Are Thoughts a Crime?
by Bill Sizemore  
Issue 98 - December 26, 2007 

Oregon’s junior U.S. Senator, Gordon Smith, has expressed support for maintaining Thomas Jefferson’s wall of separation between church and state. But has he read Jefferson’s famous Danbury Baptist letter, which is the source of Jefferson’s “separation of church and state” doctrine, a doctrine that has been enthusiastically opined into law by activist federal judges over the last half century or so?

Whatever one thinks of how the judges have interpreted it, Jefferson prefaced his famous quotation about the wall of separation with three sound reasons for wanting to maintain that separation.  One of those reasons was Jefferson’s belief that legislation should only reach as far as a man’s actions and not to his thoughts. 

Here are Jefferson’s exact words to the Danbury Baptists:  “Believing with you that religion is a matter that lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and state. (emphasis added) 

Americans will continue to debate whether Jefferson’s wall was actually intended by the founders, and if so, whether the wall was meant to keep government out of religion or religion out of government.  In any event, the three reasons Jefferson offered for his wall are probably worthy of universal acceptation.

First, a man’s religion is between him and God.  Second, a man does not have to answer for his religious beliefs to anyone else, and finally, the legislative power of government must be limited to a man’s actions, not reaching as far as his opinions.  This final reason is so fundamental to Americanism that Smith’s violation of its principle is inexcusable.

For Senator Smith is pressing hard for adoption of federal hate crimes legislation that would make Thomas Jefferson roll over in his grave.  Among other things, Smith’s bill would increase criminal penalties for a crime when it is determined that the person committing the crime was thinking bad thoughts about the sexual orientation of the person he or she harmed. 

Perhaps Gordon Smith is merely trying to win reelection in Oregon, a moderate to liberal state with an organized and militant gay rights movement.  Perhaps persecution of gays bothers Senator Smith more than most because he is a Mormon and Mormons themselves suffered major persecution in the early decades of their existence.  Perhaps Gordon Smith simply disagrees with Jefferson and thinks government should punish us for what we think. 

Whatever his reason, it is hard to believe that Gordon Smith really believes that an American should be punished more severely for assaulting a gay man than for assaulting a little old lady.  That notion is simply too far-fetched to be seriously embraced, but is nonetheless the practical effect of Smith’s bill.

Regardless of his motivation for sponsoring it, Gordon’s Smith’s hate crimes legislation is about as un-American as any bill I have seen work its way through Congress.  You might even say that Smith’s hate crimes bill is a kind of hate crime itself, a crime against the God-given freedom to think and believe as you wish.  Yes, even the freedom to hate.  After all, whom or what you hate and whom or what you love is between you and God.  It is not Smith’s business and certainly not the business of the federal government.

If a man hits you with a club because you are gay or because he wants your money, it makes no difference.  The crime is that he assaulted you, not that he hated you.  The damage the club did is the business of government, not the opinions of the one who struck you. 

The bottom line is simple:  Assault is already a crime.  Therefore, there is no reason to make the victim’s sexual orientation an issue.

Consider the absurdity of Senator Smith’s stated reason for this legislation.  He said in his press release:  “Congress needs to approve Matthew’s bill so there is protection in the law for every American in every community.”  What is the senator saying?  Is there some place in this country where it is legal to do what was done to Mathew Shepard?  Of course not. 

Without going into the much debated details of the Shepard case, assault is a crime in every state.  Interjecting the opinions and motivations of the attackers into the Shepard case or any other involving a gay or lesbian adds no further protections to gays, except to make assaulting a homosexual more heinous under the law than assaulting a straight person.  Certainly there is no rational basis for doing that unless your goal is not equal rights for gays, but special rights.

Finally, Oregonians represented by Gordon Smith ought to know that their senator has been so enthusiastic in pushing hate crimes legislation in the United States Senate that several gay rights groups in Washington D.C. have endorsed him for reelection.  Smith has become to the national gay rights movement what another senator from Oregon was to the national abortion rights movement a couple of decades ago.  He is a champion for their cause.

The more I have pondered this matter, the more troubled I have become by Smith’s actions.  A person who does not understand the fundamental truth that someone’s thoughts and beliefs are none of the government’s business ought not to be in a position of authority in this nation. 

This is not one of those things on which conservatives may disagree.  This is a betrayal of one of the foundational pillars of Americanism.

Bill Sizemore is president of the Oregon taxpayers Union