the state level since the RFRA applies only to federal law, but it remains an inconsistent patchwork that varies state to state. Meanwhile, Congress has long failed to pass the Employment Non-Discrimination Act and prior anti-discrimination proposals dating back to the 1970s. In fact, several LGBT-rights organizations are now dropping their support for ENDA because it would provide broad religious-based exemptions similar to the Arizona “Religious Freedom” bill that Gov. Jan Brewer vetoed this year. So since the federal government has not identified discrimination on the basis of sexual orientation or gender identity as a compelling interest, it would seem to me that LGBT people will be made particularly vulnerable because of this decision. The principle dissent, written by Justice Ruth Bader Ginsburg, agrees:

Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc ., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn.1985) (born-again Christians who owned closely held, for profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”?

There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear, has ventured into a minefield by its immoderate reading of RFRA.

I think it’s noteworthy that Alito addressed the first objection in Ginsburg’s dissent concerning racial discrimination, but not the other examples. SCOTUSblog noticed that omission as well:

With respect to implications for other kinds of religious-based discrimination, the Court writes that racial discrimination in hiring will not be permitted under RFRA because “The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive that critical goal.” Note that this leave open the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation.

The entirely bogus “religious convictions” objection

Timothy Kincaid

July 20th, 2011

One of the whiny complaints made by anti-gay activists about New York’s new marriage equality bill is that it is not sensitive to the religious convictions of public employees. The Catholic League’s Bill Donohue (who appears to waging a PR campaign to equal Catholicism with pigheaded bigotry) is all wounded and martyry about it in a commentary today:

Indeed, under New York State law, the onus is on the employer to show that it would cause “undue hardship” if an employee were to exercise his “sincerely held” religious beliefs.

Now it is fatuous to say that it would cause an “undue hardship” in the workplace if clerks, and deputy clerks, who do not have an issue with giving marriage licenses to homosexuals handled these matters for those who do. It cannot be said too strongly: Bullying those who have religious objections is despicable.

There is an obvious hole in New York’s gay marriage law: religious exemptions need to be extended to lay people, not just the clergy.

Well, I’m all for respecting sincerely held religious beliefs. But I’m failing to find one here.

Sure there are people who sincerely believe that I should not marry a person of the same sex. And due to those beliefs, they would not attend my wedding, conduct the vows, offer a blessing, or even congratulate me. And I wouldn’t expect them to.

But while I’m familiar with the Bible and pretty up on how religion is practiced in America, I am unaware of any doctrine of any sect that forbids its followers to hand me a piece of paper . That’s what we’re talking about, issuing a form, typing responses in a database. And there are no doctrinal assessments I know of which assign responsibility or any presumption of participation – not even those of the Catholic Church – from the issuance or filing of forms.

Some Christians read in the verse portion from Habakkuk “woe to him who gives drink to his neighbors, pouring it from the wineskin till they are drunk…” a prohibition on working in a bar or liquor store. Some are even troubled at serving alcoholic beverages as a waitress or grocery clerk. But I’ve never heard even the most conservative of Christians argue that they have some obligation not to hand out the form to request a liquor license.

And it goes without saying that many churches, the Catholic Church in particular, oppose the very existence of medical clinics which offer abortion services. Yet they do not suggest that the County Building Inspector refuse to issue a building license or that the city Clerk refuse to process a Business License. None of this administrative process is considered to be a part of, or the administrators culpable for, the abortions that will be conducted at the site.

There simply are no religious beliefs held by any of these public employees, sincerely or otherwise, which forbid them to administer the paperwork involved with any other businesses, marriages, divorces, or other vital statistics which they find morally objectionable. And if there were, their argument is a bit specious considering that they’ve been violating those beliefs with regularity for years.

Now I have less of a problem with Rosemary Centi, the city clerk in upstate Guilderland, who resigned from her position as marriage officer out of her religious conviction that she should not conduct gay marriages. But she will continue to remain the elected town clerk and issue marriage licenses to all eligible applicants, including gay couples. While I think it a rather peculiar belief that allows you to officiate at marriage between divorcees or people of mixed faith but not gay people, I don’t doubt that her decision is sincere. And I have to respect that Rosemary was able to distinguish between her own personal involvement as officiant and the processing of paperwork.

And I think that this distinction is perfectly obvious to any who think about it.

Why is it that some people would rather quit their jobs than treat gay couples with the same bureaucratic procedure as anyone else standing in line at the clerk’s counter? What is behind the peculiar notion that a public employee can deny civil services to a member of the public if they don’t pass their personal religious test? It certainly isn’t Scripture or doctrine or consistent moral character.

So perhaps Bill Donohue should consider whether he’s doing his church a favor by making this a big deal. His efforts to make Catholics look like victims may result in making them look like something else entirely.

But ‘freedom of religion’ means that you have to give me taxpayer money!!

Timothy Kincaid

May 27th, 2011

The State of Illinois has changes the way in which it wants one of its programs to operate. One of their contractors doesn’t think that it can operate under the new rules, and so it is not going to apply for further contracts with the state. The policy change is that same-sex couples cannot be excluded from consideration by state-funded adoption agencies, and the contractor is the Rockford Diocese of the Catholic Church.

Yeah, they made good on their threat. And, of course, they are whining and moaning that their “moral stance” actually cost them anything. They seem to believe that when you claim that you are taking a moral stance, then everyone else should cater to you and make exceptions for you. (Beacon-News)

Officials from the Rockford Diocese, which includes Aurora, Kane County and much of Kendall County, said they were forced to terminate state contracts worth $7.5 million after lawmakers failed to pass an amendment exempting religious groups from provisions of the state’s new civil unions law. The law, which will let gay and lesbian couples form civil unions, a rough equivalent to marriage, takes effect on Wednesday.

“The law of our land has always guaranteed its people freedom of religion,” diocese spokeswoman Penny Wiegert said. “Denying this exemption to faith-based agencies leads one to believe that our lawmakers prefer laws that guarantee freedom from religion.”

Yes, they believe that it’s a matter of religious freedom. Of course, they also believe that the Pope should dictate civil policy to “Christian Europe”, so it’s a little difficult to take them seriously when they talk about “religious freedom.”

So now the other 40-odd private agencies (including two other religiously-based groups) will have to pick up the Catholic Church’s 15% of the burden. Or perhaps not even that much if the other three Catholic agencies decide that their faith doesn’t exactly compel them deny orphans a loving adoptive family.

About those “21 religious groups” and their chaplain letter…

Timothy Kincaid

May 25th, 2011

A news article has been circling about the response of “Leaders of 21 religious groups that provide chaplains to the U.S. military” to the tentative (and subsequently reversed) announcement that chaplains could exercise their religious beliefs in regards to same-sex marriage.

Chaplains and service members who believe gay marriage and homosexuality are immoral might fear reprisal if they express their views openly once the military’s lifts the “don’t ask, don’t tell” policy, said the retired chaplains, who sent a letter Monday to the chiefs of chaplains of the Navy, Army, and Air Force.

“This is already an assault and a challenge on individual conscience and some soldiers may think it’s forcing them to abandon their religious beliefs or being marginalized for holding to those beliefs,” said Douglas E. Lee, a retired Army brigadier general and chaplain, whose signature was the first on the letter.

Conservative Christian press expressed the letter in even more indignant terms. (Christian Post)

They want to ensure that chaplains and service members won’t be punished if they preach on or discuss homosexuality as a sin.

Considering that the temporarily announced policy was the result of questions from real chaplains about their own rights and abilities, I thought that I would review just what this letter said and who signed it.

Well, it turns out that the complaints really didn’t have to do with real fears by real chaplains. Rather, this is a document written by the Alliance Defense Fund complaining about how allowing chaplains to have religious freedom would hurt their own political campaigns against the rights and freedoms of gay Americans.

Of equally grave concern is the fact that chaplains are instructors of conscience. Chaplains have a tremendous moral responsibility to insure that when they preach, teach or counsel, they do so in accordance with their conscience and in harmony with the faith group by which they are endorsed. When guidance, however, is forthcoming from senior leadership that implies protected status for those who engage in homosexual behavior and normalizes same-sex unions in base chapels, any outside observer would conclude that both homosexuality and homosexual unions officiated as marriages in base chapels are normative. This creates an environment that is increasingly hostile to the many chaplains—and the service members they serve—whose faith groups and personal consciences recognize homosexual behavior as immoral and unsafe and do not permit same-sex unions.

In plain English: if military leadership treats same-sex unions like opposite-sex unions, then those who are anti-gay will no longer have official support for their doctrine. And those who seek to cultivate a culture of rejection and hostility towards gay people will be viewed askance once the military treats all people equally.

And in response they demand that all soldiers should not “be marginalized” for holding and espousing anti-gay views. They should be free to dole out homophobic slurs, to denounce fellow gay soldiers, to mock, berate, and demean gay people in general, provided that all of these behaviors are an expression of conscience based on their religious beliefs.

Which is, of course, nonsense. Anti-Semitism, anti-Catholic, or racist statements do not receive protection from marginalization even when an expression of conscience based on their religious beliefs. Why, then, should homophobes receive special treatment, special exceptions, that others do not receive?

And, as a matter of credibility, let’s review exactly to what extent this letter represents the faith community. Let’s look to see who did – and who did NOT – sign this letter.

As it turns out, the signatories are all from anti-gay denominations. Some, like the Southern Baptist Convention and the Lutheran Church – Missouri Synod are denominations of significant size and presence in the chaplaincy. But most of these “21 religious groups” are miniscule and filler designed to give the letter a greater representation than it deserves. And some, like the Anglican Church in North America, owe their entire existence, their very reason for being, to the anti-gay attitudes of a handful of malcontents who broke away from their religious affiliation solely because it rejected anti-gay animus.

Who is not there? No mainline or moderate denominations, and not even the reliably anti-gay Catholic Church (which sent a separate letter) or Mormon Church. No Jewish, Muslim, Buddhist, Wiccan, or other non-Christian affiliating bodies. This is not a broad spectrum of “religious groups that provide chaplains to the U.S. military.” It is simply a collection of far-right anti-gay denominations pretending to be so.

And this is not about chaplains being denied religious freedom. This is not about an assault and a challenge on individual conscience of conservative soldiers.

This is about one segment of Christendom seeking to impose its will over society, over the military, and especially over those segments of Christendom that do submit to their demands for ‘orthodoxy’. This letter is an assault on the civil and social freedoms of gay people and on the religious freedoms of gay-supportive people of faith.

Conservatives attack Navy policy, get it reversed

Timothy Kincaid

May 11th, 2011

A memo was made public on Monday that stated that same-sex marriages could be be conducted on Navy bases in states that allow such marriages and that chaplains who so wished could participate.

Predictably, social conservatives reacted with outrage.

Tony Perkins, president of the Family Research Council (identified as a hate group by the SPLC), tweeted

Hearing Navy chaplains are now being trained to perform same sex weddings following [Don't Ask Don't Tell (DADT)] changes. Major religious liberty implications.

And the politicians got all charged up as well (Christianity Today)

Rep. Todd Akin (R-Mo.) and 62 other Members of Congress also object to the new policy. They sent a letter to the Secretary of the Navy accusing the Navy of violating federal law.

“We find it difficult to understand how the military is somehow exempt from abiding by federal law. Not only does this document imply recognition and support of same-sex marriage in opposition to DOMA, it also implies that the Navy will now perform these marriages so long as they do not violate state statutes,” Akin wrote.

And so the Navy has today reversed the policy. But what is being carefully avoided by conservatives is how this came about and who is really impacted.

The policy memo was written by Navy Chief of Chaplains Rear Adm. Mark L. Tidd and was written to chaplains to answer questions that arose when those Navy chaplains were undergoing training as to what chaplains were allowed to do.

This reversal will have but minimal effect on gay couples. No, we will not be allowed to marry on base, but we can find another venue quite close by. The wedding will go on.

Who this really effects the most are military chaplains. This reversal tells them that they do not have the freedom to officiate at certain weddings. They cannot rely on the teachings of their own denomination or the guidance of their faith; instead politicians will dictate what are acceptable standards for sacraments.

So listen up, all you Methodists, Episcopalians, Presbyterians, Lutherans, Congregationalists, Disciples of Christ, American Baptists, Universalists, Reformed Jews, or any other religious denomination who either does support same-sex marriage or is deciding whether to do so: it’s time you wake up to the truth. This is an attack on you.

Tony Perkins and the rest who yell the loudest about religious liberties don’t want religious liberty at all. Or, at least, not for you. They want to dictate to you what is acceptable religious policy in this country. It’s time you get in this fight and realize that you are fighting as much for your own freedom as you are for ours.

The First Amendment Lives

Jim Burroway

March 2nd, 2011

That’s the 8-1 decision of the U.S. Supreme Court in the case of Snyder v Phelps (PDF: 248KB/36 pages), an appeal of a five million dollar judgment against the Fred Phelps and the Westboro Baptist Church. The court reversed a lower court decision in favor of the family of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq and whose funeral was picketed by the Phelps clan. The protests included signs with the statements “Thank God for Dead Soldiers” and “Fags Doom Nations.” The Phelps clan regularly protests military funerals to push their message that God hates the U.S. because we’re not executing homosexuals as Leviticus commands.

According to the majority opinion written by Chief Justice John Roberts, Westboro followed all of the legal restrictions imposed on the group, and by noting them, the court appears to have reaffirmed its approval of those restrictions:

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

…Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

Roberts warned that “our holding today is narrow” and is limited by the particular facts before the court. Those facts included that Westboro complied with local laws and did not instigate a public disturbance during their protest. As to the nature of Westboro’s protest:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The Westboro Baptist clan protesting at Matthew Snyder's funeral

This ruling is important for many reasons. First and foremost, it preserves the primacy of free speech in America, which benefits us all. But from a parochial pro-LGBT narrative, it’s equally important to note that it proves the lie to the multiple instances when anti-gay activists falsely claimed that advances in LGBT equality and protections — whether they come in the form of marriage equality or hate crimes protections — will result in the infringement of religious and speech rights. They never have and, if this ruling is any indication, it reaffirms the fact that they never will. So the next time someone claims that marriage equality will result in pastors being prosecuted for hate speech, make a note of it: Snyder v Phelps.

Justice Samuel Alito dissented, noting that Albert Snyder, the marine’s father who brought the suit citing emotional distress, was not a public figure, but a private individual who simply wanted to bury his son in peace. He argued that the first Amendment does not mean “that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.” He then listed some of that possible emotional injury:

Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” Id., at 3781–3787. Another placard depicted two men engaging in anal inter-course. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

This line of reasoning suggests that Alito thinks being mistaken for “a homosexual” is grounds for emotional distress. Interesting…

There’s something else that’s even more interesting: Alito made a point that the larger court refused to consider.

After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A.Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” … Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly…

The larger court did not address the “epic” except in this footnote on page 3:

A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral” (emphasis added)); this Court’s Rule 14.1(g)(petition must contain statement “setting out the facts material to consideration of the question presented”). Nor did Snyder respond to the statement in the opposition to certiorari that “[t]hough the epic was asserted as a basis for the claims at trial, the petition . . . appears to be addressing only claims based on the picketing.” Brief in Opposition 9. Snyder devoted only one paragraph in the argument section of his opening merits brief to the epic. Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case.

In other words, the Snyders may have had a claim based not on the protest itself, but on Westboro’s Internet posting that was addressed specifically to the family. But for whatever reason, the family chose not to pursue that claim before the high court. Given the court’s warning about the narrowness of the case based solely on the facts considered by the court, the decision might have been a bit different had the family’s attorney chose to include the “epic” as part of their appeal.

Chaplains: DADT repeal no big deal to ministry

Timothy Kincaid

February 17th, 2011

From the Christian Post:

Army Chaplain Lt. Col. Carleton Birch said Wednesday that chaplains already have experience in counseling homosexual soldiers and will likely be able to adjust easily to an openly homosexual military.

“I’ve counseled homosexual soldiers when if I told anyone else that, they would get kicked out,” shared Birch, an evangelical.

When asked if chaplains would be limited in their ability to serve soldiers following the “don’t ask, don’t tell” repeal, he said that no changes were necessary to protect chaplains’ rights.

He maintained, “We’ve always been able to preach and teach” and anticipate little change in the future.

Lt. Col. Lisa H. Tice, a Reformed chaplain who serves in the personnel, budget and readiness division of the Air Force Office of the Chief of Chaplains, said that Tier 1, the first phase of the military training, is geared towards chaplains.

Tice said of counseling gays, “We don’t see this as a big deal.”

So all the hype about the religious rights of chaplains was just… ummm…. let’s see… well, a less than strictly honest diversion.

Britain cracks down on freedom of speech

A Commentary

Timothy Kincaid

January 27th, 2011

Two men in the UK are being prosecuted for distributing leaflets that violate the law forbidding the incitement hatred on the grounds of sexual orientation. (Independent)

The men charged were named last night as Razwan Javed, 30, and Kabir Ahmed, 27. They are accused of handing out a leaflet entitled “The Death Penalty?” in Derby.

The leaflets, which were also pushed through letterboxes, are understood to have called for homosexuals to be executed.

What does this accomplish? Who wins when speech is stifled? Certainly not our community, who now appear to be intolerant of religious view. Certainly not Muslims, who now are cast as murderous. Certainly not people of good will, who now have to take sides and play the which-minority-do-we-support game.

I think it far wiser to allow haters to say outrageous things and then use that as an opportunity for dialogue and interaction. Give Muslim clerics in the UK the opportunity to side with the gay community through public discourse, rather than force them to take a ‘religious freedom’ position that calls for the death penalty.

I know that other cultures have other values, but I am glad that the US values freedom of speech over freedom not to be insulted.

Texas religious folk weigh in on chaplains’ concerns about repealing DADT

Timothy Kincaid

December 7th, 2010

The Dallas Morning News asked a broad variety of religious leaders – Unitarians, Baptists, Jews, Methodists, Baptists, Episcopalians, more Baptists (it is Texas) – about their views on the difficulties that some military chaplains have expressed about repealing Don’t Ask, Don’t Tell. Specifically, they were asked to address the opinions of Rev. Douglas E. Lee.

Here were their responses:

KATIE SHERROD, Progressive Episcopalian activist and independent writer/producer, Fort Worth

As to the military chaplains, how do these pastors handle the conflict between “Thou shalt not kill” and the often open and widespread killing of innocents during modern warfare? Seems to me that’s a much bigger contradiction than dealing with someone who is attracted to and/or loves someone of the same gender.

CYNTHIA RIGBY, W.C. Brown Professor of Theology, Austin Presbyterian Theological Seminary

Chaplains who believe homosexual sex is sinful are not being asked to change what they believe. They are, however, being asked to honor the fact that not all people of faith think the same way by listening, understanding, counseling, and leading worship in ways that model compassion and welcome into fellowship those who strongly disagree. If a clergy person is not gifted at honoring others’ positions, he or she is not called to the particular vocation of being a military chaplain and should seek a ministerial calling elsewhere.

Perhaps chaplains who are more socially conservative would be helped by seeking counsel from their more liberal counterparts, who are well practiced at negotiating the space between their own convictions and military policy. Military chaplains who do NOT believe homosexual sex is a sin have, for decades, been expected to be careful about how they represent their views, especially in the face of the military’s “don’t ask, don’t tell” policy. While the repeal of the policy will be a challenge for some chaplains, it should be remembered that it would be a burden lifted from the consciences of many others.

DANIEL KANTER, Senior Minister, First Unitarian Church of Dallas

My personal approach, and the one I learned as a hospital chaplain, is to meet people where they are to address their deepest needs and struggles. I know that it is possible that my beliefs can get in the way of the healing that can take place in a counseling setting. As clergy we first must aim to make room for people to be who they are as children of God and only in a distant second do we introduce our personal values into the room.

JOE CLIFFORD, Senior Pastor, Head of Staff, First Presbyterian Church of Dallas

If chaplains paid by the government feel they cannot proclaim what their faith believes, then perhaps they should not work for a government that prohibits establishing any one religion.

JAMES DENISON, Theologian-in-Residence, Texas Baptist Convention and President, Center for Informed Faith

At the same time, military chaplains are commissioned to serve people of all faith commitments and none, whether they agree with their beliefs or not. They can serve alongside and counsel soldiers who do not obey biblical teachings without endorsing such behavior. The same seems true regarding sexual activity, whether homosexual or heterosexual.

As a pastor, I never required those I counseled to believe everything I believed, or felt I endorsed their actions by trying to help them. The darker the room, the greater the need for light.

MIKE GHOUSE, President, Foundation for Pluralism, Dallas

When an individual opts to serve our country to defend our freedom, we must honor that individual to the highest degree and treat him or her with dignity. We should never forget that they are defending every American and not just an exclusive club. Those of us who serve them ought not to forget to reciprocate them with equal enthusiasm and unrestrictive honor.

The Army Chaplains are employees of the nation to serve the men and women who defend our nation, and they ought to serve every defender of our nation regardless of their sexual orientation, race, ethnicity, faith, language or appearance.

LARRY BETHUNE, Senior Pastor, University Baptist Church, Austin Texas

The religious liberty of the troops and their protection from discrimination when seeking spiritual care is at least as important as the protection of the spiritual liberty of the chaplains.

Chaplains will not be required to teach or counsel against their beliefs unless their beliefs compel them to discriminate or disrespect the religious liberty of others, in which case they need to choose a sectarian setting rather than a chaplaincy setting for their ministry. As the U.S. Coast Guard Academy white paper referenced in the Pentagon’s implementation plan (page 9) suggests: “…religious plurality is a core American value.”

DARRELL BOCK, Research Professor of New Testament Studies, Dallas Theological Seminary

They have to do the best they can to honor their convictions and yet try to serve those they are called to minister to. This is not always easy, but the military is full of such situations given the mix of faiths that are present.

Counselors often find themselves dealing with situations where they would act differently. Still, one can always listen and give advice knowing it may or may not be heeded. That is about all one can do.

GEOFFREY DENNIS, Rabbi, Congregation Kol Ami in Flower Mound; faculty member, University of North Texas Jewish Studies Program

It is well past time for this discriminatory aspect of our armed forces to disappear. Gay men serve effectively in other armed forces, such as the IDF. I know some personally.

As a police chaplain who has worked with people in crisis from diverse faiths, I don’t see how the inclusion of gay troops should present any additional difficulty that is not already faced by military chaplains who counsel soldiers, given that many soldiers engage in behaviors that a given chaplain may not morally approve of.

Lots of soldiers, for example, drink alcohol socially. Are the current hard-shell Baptist and Muslim chaplains simply unable to counsel such troops without getting entangled in arguments about liquor?

WILLIAM LAWRENCE, Dean and Professor of American Church History, Perkins School of Theology, Southern Methodist University

Anyone who serves as a military chaplain chooses that career path in ministry. No chaplains today are drafted. Therefore, every chaplain knows that proclaiming the faith and providing pastoral care must be professionally done without insisting that one’s own personal or denominational preferences will prevail.

It would be outside the role of chaplains, in a military that allows gay and lesbian personnel to serve, for the chaplain to condemn or deplore the orientation of a uniformed person’s sexuality. If a chaplain finds someone’s sexual orientation to be offensive or unacceptable theologically, the chaplain must arrange for a less offended colleague to offer ministerial care. Or the offended chaplain must consider finding another venue for exercising her or his call to ministry.

Ya know, if the Texas Baptists really aren’t seeing this as a hardship for chaplains, well then I really don’t think that religious liberty is at stake.

Court rules that law school need not recognize anti-gay Christian group

This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin.

Timothy Kincaid

June 28th, 2010

From the Chronicle

An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won’t let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group’s “discriminatory practices.”

The court turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California’s Hastings College of the Law. The CLS requires that voting members sign a statement of faith and regards “unrepentant participation in or advocacy of a sexually immoral lifestyle” as being inconsistent with that faith.

I have mixed feelings about this decision, partly because the SCOTUS agreed with the Ninth Circuit that

The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.

In reading the decision, we must keep in mind that this is not a ruling on CLS’ policies, but on whether Hastings’ policies are constitutional.

On the one hand, I strongly object to the gay students at Hastings having to pay student fees which are in turn funneled to an organization that excludes them from membership. I am troubled by the growing sense of entitlement which many anti-gay religious groups seem to be adopting from which they demand that society not only follow the rules of their sect but be required to fund them as well.

And this decision confirms the right of a school – even a public school – to establish and uphold non-discrimination policies. An opposite ruling might lead to assumptions that schools cannot make any restrictions on anti-gay discrimination.

But, on the other hand, I fear that broad interpretation may lead to an inability for any organization to control its own identity.

Would, for example, the Clara Foltz Feminist Association be subject to a take-over by religious conservatives who can then vote that the club take positions which oppose reproductive rights and assert that a woman is to be subject to her husband? Could the Hastings Jewish Law Students Association become the missionary arm of Jews for Jesus – or of the Scientologists, for that matter? Can the new motto of the Environmental Law Society become “Drill, baby, drill”.

While this may seem unlikely, it is not unheard-of for a student organization to be hijacked for petty school politics, or even as a lark. The court, however, did not think that such concerns were reasonable.

CLS also assails the reasonableness of the all-comers policy in light of the RSO forum’s function by forecasting that the policy will facilitate hostile takeovers; if organizations must open their arms to all, CLS contends, saboteurs will infiltrate groups to subvert their mission and message. This supposition strikes us as more hypothetical than real.

Students tend to self-sort and presumably will not endeavor en masse to join—let alone seek leadership positions in—groups pursuing missions wholly at odds with their personal beliefs. And if a rogue
student intent on sabotaging an organization’s objectives nevertheless attempted a takeover, the members of that group would not likely elect her as an officer.

I have personal experience which contradicts the court’s assumption. And Justice Alito’s dissent does not find the idea to be nonsensical.

But from a practical perspective, the greatest impact of this decision will be limited to those religious campus organizations who eject, reject, or limit gay students. The national Christian Legal Society will have to choose to go off-campus at many law schools (those with non-discrimination policies) or to revise its policies.

But other organizations may be immediately impacted as well, if to a lesser extent. As I recall, my fraternity required that its members believe in God, though that was interpreted broadly, could be “acknowledged symbolically”, and seemed to have no measurable influence on daily life. But it would seem that this “religious belief” requirement could also be a reason for exclusion of this group from meeting on campus or having recognition of any form.

Although in minority, Alito argued that a policy demanding that all organizations ‘accept all comers’ (whether or not selectively enforced) places a great burden on those who meet based on commonly shared religious beliefs, regardless of where they exist on the religious spectrum.

There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization.

But, other than its immediate impact on this one Christian group and other similar groups, the court’s decision may also tell us a few more things than simply what is allowable school policy. And while I have some concerns about the court’s interpretation of freedom of speech and association, they are countered by concerns about compulsory fees being withheld and distributed to organizations that some students cannot join. So, for me, the most interesting aspects of this case can be found in the way in which justices view gay people.

1. This decision may give us clues as to whether the court is sympathetic to religious exclusion of gay people from society. In this match up of non-discrimination policies v. the religious liberty to exclude gay people, the court chose not to let religious belief trump orientation.

2. The case was closely decided, 5-4. Justice Ginsberg wrote the decision and was joined by Justices Stevens, Kennedy, Breyer, and Sotomayor. The dissent was written by Alito and joined by Scalia, Roberts, and Thomas.

Much of Alito’s objection focused on the distinction between whether Hastings’ refusal to offer Registered Student Organization status was based in an “accept all comers” principle or a Non-Discrimination Policy. He asserted that (irrespective of stipulation) at the time of rejection the school did indeed “permi[t] political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs” and only decided that this was an “accept all comers” policy after the fact.

Alito noted that many organizations limited members to those who agree with their positions (e.g. the pro-life group, the Democratic Caucus) and at least one had race-based restrictions (La Raza). They were required to change these provisions only after CLS was rejected for membership, illustrating that “that Hastings had no accept-all-comers policy until this litigation was well under way.”

3. The court contrasted this decision from that which allowed the Boy Scouts to exclude members.

CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies [as opposed to limited public forum], in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out. See, e.g., Dale, 530 U. S., at 648 (regulation “forc[ed] [the Boy Scouts] to accept members it [did] not desire”

Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition.

This would suggest that cities who wish to limit their public subsidies to only those organizations that do not discriminate are free to do so. Indeed, this seems to directly contradict the decision of the jury in Philadelphia.

In his rebuttal, Alito found this case to be exactly similar to Dale in that the policy forces organizations to accept members with whom it does not wish to associate. He dismissed the funding possibilities as inconsequential and only a small part of the case.

4. The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference:

To bring the RSO program within CLS’s view of the Constitution’s limits, CLS proposes that Hastings permit exclusion because of belief but forbid discrimination due to status. See Tr. of Oral Arg. 18. But that proposal would impose on Hastings a daunting labor. How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?

This case itself is instructive in this regard. CLS contends that it does not exclude individuals because of sexual orientation, but rather “on the basis of a conjunction of conduct and the belief that the conduct is not wrong.” Brief for Petitioner 35–36 (emphasis deleted). Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U. S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).

Here, interestingly, Alito dismisses the majority’s logic as “because it is easier to enforce.” He does seem to accept distinction between identity and behavior, but not in a way which argues that gay people are only “folks who engage in certain behavior.” Rather, he seems to agree that gay people, as such, exist but that they, like Muslims, Atheists, and those Christians who believe significantly different doctrines than those of CLS, should be able to be excluded by a club which is based on certain shared religious beliefs.

In fact, while Alito questioned (in a footnote) what might possibly be meant by religious status (as opposed to religious belief) in terms of immutable characteristics, he seems to have no question about what sexual orientation status may mean. Nor does the dissent suggest that orientation is mutable or inconsequential.

While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.

5. The dissent was not homophobic. Indeed, Alito seemed far less interested in why CLS was excluding members than he was in their right to do so without being marginalized based on their viewpoint. His was a freedom of expression argument rather than an upholding of morals and standards argument.

As Roberts, Thomas, and Scalia did not write separate dissents, we cannot know their motivations. However, this is in tone far from that of Scalia in Lawrence v. Texas, and to me hints as a certain mellowing that may be occurring on the conservative end of the bench. Or, at least, I hope that is what it suggests.

6. And finally, the justices illustrate that legal findings need not be boring or dry. Stevens, in his concurring opinion, gets points for the best quote:

“In the dissent’s view, by refusing to grant CLS an exemption from the Nondiscrimination Policy, Hastings violated CLS’s rights, for by proscribing unlawful discrimination on the basis of religion, the policy discriminates unlawfully on the basis of religion.”

Lying About The Hate Crime Bill, #2: “A Danger To Religious Freedom”

Jim Burroway

July 16th, 2009

Among the many claims of opponents to the Local Law Enforcement Hate Crimes Prevention Act of 2009 (H.R.1913) — known in the Senate as the Matthew Shepard Hate Crimes Prevention Act (S.909) — is the contention that this bill represents a danger to religious freedoms. The proposed legislation would expand the already existing federal hate crime law to include violent crimes based on the victim’s actual or perceived sexual orientation, gender, gender identity, and/or disability. The current law already covers actual or perceived race, ethnicity, color and religion. This is very important to remember because it makes the “danger to religious freedom” argument particularly illogical.

That argument, as promulgated by anti-gay activists, insists that the proposed hate crimes prevention act will effectively criminalize religious objections to homosexuality and will “muzzle” pastors. Here’s how the Family Research Council recently put it:

Let’s say you preach from Genesis 19 or Romans 1, referencing the homosexual agenda or lifestyle. Your sermon could be heard by an individual who applies it in a way prohibited by a hate crimes law. Not only would the offender be prosecuted under this law, but you could also be prosecuted for conspiracy. Consequently, hate crimes laws would radically impact our freedom of speech as Christians.

Matt Barber puts it this way:

This creates both a sociopolitical and legal environment wherein traditional sexual morality officially becomes the new racism. Those who publically [sic] express medical, moral or religious opposition to the homosexual lifestyle are tagged by the government as “homophobic bigots” to be treated no differently by law enforcement, the courts or larger society than the KKK or neo-Nazis.

Barber’s warning is particularly relevant. What would happen if “homophobic bigots” were treated exactly the same as the KKK or neo-Nazis?

Well, to answer that, we could well ask how does the current hate crimes law treat the KKK and neo-Nazis?

The KKK at the Minnesota state Capital, August 2001

The KKK at the Minnesota state Capital, August 2001

The federal hate crime law already protects against crimes motivated by hatred of religious groups, but that didn’t keep neo-Nazis from winning the right to march in predominantly Jewish Skokie, Illinois (with the ACLU’s help, I might add). The current hate crime law also protects against crimes motivated by racial hatred, but that didn’t stop the KKK from marching and shouting slogans in Cleveland (again with the ACLU’s help). Hate groups have rallied at state houses in Minnesota, Nebraska and South Carolina, In fact, White Supremacist groups have held nearly a hundred rallies, demonstrations and meetings across America in this year alone — and the existing hate crime law at both the state and federal level have deterred none of it. And yes, they’ve even protested gay pride parades as well, something that they have in common with more than a few conservative Christian groups.

“Pastor” James Wickstrom

“Pastor” James Wickstrom

Extremist hate groups are also free to practice their hate speech, including when they do so under the guise of religious belief. There are some three dozen racist Christian Identity groups active in America right now. Some even operate radio broadcasts and “prison ministries.” One such “pastor,” James Wickstrom, argued that Jews should be beaten, thrown into a wood chipper, and “give them the holocaust they rightly deserve.” This, even though current hate crime laws already protect on the basis of religion.

Now if “pastor” Wickstrom can say something as offensive and dangerous as that with the existing hate crime laws in place under the guise of his religious beliefs, then there’s nothing that Matt Barber can say now that can’t be said should the Matthew Shepard bill become law. And that’s because the First Amendment to our constitution provides a pretty ironclad guarantee of freedoms of speech and of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

And under that Ironclad guarantee of freedom of speech and religion, some pretty unsavory groups have freely spouted their unsavory beliefs. Our First Amendment protects our right to say pretty much anything we want, no matter how ugly, hateful, or factually wrong we may be. And no law — not even this proposed hate crimes law — can get in the way of that.

But that’s not what opponents to the hate crimes bill would have you believe:

If we do not act decisively at this time, S.909 will make illegal every word in the Bible describing the destruction wrought by this vile behavior, and prepare the way for total censorship of the Gospel of Christ. Our children will pay a horrible price for our cowardice.” Rev. Flip Benham, National Director, Operation Rescue/Operation Save America

But S.909, the senate version of the bill, won’t make illegal any words whatsoever, because it only expands the current hate crimes law to cover sexual orientation. And the current hate crimes law doesn’t make illegal any words either. And in case there’s any confusion about this, the version of the Matthew Shepard act which passed the House says so specifically:

Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution.

And the Senate version is even more expansive in its assurances:

(3) CONSTITUTIONAL PROTECTIONS- Nothing in this Act shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

(4) FREE EXPRESSION- Nothing in this Act shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

Now notice what I just did. I linked directly to both the House and Senate versions of the act so you can read it for yourself. Ever wonder why our opponents won’t do the same when they make these outlandish claims?

But What About Pastors in Sweden, Britain and Canada?
Anti-gay opponents often bring up examples from other countries, claiming that what can happen over there can happen here. Focus On the Family has a so-called “Facts Sheet” which claims (PDF: 44KB/2 pages):

In Sweden, Canada and Great Britain, “hate crimes” laws have been used to prosecute Christians speaking their disapproval of homosexual behavior, posing a serious threat to religious liberty and free speech.

The Family Research Council adds:

Don’t believe it? Just Just ask Pastor Ake Green who was charged and sentenced on June 29, 2004 to one month in jail for showing “disrespect” against homosexuals because of a grace and truth filled sermon delivered in Borgholm, Sweden on July 20, 2003 . Thanks to the efforts of our friends at ADF, that sentence was overturned on appeal, but you can see what a chilling effect that hate crimes laws would have on the freedom of speech and religion.

But Sweden’s example simply doesn’t apply here. Sweden has a hate speech law that goes back to 1948, when it was originally written in response to the Holocaust. Laws which limit hate speech are quite common in many European countries. But that’s because their constitutions allow such laws to exist. Ours doesn’t. Swedish journalist Tor Billgren, who writes the blog Antigayretorik, reminds us that no preacher has been fined or jailed for quoting the Bible:

Pastor Åke Green was sentenced to 1 month imprisonment by the district court, but was acquitted by the court of appeal and the supreme court. He wasn’t jailed. There’s another case as well: Leif Liljeström, a Christian (not a preacher) who owned a discussion forum on the web. He was sentenced to 1 month for things another person wrote on the forum (according to the Swedish law the owner of the forum is responsible). However, this wasn’t quotes from the Bible, but extreme hate speech. This case will be dealt with by the Supreme Court. He hasn’t been jailed.

Britain is often cited as another example by anti-gay activists. But the U.K. has no written constitution, nor does it have a Bill of Rights like ours which enumerates inviolable rights among its citizenry. (If I remember, that was one of the sore points between us more than two hundred years ago.) Consequently, Britain has a long history of banning all sorts of speech. As recently as 1988, Margaret Thatcher’s government banned the broadcast of all appearances and interviews of members of Sinn Fein and the IRA. (According to the BBC, “instead of hearing Gerry Adams, viewers and listeners would hear an actor’s voice reading a transcript of the Sinn Fein leader’s words.”) You just try to get that past our Constitution here.

Canada also has a hate speech law. Bill C-250 criminalizes certain types of hate speech towards persons of any sexual orientation: homosexuals, bisexuals, or heterosexuals. In other words, it protects everyone equally. But there is a clause which specifically exempts religiously motivated speech. In other words, religious freedom always trumps hate speech in Canada according to this particular law. But again, Canada’s constitution does not prohibit curbs on speech the way the American constitution does.

But What About the “Philadelphia Eleven”?
But some claim that just such a curb on freedom of speech has actually happened here:

House Majority Leader Steny Hoyer claims the legislation “does not affect free speech or punish beliefs or thoughts. It only seeks to punish violent acts.”  But Andrea Lafferty, executive director of the Traditional Values Coalition, says Hoyer is ignoring the case of eleven Christians in Philadelphia who were charged with hate crimes for sharing Scripture verses at a homosexual pride rally.

“Ask the Philadelphia 11. We know what these supposed ‘hate crime’ laws are meant to do. In Philadelphia, Christians were arrested and jailed based on hate crime law,” she points out. “So we know that what the other side is saying — that it will not affect pastors or youth pastors or Christians — we know that is not true.”

Philadelphia organizers, participants, and police were willing to tolerate the signs and taunts from a group of Repent America protesters when they remained at the edge of the event’s grounds. But then those protesters pushed their way onto the festival grounds to try to forcibly disrupt the event, they were surrounded by Outfest supporters armed with pink whistles and eight-foot-tall pink-colored boards mounted on sticks.

Repent America, who didn’t have a permit for their gathering, was trying to disrupt an OutFest rally which did have a valid permit. So police were called, and they instructed the demonstrators to go back out to the the edge of the Outfest area. The demonstrators ignored three separate orders to move. When they were told by police they would be arrested if they refused to move, they sat down, forcing the police to arrest them.

Prosecutors charged the protesters with violating several laws including the state’s hate crime law. But the court dismissed those charges, calling them an infringement on the protester’s First Amendment rights.That’s right. Just like with with the Klan and the neo-Nazis, Repent America’s actions were protected by the First Amendment.

This may be a case of overzealous prosecutors misapplying the law. But that doesn’t mean the law itself is flawed. We’ve had cases where overzealous prosecutors have pinned far worse charges on innocent people. Some have even ended up on death row for wrongful murder convictions. The answer to that problem isn’t the elimination of laws against murder, but to ensure that everyone has a speedy and fair trial — which is another of our cherished constitutionally protected rights.

And in this particular case, the problem wasn’t with the police who removed Repent America from OutFest; it was with the prosecutor’s decision to charge them under the state’s hate crimes law. In fact, when Repent America tried to sue the city of Philadelphia for wrongful arrest, that court ruled that the police acted properly. It was Repent America’s disruptive actions which led to their arrests, not the content of their speech.

Those who claim that the proposed hate crimes bill is a danger to free speech or religious freedoms need to not only dust off their copy of the Bill of Rights, but also look around at what a lot of people are already getting by with under the current hate crime law. Even if Repent America, Focus On the Family, or the American Family Association were to wind up in the same classy company of the KKK and neo-Nazis as Matt Barber fears, they will still be free to say whatever they damn well please.

See also:
Lying About The Hate Crime Bill, #2: “A Danger To Religious Freedom”
Lying About The Hate Crime Bill, #1: “The Thirty Sexual Orientations”

Rick Warren Exploits Paranoia To Defend Prop 8

Jim Burroway

December 16th, 2008

Rick Warren — you remember him. He has all of those “many gay friends” — said this about why he supported California’s Prop 8:

…There were all kinds of threats that if that [Prop 8] did not pass, then any pastor could be considered doing hate speech if he shared his views that he didn’t think homosexuality was the most natural way for relationships. And that would be hate speech. To me, we should have freedom of speech. And you should be able to have freedom of speech to make your position, and I should be able to have freedom of speech to make my position. And can we do this in a civil way?

This is unadulterated nonsense. First, a civil marriage law does nothing to impinge on what a pastor can preach. Divorce is very common, but you can waive all the divorce decrees and new marriage licences in front of a Catholic priest’s face and he’s not going to marry anyone unless the Vatican has granted an annulment. And he’ll be happy to explain it to the couple in his office, at the pulpit, on the Internet, or anywhere else. It’s not hate speech.

And what if it were considered hate speech? No problem there either because in the United States, hate speech is not against the law. And it can never be against the law as long as the First Amendment is in effect. We already have laws against discrimination based on race and religion, but even with those laws, Rick Warren can be as anti-Semitic and racist as he wants to be. He’s neither of those things, but if he wanted to be, he could. And the law would protect him.

I suspect Rev. Warren knows that. But he’d rather stoke the paranoia of his fellow evangelicals than actually discuss the issue “in a civil way.”

Prop 8: The End of the World

Jim Burroway

October 27th, 2008

If California’s Proposition 8 fails, it’ll be Armageddon, and all that — according to Charles Colson and Tony Perkins:

“This vote on whether we stop the gay-marriage juggernaut in California is Armageddon,” said Charles W. Colson, the founder of Prison Fellowship Ministries and an eminent evangelical voice, speaking to pastors in a video promoting Proposition 8. “We lose this, we are going to lose in a lot of other ways, including freedom of religion.”

Tony Perkins, president of the Family Research Council, a conservative Christian lobby based in Washington, said in an interview, “It’s more important than the presidential election.”

“We’ve picked bad presidents before, and we’ve survived as a nation,” said Mr. Perkins, who has made two trips to California in the last six weeks. “But we will not survive if we lose the institution of marriage.”

Why the doom and gloom? Prop 8 proponents are now raising the scare tactic that Prop 8′s passage will mean that churches that refuse to marry same-sex couples will be sued, or ministers will be jailed if they preach against homosexuality.

This, of course, is not possible in the United States because of the First amendment. Christian Identity churches are free to preach White Supremacy and anti-semitism, and fundamentalist protestant extremists are free to call the Pope the Anti-Christ. Nobody gets thrown in jail for any of that. And the Catholic Church has been free to refuse to marry anyone who has been divorced, no matter how many divorce papers or civil marriage licenses a couple can waive in front of the priest.

Exodus Board Member Suing to Hold Church Services in Public Library

Timothy Kincaid

March 9th, 2008

burress.jpgPhil Burress is the president of Citizens for Community Values, an anti-gay advocacy group that is credited with spearheading the 2004 amendment that bans gay marriages in Ohio. He is also an officer on the Board of Directors of Exodus International.

Burress makes no pretenses that he is not an enemy of the lives, liberties and freedoms of gay people. In fact, his organization ranks as one of the most overtly homophobic groups of which I am aware. On his website’s position paper on homosexuality, he concludes:

At the outset of this paper we stated that the militant agenda of homosexual activists represents the single greatest threat to our Judeo-Christian family values, and to societal stability as a whole, of this generation. We hope that you understand our rationale for that statement and will join us in resisting, on every front, the organized effort to normalize homosexual behavior in our society.

Burress has long been viewed as a pain in the side of Cincinnati. After CCV was successful in getting the citizens of the city in 1993 to overturn anti-discrimination codes, the business community became annoyed. The city gained a reputation of being intolerant and homophobic, which reduced the pool of talented potential employees.

Indeed it was a coalition of business groups in that city that led to the successful vote in 2004 to overturn Burress’ meddling.

Now, according to Ohio.com, Burress continues his attack on the city and its residents**. CCV is suing a local public library because they do not allow religious services in their meeting rooms.

The canceled library meeting was part of a “Politics and the Pulpit” discussion planned by Citizens for Community Values. It was to include a discussion of politics and religion, as well as a “prayer petitioning God for guidance in the church’s proper role in the political process” and “singing praise and giving thanks to God,” according to the lawsuit.

Library officials said praying and singing are elements of a religious service, which is not allowed under library policy.

Naturally, CCV is being represented by Alliance Defense Fund, a ministry dedicated to using legal means to advantage conservative Christian groups over their secular neighbors. ADF is a ardent opponent to the separation of Church and State.

“Christian groups shouldn’t be discriminated against for their beliefs,” said Tim Chandler, an attorney with Alliance Defense Fund, a conservative Christian legal group that joined the lawsuit.

“The government cannot treat people with nonreligious viewpoints more favorably than people with religious viewpoints,” Chandler said. “Christians have the same First Amendment rights as anyone else in America.”

Perhaps I’m old fashioned. But my father and both of my brothers are ministers and at no point have they insisted that the residents provide free meeting places for their religious services. It takes a huge sense of entitlement to demand that government – be local or national – subsidize your religious endeavors.

Burress has no lack of sense of entitlement. Nor does he ever hesitate in his efforts to force his articles of faith on others, especially gay people.

Recently Exodus has declared that they have changed their efforts and will no longer focus on anti-gay public policy but will instead return to their original mission of ministering to those same-sex attracted persons who believe that homosexuality is contrary to a Biblical code of sexual ethics.

In August, 2007 after a lot of prayer, deliberation and listening to friends and critics alike — but mostly the Lord — we decided to back out of policy issues and our Director of Government Affairs took a position with another organization.

I believe strongly in all of the initiatives that we were involved in, but believe we must focus on our two greatest contributions: 1) helping the Church balance grace and truth where homosexuality is concerned and 2) connecting people who seek our help with a community of believers that can love them as they journey towards Christ.

While I disagree with Exodus’ version of “grace and truth where homosexuality is concerned”, I find that statement commendable.

But Exodus needs to back up its claim with action. It needs to sever from its midst those elements who do nothing but advocate discrimination against gay people and who serve no function but as political activists.

I contend that as long as Burress is on the Board of Directors of Exodus, they will continue to be viewed as an anti-gay political advocacy organization – and rightly so.

** UPDATE – Reader Stefano has corrected my faulty Ohio geography. The library is in a neighborhood in Columbus.

Exodus, Meet The First Amendment

Exodus needs a lesson in basic high-school level Civics.

Jim Burroway

January 16th, 2007

Update: Mark, from Slapped Upsite The Head, left a comment to correct my feeble understanding of the intricacies of Canadian law. Meanwhile, Tor Billgren updates me via E-mail on the origin of Sweden’s hate speech law. Corrections and additions are noted below.

Many anti-gay organizations oppose extending hate crime laws to cover sexual orientation, claiming that to do so will take away their religious freedoms. Exodus added their voices to the chorus just yesterday by issuing this press release:

Today, as the nation celebrates Religious Freedom Day, Exodus International, the world’s largest ministry to those desiring freedom from unwanted homosexuality, joins pro-family groups around the nation in urging Congress to stop a hate crimes bill that would penalize those with faith-based beliefs about homosexuality.

Alan Chambers, President of Exodus International, said, “Today, we celebrate a sacred right to freely practice our individual religious beliefs, and at the same time, Congress is debating legislation that could eventually destroy these freedoms. Hate crimes legislation does not prosecute illegal actions that harm others, it prosecutes beliefs about homosexuality that for many Americans, is consistent with their faith.”

This is utter nonsense. Nothing in the hate crime legislation prosecutes beliefs of any sort. Anyone can believe whatever they want to about sexual orientation, and anyone can say anything they want to about their beliefs.

Alan Chambers is displaying an abysmal ignorance about one of the most basic tenants of our constitution. While we already have hate crime legislation in place for categories of gender, race and religion, none of it even remotely affects speech or beliefs. And the reason is simple: our First Amendment protects our right to say pretty much anything we want, no matter how ugly, hateful, or factually wrong we may be.

That’s right. The Nazis are free to march in predominantly Jewish Skokie, IL (with the ACLU’s help, I might add) because of the First Amendment, and the Klan is free to spew hatred against racial minorities in Cleveland. You can advocate genocide, you can defend Al-Qaida, and you hurl any racist epithet you want. It won’t help your comedy career much, but you can’t be fined or jailed for it. As long as you’re not shouting fire! in a crowded theater or threatening to kill the president, you can say pretty much anything you want.

The courts and legislators at every level have been exceptionally diligent in protecting everyone’s right to say anything, no matter how stupid, hateful, or disgusting that speech may be judged by others. Hate crime legislation in the U.S. simply cannot criminalize speech. Our constitution forbids it right there, in our cherished First Amendment, something that Alan Chambers really ought to read sometime:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

He also ought to remember that he lives in Florida, not Canada, Australia, Sweden, or Britain:

Canada, Australia, Sweden and other European nations have used hate crimes law to punish, even imprison preachers for speaking out against protected persons. Preachers have been fined or jailed in Canada and Sweden for quoting passages from the Bible about homosexuality. In England, a Christian was thrown in jail for passing out pamphlets with Bible verses condemning homosexual activity. In Philadelphia, eleven Christians were jailed for sharing a message from the Bible to a crowd of people attending a public pro-gay event.

Canada, Australia, Sweden and other European nations don’t have anything like our First Amendment. We’re quite exceptional in our absolute insistence on our infettered freedoms to say whatever we want. What happens elsewhere does not automatically happen here, nor can it. Our courts and constitution simply won’t allow it. If our laws can’t stop the Nazis and the Klan from marching, they won’t stop Exodus from denigrating gays and lesbians. Or exaggerating and lying about what has happened elsewhere.

Canada’s Bill C-250 criminalizes certain types of hate speech towards persons of any sexual orientation: homosexuals, bisexuals, or bisexuals. In other words, it protects everyone equally. But there is a clause, known in Canadian law as a “not withstanding” clause, which specifically exempts religiously motivated speech. In other words, religious freedom always trumps hate speech in Canada according to this particular law.

Sweden has a similar law that protects people from “unfavorable speech,” and like the Canadian law, it protects everyone equally: homosexuals, bisexuals, and heterosexuals. Swedish journalist Tor Billgren, who writes the blog Antigayretorik, was angered by Chambers’ press release. Defending his beloved Sweden, he e-mailed me to say that while they have hate speech laws there, no preacher has been fined or jailed for quoting the Bible:

Pastor Åke Green was sentenced to 1 month inprisonment by the district court, but was aquitted by the court of appeal and the supreme court. He wasn’t jailed. There’s another case as well: Leif Liljeström, a christian (not a preacher) who owned a discussion forum on the web. He was sentenced to 1 month for things another person wrote on the forum (according to the swedish law the owner of the forum is responsible). However, this wasn’t quotes from the Bible, but extreme hate speach. This case will be dealt with by the supreme court. He hasn’t been jailed.

(Update) Sweden’s hate speech law goes back to 1948, when it was origionally written in response to the Holocaust. Laws like these limiting hate speech are quite common in many European countries. But that’s because their constitutions allow such laws to exist. Ours doesn’t.

Britain is a separate case altogether. The U.K. has no written constitution, nor does it have anything like our Bill of Rights. If I remember, that was one of the sore points between us more than two hundred years ago. While we may think of Britain as a free country, there is, in fact, no constitutional protections of free speech whatsoever. Consequently, Britain has a long history of banning all sorts of speech. As recently as 1988, Margaret Thatcher’s government banned the broadcast of all appearances and interviews of members of Sinn Fein and the IRA. (According to the BBC, “instead of hearing Gerry Adams, viewers and listeners would hear an actor’s voice reading a transcript of the Sinn Fein leader’s words.”). You just try to get that past our Constitution here.

And as proof further that our First Amendment protects everyone, each of the eleven Christians from Repent America who were jailed in Philadelphia “for sharing a message from the Bible” — messages that were lovingly shouted through bullhorns — saw all of their charges dropped. Why? It’s simple. As it was with the Klan and the neo-Nazi’s, their actions were protected by the First Amendment.

To defend our freedoms, sometimes some pretty disagreeable people wind up paying a price. That is unfortunate, but as we all know, freedoms aren’t free. Freedom of speech is only meaningful when that speech is offensive, and Repent America, Fred Phelps, the Klan and Nazi’s have all advanced the cause of free speech for the rest of us by being thoroughly offensive and disgusting. I guess we have to give them that. Exodus can thank them as well.

The hate crime laws that Congress in considering doesn’t address speech for one simple reason: It can’t. For Exodus to claim otherwise shows an abysmal ignorance of the law — or dishonesty. It’s one of the other. Take your pick.