The news was buzzing yesterday with stories of the apparent infringement of religious freedom in Houston. Ed Whelan offered a report on events in the National Review Online and Mark Movsesian today provided a characteristically nuanced legal account at First Thoughts, which corrects some of the wilder interpretations out there while still indicating that there is a serious cause for concern. The story itself is bizarre and quite disturbing. It involves the the attempt by Houston’s mayor to use legal process to requisition sermons, emails and sundry correspondence of numerous local pastors in what appears to be an attempt to intimidate those of conservative religious convictions.
It is one thing for the law to be used to protect minorities. That is good and proper. It is quite another to use the law to impose ideological conformity. Yet that seems to be where we are moving. In the broader context of legal philosophy, the key conceptual move here has been the increasing importance of ‘hate’ as a meaningful legal category. That has always struck me as problematic. After all, what is the percentage of murders motivated by love for the victim, I wonder? And is a broken arm more broken or a death more final if brought about by an unwanted assault from somebody filled with hatred? Yet ‘hate’ is now perhaps the crucial category, one which allows for a blurring of the ethical and the aesthetic, which has transformed so much thinking not only about crime but also about freedom
Once a crime is exacerbated by it being motivated by ‘hate,’ we have made into a public legal criterion that which is ultimately somewhat subjective and thus at the mercy of whoever has the power to define the word. Then, when we allow speech into the category of ‘hate crime,’ we are in grave danger of potentially criminalizing any public action which falls foul of the tastes of the day. We are not quite at the point in Tudor England when even imagining the death of the king was considered a capital crime, but we are only separated from such by a mere vibration of the vocal chords. Almost anything could, in theory, be defined at some point as a hate crime under such terms. Sexual politics might be the specific issue in Houston but the general principles seem to have been set some time ago.
Perhaps some the Houston pastors have been motivated by ‘hate.’ I have no personal knowledge of any of those involved, nor of what they have said on the relevant issues. Yet, if ‘hate’ is now defined (as it appears to be) as that which manifests itself as dissent from current moral consensus at any point where the most powerful lobby groups of identity politics decide to make their stand, it is not only pastors who need to be concerned. Attitudes to gay marriage may well prove to be merely one minor part in the scenario. There are signs that anyone who thinks biology has any necessary significance for identity, or that the ‘Gents’ is for men and the ‘Ladies’ is for women, could soon find themselves in serious trouble.