Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 3, 2010

Has the First Amendment functioned pedagogically

London's Daily Telegraph is reporting a case of someone's having been arrested for expressing the view that homosexual conduct is morally wrong and sinful. Here is the link: 

http://www.telegraph.co.uk/news/newstopics/religion/7668448/Christian-preacher-arrested-for-saying-homosexuality-is-a-sin.html

I understand that there have been similar cases in other jurisdictions, including Sweden and Canada.  For such things to happen, there must (I assume) be significant support in these jurisdictions for the belief that those Christians, Jews, and others who cling to traditional or conservative beliefs about sexual morality are just like racists and should be treated in just the way that racists are treated.  My impression is that many American gay rights supporters, though not all, hold the same view.  Of course, racists are treated differently in different jurisdictions.  In the U.S. we don't send them to jail, though there are both informal and formal (including legal) disabilities of various types that we impose under certain circumstances.  I suspect that many gay rights activists would enthusiastically support the imposition of these disabilities (especially in areas such as licensing and accreditation) on people and institutions who express the belief that homosexual conduct is immoral.  Am I wrong about that?  Our MoJ resident religious liberty experts probably know the answer on the basis of cases that have already arisen around the country.  Assuming I'm not wrong, is there a significant number of gay rights supporters who would go further and authorize the criminal prohibition of the expression of negative judgments about homosexual conduct as "hate speech"?  I don't think anything like that has happened in the United States, even in San Francisco or Burlington.  Is that because, though there are people who would like to criminalize expression that they regard as bigoted, they believe the courts would strike down the criminalization of speech?  Or is it that Americans (perhaps unlike Canadians, Swedes, or Brits) recoil at the idea of prohibiting the expression of opinions---even opinions they regard as bigoted?  If the latter, is that because the explicit protection of freedom of speech in the text of the Constitution has shaped our civic consciousness and our views about the nature of civil liberty in a certain way?  Is this an area where (for better or worse---our European and Canadian friends might say it's for worse) legal norms have performed a pedagogical function?  Or is there a better explanation?

https://mirrorofjustice.blogs.com/mirrorofjustice/2010/05/has-the-first-amendment-functioned-pedagogically.html

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