Crying “Wolf!” on Gay Marriage

Republicans should remain calm about the implications of gay marriage and free speech and have faith in the extraordinary power of the First Amendment

It's all there in writing
Hal Gordon
On 27 July 2013 03:46

In an interview with the Christian Broadcasting Network last week, Sen. Ted Cruz (R-TX) rehashed the charge that legalizing gay marriage could lead to Christian pastors being “forced” to perform gay nuptials and prosecuted for “hate speech” if they dare to take a literal reading of certain Bible passages on marriage and homosexuality.

“If you look at other nations that have gone down the road towards gay marriage,” said Sen. Cruz, “that’s the next step of where it gets enforced. It gets enforced against Christian pastors who decline to perform gay marriages, who speak out and preach biblical truths on marriage, that has been defined elsewhere as hate speech, as inconsistent with the enlightened view of government. I think there is no doubt that the advocates who are driving this effort in the United States want to see us end up in that same place.”

The senator did not point to any country in particular in making this claim, but rightwing Christian groups have hyped the 2004 case of a Swedish pastor who compared homosexuality to cancer in a sermon and was sentenced to 30 days in prison for violating a Swedish law against inciting hatred towards homosexuals and other protected minorities.

What the Christian rightists do not mention, of course, is that Sweden does not have the same protection for free speech afforded by the First Amendment to the U.S. Constitution. And that’s where their argument breaks down.

Because a Swedish pastor compared homosexuality to cancer in a sermon and got 30 days in jail, we’re supposed to believe that the same thing could happen here. But America is not Sweden. In America, a pastor can proclaim that “God Hates Fags” — not in a sermon delivered in a church, mind you, but on a public street — and be shielded from both criminal and civil liability by the First Amendment. So the U.S. Supreme Court has held, by a majority of eight to one, in the 2011 case of Snyder v. Phelps.

This case involved the notorious Rev. Fred Phelps of the Westboro Baptist Church. On various occasions, Rev. Phelps and a few followers have picketed the funerals of U.S. servicepersons, proclaiming that U.S. combat deaths are God’s judgment on the nation for tolerating homosexuality. Their picket signs have included “God Hates Fags” and “Thank God for Dead Soldiers.”

In 2006, they turned up at the funeral of Matthew Snyder, a U.S. Marine killed in Iraq. Snyder’s father sued Phelps for the intentional infliction of emotional distress and invasion of privacy and won a judgment of nearly $11 million. Phelps appealed, citing the First Amendment. Ultimately, the Supreme Court concurred.

Speaking for the majority, Chief Justice John Roberts declared, “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.”

Thus, notwithstanding the utter hatefulness of the message, and the very real possibility that Phelps’ in-your-face protest might provoke confrontation and even a breach of the peace, the Supreme Court still ruled that proclaiming “God Hates Fags” on a public street is protected speech. With a precedent that strong, what are the odds, do you suppose, of an American pastor being prosecuted for citing Biblical injunctions against homosexuality in a sermon given in a church?

Sen. Ted Cruz is a lawyer. He is in fact a magna cum laude graduate of Harvard Law School. He should know all about Snyder v. Phelps. He should also know that the very notion of prosecuting American pastors for hate speech is absurd.

And the absurdity is becoming obvious. Even if people have never heard of Snyder v. Phelps, they know that a growing number of states have authorized gay marriage and yet not a single pastor has been thrown in jail.

Crying “Wolf!” on gay marriage is a losing issue for Republicans. Maybe they should endorse prosecutions for witchcraft instead.

This article first appeared on Pundit Wire. Hal Gordon, who wrote speeches for the Reagan White House and Gen. Colin Powell, is currently a freelance speechwriter in Houston

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