Sunday, October 18, 2009

"Hate crimes" and religion as an immutable characteristic 

My lefty friends are sending me this link, which seems to show House Minority Leader John Boehner implicitly, at least, taking the position that religion is something that you are born with while sexual orientation is a choice. The context is that he is supporting existing "hate crime" laws but opposing the addition of sexual orientation as a new protected class. As presented, Boehner's position is, of course, idiotic, and nobody with a brain, no matter how conservative, ought to defend it. Whether or not one believes that one's sexual orientation is a choice, or at least can be a choice, there is no question that one's religion is a choice. In the United States, at least, people change their religion with much greater velocity than they change their sexual orientation.

Be that as it may, this alleged gaffe reveals the incoherence of our thinking about religion and the protection of the practice thereof under our various civil rights, employment, and criminal laws. The weak link in Boehner's (supposed) thinking and in the logic underpinning our legal regime is the blurring of the line between religious belief and practice, on the one hand, and religious heritage, on the other. As all people who do not practice or who practice differently than their parents know, we choose beliefs and practices, but often cannot escape our religious heritage. The secular or even converted Europeans of Jewish ancestry who died in the Holocaust are the most tragic and stark example of the difference, but far from unique.

If we thought about this coherently, we would regard religious beliefs and practices as simply another set of opinions with all the protections for free expression available under the Constitution, but with no special protection that we do not assign to any other opinions. So, if we are entitled to mock people who do not believe in climate change, we should also be able to mock people who do not believe in Christ, or the Messenger, or fried green tomatoes. If I am allowed to fire somebody because they have opinions that I believe are asinine, it should not matter if those opinions are grounded in ancient scripture or fortified with incantations. I should be as free to discriminate against a person who will not eat a ham sandwich for reasons of religious beliefs as I am to discriminate against vegans. I should be allowed to ban both burkhas and short-shorts from my office if either or both are inconsistent with the professional image that I want to establish.

But, I do agree that if we are going to outlaw discrimination against race and gender we should also outlaw discrimination against religious heritage. You cannot help it if your mother wears a burkha, and I should not hold that against you as a matter of decency and law. Neither should I discriminate against you because your name is Moish or Mohammad.

There are many advantages to this formulation. Among other things, it would go a long way to clarifying the boundaries of various anti-discrimination laws, particularly with regard to religious practice. Treating religious opinions and speech like any other would sharply improve the quality of First Amendment jurisprudence, make it clear that religious practices in schools are just as privileged as political speech, and sweep away the ridiculous lefty idea that children need more protection from majority religious opinions than majority secular opinions.

Unfortunately, I have little hope that either left or right will accept the distinction between religious beliefs and religious heritage. Too many on the right believe that religion is a calling that cannot be resisted and that it is, in fact, immutable. Too many on the left want to afford special protection for Islamic opinions, and would worry that if we relegated Islam to just another body of opinions it would open the door to discrimination against a class of people who are already "victims" of Western imperialism. Plus the fact that liberals believe that just about any unpleasant behavior ought to be grounds for a lawsuit.

Of course, your results may vary. Release the hounds.


By Blogger JPMcT, at Sun Oct 18, 11:50:00 AM:

The original link argues that Boehner's aide's opinions are adequate fodder to mobilize the leftist hordes in support of the expansion of "hate crime" legislation whilst labelling Republicans a neanderthals.

I would prefer to let the man speak for himself, but that is apparently irrelevent to the tone of the cited blog.

Paraphrasing the Bard...is a gay man LESS DEAD if murdered by a bigot than by a thief? Is the thief LESS wrong than the bigot for committing the act?

I would hope that Mr. Boehner would clarify his position and elevate the dialogue a bit.

Do we REALLY need Orwellian distinctions when felonies are committed?

IF we do, then buckle down for every special interest group on the plaent to add their names to the list until we are ALL once again equally represented...

...everybody, I guess, except white, Christian, heterosexual males.  

By Anonymous Dennis, at Sun Oct 18, 06:00:00 PM:

Or maybe the aide mispoke or doesn't know what immutable means. Occam's razor would suggest that that might be the place to look first for a clarification.  

By Anonymous Anonymous, at Sun Oct 18, 09:31:00 PM:

Once an activist group gets going they don't ever stop. There's always another demand.

Once upon a time, there was legitimate concern that local prosecutors and juries would excuse hate crimes. You really can't say that today. The killers of Matthew Shepard and James Byrd got the max.

Getting these laws passed is mostly an exercise in showing political clout. Use it or lose it.

It has the second order effect of creating new federal crimes in areas that were previously left to the states. I doubt federal prosecutors will bring many of these cases, except to grandstand.

It has the third order effect of vitiating the double jeopardy provision of the Constitution, as if anyone still cared about that inconvenient document.

Link, over  

By Anonymous Anonymous, at Sun Oct 18, 09:45:00 PM:

Reading the original story makes it sound as if he simply doesn't want another protected class. That may be all there is to it, since he doesn't expand on his staff's straightforward comment that he doesn't support the legislation.

As to your post, TH, others may have more pertinent comments.  

By Anonymous Anonymous, at Mon Oct 19, 05:12:00 AM:

As my constitutional law professor would have said, you've hit the nail with your head.  

By Anonymous tyree, at Mon Oct 19, 08:18:00 AM:

In the quoted story, the line "In other words, religion is a trait you're born with" is supplied by the writer, not Boehner's aide.

It appears to be another case of liberals trying to defame conservatives by making things up. It's not like it hasn't happened before. Many times. Recently.  

By Blogger Georgfelis, at Mon Oct 19, 10:11:00 AM:

At its roots, the argument comes down to Predestination vs Free Will. Is it a morally and legally accepted practice to discriminate against somebody with a trait that they are unable to change? (i.e. red hair, large noses, British teeth) If you run a business, you clash with that every day. No, our bank tellers are not to wear obvious satanic tattoos on their face and sport multiple obvious piercings. All waitress/waiters are required to maintain personal hygiene and take a shower once in a while. No, you may not bring your pot-bellied pig to work with you in the kitchen, no matter how personally de-stressed he makes you feel. No, our cabbies are required to provide service to blind people with guide dogs or who are carrying what might be liquor.

Somewhere there is a lawyer willing to argue each of these cases against a business owner. Hopefully he winds up with a secretary with all of the above.  

By Anonymous Anonymous, at Mon Oct 19, 10:40:00 AM:

If they just add socio-economic status of the victim to the hate crimes legislation, I believe they will have covered all of the reasons for committing a crime.  

By Anonymous lumpy, at Tue Oct 20, 07:24:00 PM:

I don't think we should have protected classes. I think hate crimes are thought crimes in the Orwellian sense of the word; they violate the right to our own thoughts and emotions.

If we are going to have hate crimes legislation, it should protect everyone equally. Any crime committed primarily out of malice, rather than greed or other motives, should be a hate crime, regardless of why there was malice (racism, sexism, etc.).  

By Anonymous lumpy, at Tue Oct 20, 07:28:00 PM:

I should have thrown something like 'however,' into that. Alas.  

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