On the Danger of Unintended Consequences
Last May, I wrote about how the U.S. House of Representatives was considering a bill that would make legally binding the International Holocaust Remembrance Alliance’s working definition of antisemitism. This bill passed the House but has not yet been considered by the Senate. Over the last few years, a number of states have passed similar laws, or are considering them, often at the prompting of Republicans. The consequence of such laws passing is usually that the IHRA’s definition of antisemitism then becomes the basis for determining whether someone’s speech can be considered illegal discrimination or possibly even a hate crime. Understandably, such bills seemed especially important to many people following the October 7th Hamas attack in Israel.
The argument I made then is just as pressing now: there are many things that people might say about Jews (or any other group) that are abhorrent for all sorts of reasons, but these bills are not the right way to deal with this problem. This is the case for many reasons.
First, it punishes speech that is allowed under the U.S. Constitution (and which has been consistently interpreted since the early twentieth century to apply to the individual states as well). The point of the First Amendment was to prevent our government from policing disfavored speech (including, and perhaps especially, disfavored political and religious speech). There will likely be all sorts of social and political consequences for hateful speech, but neither federal nor state-level punishments for non-violent, disfavored speech should be one of said consequences.
Second, as was the case with the national bill, the state bills, in their actual wording, would prohibit the speech of the New Testament itself. The New Testament states that Jewish leaders, with the complicity of the Roman authorities (Mark 15:24; Acts 4:27-28), were indeed responsible for the death of Jesus Christ (see Matthew 27:25, John 18–19, Acts 2:22–24; 5:27–32; 13:27–29; and 1 Thessalonians 2:14–16). These texts do not place guilt on all Jews (then or now) for killing Jesus Christ, but that is beside the point. Simply affirming the wording of these passages would cause one to run afoul of these antisemitism bills. For Christians, and those Americans who recognize Christians’ constitutional freedom to the free exercise of their religion, this is unacceptable.
Oklahoma is one of the most recent states considering legislation that adopts the IHRA’s definition of antisemitism: SB942, SB991, and HB1218. Among other things, SB942, for example, mandates that:
Institutions of higher education and public schools shall integrate the definition of antisemitism provided for in Section 1 [the IHRA’s definition] of this act into their student, faculty, and employee codes of conduct.
And that:
The State Department of Education shall designate a Title VI coordinator dedicated to monitoring antisemitic discrimination and harassment in public schools in this state. All public schools shall electronically report incidents and complaints of antisemitic discrimination and harassment to the Title VI coordinator.
This is a sweeping prerogative. There will be a government agent given the power to monitor all speech in the public schools and universities of the state. If this official, “the Title VI coordinator,”
determines that the public school has not taken the necessary actions to address the complaint within thirty (30) days of receiving the notice, the Department shall report its findings to the United States Department of Education and the United States Department of Justice by making a complaint under Title VI of the Civil Rights Act of 1964.
In other words, the institution will be guilty of having violated the 1964 Civil Rights Act.
Even worse, Oklahoma House Bill 1218, makes the IHRA definition the standard for determining whether criminal discriminatory practices have occurred. An Oklahoma pastor’s sermon from John 18 or Acts 2 could become the basis for proving a discrimination case against him:
In reviewing, investigating, or deciding whether there has been a violation of any policy, law, or regulation prohibiting discriminatory acts under Sections 1101 through 1707 of Title 25 of the Oklahoma Statutes or Section 850 of Title 21 of the Oklahoma Statutes the state shall take into consideration the definition of antisemitism set forth in [the IHRA’s definition].
The rightness or wrongness of what the IHRA’s definition condemns is not the issue with these bills. One can agree with much of what the IHRA’s definition states (as I myself do) and still recognize the problems with bills like the one Oklahoma is considering.
In short, the two main problems with enshrining that definition in law are that constitutionally protected speech is penalized (caveats in the bills notwithstanding) and that Christian teaching itself is penalized. This should not be a partisan issue. The laws needed to deal with violence against Jews (whether in anti-Israel protests on college campuses or elsewhere) already exist: punish those engaging in acts of violence, criminal intimidation, and the like. Punish people, in other words, for committing crimes, not for violating speech codes that themselves are unconstitutional. The rush to try to do something good without considering possible unintended consequences is a perpetual danger. Unfortunately, that is what is happening with the many state bills attempting to enshrine the IHRA’s definition of antisemitism into law.
Image Credit: Unsplash
I agree with much of Dunson’s article. And the problem becomes does criticizing Israel’s government for its treatment of the Palestinians or Lebanon become a perceived violation of the bill that Oklahoma is now considering?
But how this bill affects Christians is a more complicated matter than expressed in the above article. After all, this bill is well supported, if not partially, though unintentionally, grounded in Dispensational Eschatology. And so what we see here is a state-level instance of Christian Nationalism rearing its ugly head. Thus why would a regular contributor to AR, a website that is dedicated to restoring Christendom, if not establishing Christian Nationalism here, be complaining about the bill based on free speech? After all, at least some of the contributors here want laws that punish blasphemy.
Of course, there is another free speech issue. That issue is that if one could be punished for criticizing the government of Israel, how many steps are there to take before criticizing one’s own government becomes a criminal offense?
Finally,, this bill also causes problems for Christians besides the threats it poses to New Testament speech. After all, Dispensationalism is the youngest of the 4 schools of eschatology that are part of the Church. What about those who are Amillennial, Post Millennial, or Pre Millennial but not Dispensational who speak about the nature of the state of Israel?