Pastor Allen Esses of YesJesusIsLord.org has proposed an amendment to Section 4 of Article I of the California Constitution, which guarantees "free exercise and enjoyment of religion without discrimination or preference." It has been cleared for circulation by the Attorney General.
Under Pastor Esses' amendment, a clause that exempts "acts that are licentious or inconsistent with the peace or safety of the State" would be struck from the constitution, essentially allowing any view to be protected so long as it's expressed in the name of God. This would include sermons and projects aimed to disenfranchise or libel specific demographics.
The initiative states:
"We...do submit that it is not a crime, hate crime or unlawful for a person to use any part of the Bible's content as authority: and do submit that a person using any part of the Bible's content as authority may freely speak, pray, write, discuss, publish, preach, teach, hear, share his or her faith, to proclaim Jesus Christ is Lord, to the glory of God the father."
A complete list of concepts upon which Pastor Esses seeks the freedom to expound range from astrology and witchcraft to sexual orientation and abortion.
The pastor's amendment clashes hard with federally defined limits on the scope of religious legislation. Based on the 1971 Lemon v. Kurtzman decision on religiously-motivated public school programs, the Supreme Court today uses three indicators known as the "Lemon Tests" to determine if a law violates the constitutional church/state separation:
- Must have some secular (non-religious) purpose
- Must neither promote or inhibit the practice of religion
- Must not foster "an excessive government entanglement with religion"
The proposed initiative, depending on the definition of "entanglement," appears to violate all three. The only relationship it holds with secularity is to condemn it. The amendment is both promoting the practice of one religion while advocating the inhibition of virtually any other one. While "entanglement" is a vague term, the broad and uncategorized nature of proposed opinions to be protected by the First Amendment means that it may be difficult to find a more entangled example of potential overreach.
This scattered proposal raises a difficult question: when does an opinion become hate speech? In America it's typified by racial groups like the KKK, but phobic rhetoric from a congregation is not unprecedented. Even concerning the infamous Westboro Baptist Church, the Supreme Court ruled that their provocative funeral pickets “were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.”
In July, a petition to officially classify Westboro as a hate group reached 367,000 signatures, but failed when the White House made clear no such list existed. Legally, "hate speech" must consist of the following: a) intend to stir hostility against a group, b) be likely to incite hostility, c) be abusive and d) occur in the public arena. Prosecutors are entirely dependent on the presence or likelihood of a hate crime to restrict hate speech.
Not only does the pastor anticipate government speech restrictions that are unlikely to come unless he incites violence, but he desires a theological discussion that has no place in the public policy arena.
The California constitution cannot grant protections for abusive speech using the "Bible's content as authority." The pastor is seeking to exploit and expand First Amendment rights, establishing an unconstitutional exemption for potentially abusive speech.
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