(CNSNews.com) - The new federal hate crimes law has all the potential to be a major attack on religious liberty and freedom of speech, according to top religious liberty attorneys.
The law was chosen the number one anti-Christian act of 2009 by the Christian Anti-Defamation League.
Attorneys who defend religious rights agree: The recently enacted hate-crimes law is a threat to religious liberty.
“The very fact that this law elevates ‘sexual orientation’ and ‘gender identity’ to the same protected status as race – that in and of itself is a cataclysmic shift in policy,” said Mathew Staver, president of the religious liberty law firm Liberty Counsel and dean of the Liberty University Law School.
“That will have a ripple effect far beyond the specific words of this bill,” he added. “That is contrary to our Judeo-Christian heritage and beliefs, far beyond any particular disclaimer that it is not going to affect speech.”
Erik Stanley, an attorney with the Alliance Defense Fund, which is based in Scottsdale, Ariz., said the hate-crimes law is not about punishing crimes. It’s about punishing beliefs and ideas.
“It is actually a thought-crimes law,” Stanley said. “There is no difference between, say, an assault that is already punishable, and an assault that is punishable as a hate crime, other than the belief of the perpetrator.”
Hate-crimes laws are never enacted to help prosecutors put felons away, Stanley said. They are placed on the books to “send a message.”
“One of the primary motivations for hate-crimes laws is to send a societal and a governmental message of disapproval of certain beliefs that are held by people,” Stanley told CNSNews.com.
The new hate-crimes law is designed to try to eradicate the belief that homosexuality or transgenderism is abnormal or sinful, Stanley said.
“Now certainly, we would agree that you cannot act on those beliefs in a criminal manner,” he added. “But this would be the very first time that the federal government is sending that message of governmental disapproval of a certain belief that is widely held by a majority of Americans, and a religious belief – that homosexuality behavior is unbiblical or sinful.”
The new hate-crimes law, officially known as “The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act,” doesn’t penalize speech. It specifically targets and provides for sentences up to 10 years for violent crimes to anyone causing bodily injury or attempting to do so – “through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device” based on the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any Person.”
It also specifically says prosecution “does not include solely emotional or psychological harm to the victim.”
But Stanley said the concern of constitutional attorneys who defend religious freedom in court is not that pastors and churches will now be "hauled out of their pulpits for preaching a biblical message for preaching a message about homosexual behavior, right off the bat" – but that they will become part of hate-crimes prosecutions.
“I think what we’re concerned about is that a pastor would be called to testify in connection with a hate-crimes prosecution,” Stanley told CNSNews.com. “For instance, if someone commits a ‘hate crime,’ relevant evidence would be: what are their associations, what pastors do they listen to, what do those pastors say? And those pastors could be called to testify as to what they believe and what they preach about homosexual behavior.”
The very fact that the pastors would be called to testify in connection with a hate-crimes prosecution would “send a chill and a shockwave throughout the pastorate,” Stanley said. “It can chill speech just as easily as telling a pastor: ‘You cannot speak.’ ”
Worse, he said, is that everywhere that hate crimes laws have been enacted, speech restrictions have followed.
“Hate-crimes laws always lead to hate-speech regulations,” Stanley said.
“We’ve seen hate crimes laws that progressed to hate-speech regulations in places like Canada, Sweden, other places in Europe, Australia, where we have seen things start out as hate-crimes laws. It’s not a very big logical leap between a hate-crimes law and a hate-speech regulation."
In December, in fact, the Canadian province of Quebec adopted an official policy to “combat homophobia.”
The policy contains steps toward an official ban on what it calls “Heterosexism” – which Quebec defines to be the “(a)ffirmation of heterosexuality as a social norm or the highest form of sexual orientation; social practice that conceals the diversity of sexual orientations and identities in everyday representations, social relations and social institutions, in particular by taking for granted that all people are heterosexual.”
It also defined “Homophobia” to mean “All negative attitudes leading to the rejection of and direct or indirect discrimination against gays, lesbians, bisexuals, transsexuals and transgenders, or against persons whose appearance or behaviour does not conform to masculine or feminine stereotypes.”
Quebec Justice Minister Kathleen Weil is now charged with implementing the policy.
“An inclusive society such as ours must take the necessary steps to combat homophobic attitudes and behaviour patterns, and move towards full acceptance of sexual diversity,” Quebec Premier Jean Charest said.
But could that happen in the United States? Proponents of the U.S. law, including the Human Rights Campaign, the nation's largest homosexual activist group, scoff at the idea that the new U.S. hate-crimes law could lead to hate-speech prosecutions in the United States.
Indeed, the law itself would seem to preclude such actions: “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 text reads.
It further adds: “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.”
But Stanley said that the U.S. Constitution’s protection of free speech and freedom of religion has been under constant assault by the Left and is not the firewall it once was.
“Some critics of what we’re saying would say, ‘We have a First Amendment. We have a Constitution that protects the right of free speech,’” he said. “The reason why I think that kind of rings hollow is, for one, the Left has never let the Constitution stop it before.
“But, two, if you want a perfect example of where these things can go, look at our university campuses, where they started out as hate-crime provisions and progressed to hate-speech regulations. ADF is waging a battle with universities all across the country that have enacted hate-speech codes in order to silence opposition (to homosexuality.)”
Hate-speech restrictions are already happening, he emphasized.
“This happens in our very own country,” Stanley said. “It’s happening under our very noses in universities all across the country, so it’s not a large leap to say it could certainly progress very quickly in hate-speech regulations here.”
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act is named after University of Wyoming student Matthew Shepard, who was allegedly murdered because he was homosexual, and James Byrd, a black Texas man who was killed by being dragged behind a pick- up truck.
The hate-crimes law was sponsored by the late Sen. Edward Kennedy (D-Mass.).