First, it seems to me that religion continues to become an increasingly polarizing factor in our society:  28%of respondents said that Americans have “too little” religious freedom, up from 24% last year.  Meanwhile, only 62% of respondent thought that Americans’ religious freedom is “about right”—the lowest level since the survey started in 1997.

Perhaps more significantly, 29% of respondents said that the First Amendment was not intended to protect “extreme” or “fringe” religious groups—the highest number since the survey started.  And only 54% (the lowest number in the history of the survey) thought that religious freedom is supposed to apply equally to all religious groups.

The growing religious rift is even more apparently when questions on religion are compared with similar questions on non-religious topics.  Specifically, 42% percent of respondents either strongly or mildly agreed that people shouldn’t be allowed to make public statements that are offensive to someone else’s religion.  In contrast, only 33% of respondents thought that songs with offensive lyrics should be restricted.

Second, after carefully reviewing the results of the survey, I can’t help but wonder who lawmakers are catering to when then pass laws that restrict adult businesses and sexually explicit speech.  For the most part, the majority of the responses appear to be moderate or downright progressive.  There certainly doesn’t seem to be an overwhelming majority in favor of more censorship.

Could it be that the lawmakers who are constantly proposing new censorship measures and adult business restrictions are cynically pandering to a pro-censorship minority because know that those people will vote for them on a single issue?

James Dobson smiles as he thinks about how the First Amendment only applies to him and his friends. His solid gold tie was subsidized by taxpayers' money by virtue of the tax-free status of his "ministry."

Today was Pulpit Freedom Sunday, when pastors around the country defied the IRS by endorsing political candidates during their sermons.  The event is sponsored by the Alliance Defense Fund, which appears to be formed of the usual suspects of conservative Christianity.  The details of the event can be found in the organization’s white paper, which actually does a pretty good job of setting forth the issues involved.

In a nutshell, since 1954 the U.S. Tax Code has prohibited non-profit organizations from endorsing candidates for political office if they want to maintain their tax free status.  Since churches are non-profits under the Tax Code, pastors cannot endorse candidates from the pulpit.  The ADF believes that these provisions of the tax code violate churches’ rights to free speech and free exercise of religion, so they are apparently planning to create a test case.

The ADF’s position is interesting, but the legal merits are dubious.  First, churches are not constitutionally entitled to tax free status.  While it might be a problem for the government to create a tax that only applies to churches, it would not run afoul of the First Amendment if churches were subjected to general taxes.  For example, church bookstores have to charge sales tax on the items that they sell—just like any other business–and it’s not unconstitutional.

Because churches are not contitutionally entitled to tax-free status (at least under the U.S. Constitution, some states have constitutional prohibitions against taxing religious organizations), the Supreme Court would probably hold that it does not violate the Constitution for the IRS to require churches to follow the same rules as any other organization that wants to avoid paying federal taxes.  In 2002, the U.S. Supreme Court held in McKune v. Lile that a government can require a people to voluntarily waive some or all of their constitutional rights in order to obtain a benefit to which they would not otherwise be entitled.

I probably have more insight on McKune that most constitutional law scholars.  It was argued to the Supreme Court by my friend Matt Wiltanger, and I helped with the brief to the Tenth Circuit.  In addition, I was lead counsel in the U.S. District Court in a companion case, Searcy v. Simmons, before I changed firms and moved to Dallas.  The Supreme Court’s reasoning in McKune makes no sense to me at all—I don’t see why it’s not acceptable for the government to use a stick to take away your constitutional rights, but it’s perfectly OK to use a carrot.  Nonetheless, McKune is the law, and I think that the ADF will have a hard time overcoming it.

On a personal note, I don’t really care that much whether ministers are allowed to expressly endorse candidates from the pulpit.  It’s not like there’s some mystery about which candidates conservative churches want their flocks to vote for.  (Hint: they’re the ones with the “R” after their names on the ballot).  I think that U.S. churches are rapidly diluting their brand and sullying their reputations with their heavy involvement in partisan politics, but that’s their choice.

I find it ironic and offensive, however, that the same churches and people who have devoted decades to suppressing and marginalizing the First Amendment right to free speech are now complaining their right to free speech is being supressed and marginalized.  Even more disgusting, many of these folks who are complaining that their exercise of free speech could subject them to the same taxes that are paid by everyone else, have recently led the movement to impose special taxes on other people simply for exercising their right to free speech.

Here’s an interesting quote that’s amazingly relevant, despite being over 2,000 years old:

You’re hopeless, you religion scholars and Pharisees! Frauds! You keep meticulous account books, tithing on every nickel and dime you get, but on the meat of God’s Law, things like fairness and compassion and commitment—the absolute basics!—you carelessly take it or leave it. Careful bookkeeping is commendable, but the basics are required. Do you have any idea how silly you look, writing a life story that’s wrong from start to finish, nitpicking over commas and semicolons?

Yeah, James Dobson, he was probably talking about you.

Yakima has apparently brought the idea up again, although they are at least planning to grandfather existing businesses.  Grandfathering is not a perfect solution, however, because it will probably have adverse effects on the abilities of those business to expand or transfer their ownership.

North Platte has recently passed its law.  The North Platte situation seems more serious because it apparently wouldn’t make any exceptions for existing businesses, and the restrictions on being within 1,000 feet of a residence could directly affect one family’s home-based business.

Litigation is likely to ensue, so I’m offering my free and completely unsolicited advice to both sides.

For business owners:

• Make sure that your lawyer has read all of the briefings in the Doctor John’s v. City of Roy, Utah and that your lawyer does a better job than Doctor John’s lawyers did.
• If your business has been open for some time and has a history, do everything you can to keep the city from relying on studies of businesses in other cities.  The secondary effects of your business of your city can be scientifically measured.  It doesn’t make any sense to rely on studies of other businesses located somewhere else
• Hire a good expert early.  Yes, they are expensive.  But losing your case is even more expensive.

For the city council members

Think about this carefully.  Do you really want to go through long hours of depositions and expend tens of thousands of the city’s already inadequate funds to appease a few people who believe that sexy lingerie and vibrators are going to corrupt their children?  They have no facts or credible studies on their side, while the businesses that you are trying to get rid of have an established history of not causing problems, boosting the local economy, and helping some of your citizens support their families.

Even if you win this litigation, your town will lose.

Oh, and read Dr. Marty Klein’s book America’s War on Sex.   It will really make you wonder why you ever thought these ordinances were a good idea.

Her take on blogs is especially interesting.  She seems to believe that the populist nature of blogs is something that the Founding Fathers never anticipated when they put freedom of speech and freedom of the press in the First Amendment.  Now that it has become so simple to publish your own blog, she reasons, the First Amendment has unworkable.

Here’s the problem with that reasoning: when the First Amendment was written, newspapers were everywhere.  They were, in fact, the dominant form of public discourse.  Any yahoo with an opinion published a newspaper and sold it on the street corner for a penny.  Sound familiar?  Yeah, it reminded me of blogs, too.  What’s more, the Founding Fathers clearly wanted to encourage this type of discourse as much as possible, which is why they wrote the First Amendment.  I could fill up a blog entry with quotes about free speech by the Founding Fathers, but here’s a particularly good one from Thomas Jefferson:

The only security of all is in a free press. The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary, to keep the waters pure.

Of course, no attack on free speech would be complete without an appeal to the horrible effects of internet pornography.  Mary Belk’s primary method of attack in the unsubstantiated anecdote about a “daughter of a friend.”  According to Belk, this precious school girl was doing a school report on Louisa May Alcott innocently typed the words “Little Women” into an internet search engine and was accosted by child pornography.  Really?  Let’s look at the holes in this claim more closely:

• I typed “Little Women” into Google with safe search turned off, and I got page after page of web pages about…Louisa May Alcott.  Not only did I not get any kiddie porn, I didn’t even any porn sites within the first 20 pages (I know, I was surprised, too).
• I’m sure that there is child pornography on the internet, but I don’t think that you can find it just by typing a couple of search words into Google.  The people who traffic in kiddie porn know that what they are doing is illegal.  They aren’t going to make it easy for law enforcement to find them.
• Even if, by some quirk of the Mighty Google Fairy, somebody were to find child pornography on Google by doing an innocent search, I don’t think that they aren’t going to be able to right to the kiddie porn by just clicking on the link.  I don’t think that those who traffic in that sort of stuff are likely to just give out free samples.  When you are selling a product that’s likely to garner you some serious prison time, you probably ask for payment up front before you supply the goods.
• If nothing else, Belk’s over-the-top, clutch-the-pearls telling of the story makes it unbelieveable.  It’s not just that this little girl was unwittingly exposed to pornography, she was exposed to child pornography.  It’s hard to imagine how this story could be any more melodramatic and still retain any credibility.

So, why am I wasting my time trashin this opinion piece in the Opelika-Auburn News?  The main reason is because this kind of half-baked, lazy analysis of First Amendment issues is not all that unusual, especially in the South.  Free speech scares people, and it really scares people who are opposed to change.

Next time you read an editorial about the “dangers of pornography” or see a television news piece about “anti-American activists,” ask yourself a question:  Have they really presented any reasons for me to be worried about this, or are they just expecting me to be worried because it’s different than what I’m used to?

Brigham Young on Sexual Propriety

I have a soft spot for the 10th Circuit.  I started practicing in Kansas, which is in the 10th, and I spent several years reading opinions that came out of Denver.  It was always my impression that the 10th Circuit, while not particularly famous for spectacular legal reasoning, has more than its fair share of common sense.  A decision that came out last week, however, has me rethinking my opinion.

The case is Doctor John’s v. Roy City, Utah, and it involves a store that sold adult videos, books and novelties that opened near Salt Lake City in a town that, at the time, didn’t have any specific statutes governing adult businesses.  After the store opened, however, the city enacted a special licensing process for SOBs and asked the store to file for a new business permit.

Doctor John’s didn’t like the idea of having to reapply for the more restrictve SOB license, so it sued in Federal Court, arguing that the statute was unconstitutionally vague and was an impermissible restriction on free speech.  In its decision, the 10th Circuit held that the restrictions on SOBs were “content neutral” and that the city had an “significant interest” that was served by the “narrowly tailored” licensing requirements imposed by the city.  (These are some great legal phrases.  If you want to see my explanations for them, you can read it here.)

I am disappointed with the 10th Circuit’s take on all three issues.  First, I can’t buy the idea that restrictions on businesses that sell sexually-explicit materials are “content neutral.”  Yes, I know that virtually all of the circuits have held the same thing, but that doesn’t make it logical.  The restriction does not apply to all books or all videos.  It only applies to books and videos with sexual content.  If a city passed a law restricting stores that sold religious books and videos, no one would call the law “content neutral.” But since the content involved is sex, courts engage in the delightful fiction that the law doesn’t discriminate based on content.

The “content neutral” prong is annoying, but not unexpected.  The 10th Circuit’s ruling on the other two prongs, however is pretty alarming.  In order to justify its licensing restrictions, the city relied on the old saw that sexually oriented businesses have the “secondary effect” of “increasing crime in the area.”  The big problem with this position, however, is that there are exactly zero studies that deal with the alleged secondary effects of “take away” stores that only sell items for use off the premises.

Doctor John’s briefing pointed the absence of any studies on its type of store, but, in a shocking move, the 10th Circuit inexplicably ruled that the facial inapplicability of the city’s study didn’t matter.  Instead, the Court said, because the city had some studies about the alleged effects of SOBs (of other types, in other cities) it was up to Doctor John’s to prove that the studies didn’t apply.  So much for my theory that the 10th Circuit is a court that uses common sense.

First of all, we are talking about the First Amendment.  Since the city is seeking to restrict speech, it should be the city’s burden to prove that the studies that it is relying on apply to Doctor John’s.  Secondly, the “secondary effects” studies have always been based on the idea that SOBs attract antisocial men to the area and then induce them to commit crimes by whipping them into a sexual frenzy by displaying providing sexual entertainment.  Both sides admitted that Doctor John’s did not provide on site entertainment, and Doctor John’s presented evidence that almost half of its customers were women.  On its face, this evidence makes a pretty strong case that the studies don’t apply to Doctor John’s.

To understand the craziness of the 10th Circuit reasoning, let’s take sex out of the equation.  Suppose that Blockbuster wants to open a store in a shopping center, but the city’s zoning ordinances don’t allow any “purveyors of motion picture entertainment” to be located in retail areas.  Blockbuster challenges the ordinance in court, and the city defends itself by pointing to studies showing that movie theatres cause traffic congestion and should be located away from retail areas.

No reasonable court would ever expect Blockbuster to “prove” that the movie theatre studies don’t apply to its retail video rental stores.  But that is essentially what the 10th Circuit did to Doctor John’s.

My last complaint about with the 10th Circuit’s decision is that it assumes—without any support that I can find—that the proposed restrictions in the city’s licensing requirements are narrowly tailored to address concerns about the secondary effects of adult businesses.  The licensing requirements, however, consist primarily of restrictions on operating hours and requirements that the owner and employees obtain licenses from the city.  Even if we assume—as the “studies” cited by the city claim—that the customers of SOBs are more likely to commit crimes in the area, licensing owners and employees would not have any effect on the actions of customers.  I don’t see how a statute can be “narrowly tailored” when it doesn’t even address the alleged secondary effect that it is based on.

Before I am too hard on the 10th Circuit, I have to add that the briefing in the trial court in this case was not stellar.  I logged onto Pacer (the Federal Courts’ electronic filing system) and tried to follow the summary judgment filings in the case, and I eventually gave up.  It does not appear that Doctor John’s ever filed an expert witness report (which would be a necessity in this case), and I counted at least three different motions for summary judgment (which is a lot for any case, and certainly a lot when you are already representing an unpopular client).  Bad briefing makes bad law, and judges aren’t going to overlook sloppy lawyering when you represent an adult business.

With apologies to Martin Niemöller:

When they came for the pornographers,
I remained silent;
Portraying sex is dirty and wrong, and obscenity should be eradicated.

When they stopped teachers from teaching birth control in school,
I remained silent;
I thought protecting children from knowing about sex would keep them pure.

When they detained and tortured “enemy combatants,”
I did not speak out;
I didn’t think it was wrong to sacrifice their rights so that I could feel a little safer.

When they came for the journalists and the bloggers,
I remained silent;
Those people all hated America anyway.

When they came for me,
No one was allowed to speak out.

Recently, however, I’ve had some conversations in which it became clear to me that people jump to conclusions about my religious beliefs (or lack thereof) based on the industry that I have chosen to represent.  Afterward, when I thought about theses conversations, I realized that they parallel—in many ways—the rash of legal challenges that are currently facing adult retailers and other adult businesses.  I also realized that the time has come for me to share some personal information about myself.

Who Is Brent E. Dyer

My Religious Upbringing and Training

My parents both graduated from Bethany Nazarene College (now Southern Nazarene University) in the late 1960s and moved to Minneapolis, Kansas, where my father had been hired as the minister for the (very small) Nazarene Church there.  For those who are unfamiliar with the Church of the Nazarene, it’s a conservative splinter from the Methodist Church that is about 100 years old.  In terms of moral teaching and most theological issues, the Church of the Nazarene is similar to the Southern Baptist Convention.

I was born in 1970.  A few years later, my father decided that the ministry wasn’t right for him, and he became a social worker.  Although we still lived in Minneapolis, we started attending a Wesleyan Church, where we stayed until we moved to Lawrence, Kansas in 1980.  In Lawrence, my family went back to the Church of the Nazarene.  I was saved and baptized in that church, and I was a member there until my mid-20s.

In 1988, I went to college at Seattle Pacific University, which is a conservative Free Methodist college.  I attended there for a year and a half (until I ran out of money).  During my last semester there, I took the required course on the Old Testament, which was taught by Dr. Frank Spina.  At the time, I hated the class, mostly because Professor Spina required to read the entire Old Testament, word for word.  Then, after we had read the assigned text for the class, we were required to discuss what we had read.   We were not allowed to discuss what other people had told us in the past about what we read or how what we read could be interpreted to be consistent with what we already believed.  We were only allowed to talk about the actual words that we had read in that day’s assignment.  Because I had been raised to be very conservative theologically, being forced to actually confront what was written in the Old Testament was not a pleasant experience.  Ultimately, however, the class had  a significant impact on my religious beliefs and my approach to the law.

In 1993, I moved to Dallas and became an Episcopalian.  I want to point out that I didn’t become an Episcopalian because I had become theologically liberal.  I joined the Episcopal church mainly because I couldn’t stand the music in the Church of the Nazarene.  The Episcopal church that I joined is well-known as being one of the most traditional, orthodox churches in the U.S.  Even after I became an Episcopalian, I continued to be very conservative theologically (although not politically).  So, to the extent that anyone wants to blame the Episcopal church for “perverting” me, they are way off base.

From 1994 to 1997, I went to law school at Southern Methodist University in Dallas.  One of the classes that I took was “Law and Sexuality,” which was taught by Jane Dolkart—an openly gay professor who had a reputation of being anti-Christian.  I was surprised to find that Professor Dolkart, while opinionated and obviously very liberal, did not strike me as particularly anti-Christian.  In fact, she seemed more than happy to listen to my “Christian” perspective on sexual legal issues, as long as I used more to back them up than Bible verses.

Legally speaking, the Law and Sexuality class didn’t have much substance.  It primarily was focused on gay-rights (an important issue, but one that only directly affects about 10% of the population) and ivory-tower-academic subjects (like “societal misconceptions about black sexuality” and “switching the burden of proof for consent in rape prosecutions”).  But I did get something significant out of the class—it forced me to confront my personal, religion-based prejudices against sex and question whether, from a legal point of view, sex really should be given the second-class citizen treatment that it has received from state, local, and federal governments.

Major Upheaval and Rethinking Sexuality (and the Law).

In the Summer of 2003, my first wife and I got divorced.  Because we both came from Christian families, there was a lot of pseudo-theological posturing that went on, much of it centering around sexual issues.  As a result, I started taking a hard look at some of the “traditional” Christian positions that I had always accepted at face value from those who hold themselves out as the “authorities” on these issues.

The primary catalyst for my reevaluation of Christian views on “sexual” sins was my realization that the traditional Christian view of divorce is completely nonsensical.  In a nutshell, most conservative churches believe some variation of the following: ”If you get divorced because the other person has committed adultery, you are free to remarry.  If you get divorced for some reason other than adultery, then you can never get remarried because you will be committing a sin every single time you have sex with your new spouse.”

To put the absurdity of this view in perspective, imagine this hypothetical scenario: two people (Candidate A and Candidate B) want to serve on the board of their local church.  Both of them have been married twice.  Candidate A got divorced several years ago because he and his wife were incompatible, and he has now been remarried and faithful for the last 10 years.  Candidate B’s first marriage also ended several years ago—when Candidate B brutally murdered his wife.  After serving his prison sentence, Candidate B repented and was remarried six months ago. Now, which of these two candidates is the best choice for the church board?

If you said “Candidate A,” you clearly were not raised in Evangelical Christian tradition.  You see, in many evangelical churches, because Candidate A was divorced for a reason other than adultery and has now remarried, he’s is living in a “state of sin” and can’t hold any board positions.  Candidate B, on the other hand, was smart enough to dispose of his first wife by killing her, and, therefore, he is eligible for the board because he has repented of his past sins and is now living a “righteous” life.

This result is obviously ridiculous, so many loopholes have sprung up to make divorces acceptable.  Many of them are centered around whether the original marriage involved a couple who were “unequally yoked.”  Essentially, this means that one spouse can justify a divorce in “the eyes of God” (read, “in the eyes of the church elders”) by slandering the other spouse and insisting that he or she was not a “true believer” and, therefore, the marriage never should have happened in the first place.  Strangely, in this analysis, it doesn’t matter whether the spouse seeking to justify the divorce knew that the other person was a heathen at the time of the marriage.

I could probably write a long, complicated post just on the logical and theological perversities of the modern Christian view of divorce.  The underlying theme, however, is really pretty simple.  In modern, conservative Christian thought, almost nothing is worse than having more than one sexual partner during your lifetime.  It may sound like I’m exaggerating, but I’m really not.  I have sat in revival meetings a listened to evangelists describe years of alcohol abuse, thievery, drug abuse, and even murder with an almost prideful attitude—they love to talk about have bad they were before God saved them.  Rarely, however, have I ever heard an evangelist talk about how many sexual partners he had prior to being saved.  And, on the few occasions when that topic has come up, the evangelist aways discusses the past sexual history in hushed, shameful tones.

I am at a loss to explain why conservative Christianity treats sex differently than every other form of human activity.  Growing up, I frequently heard sermons and lectures by people like Josh McDowell and James Dobson in which Christian teenagers were warned that having premarital sex, especially with someone whom they didn’t end up marrying, would cause emotional and psychological scars that would haunt them forever.  In my experience, this fervent crusading against sex surpasses anything else in evangelical Christianity.  Drugs, alcohol, spousal abuse, white collar crime, child abuse, dishonesty, environmental distruction, and materialism are all moral issues that are at least as serious extramarital sex, but none of them are the object of prolonged campaigns by evangelicals.  An certainly none of them have spawned multi-million dollar (billion dollar?) cottage industries like the abstinence/anti-pornography/sex-addiction movements that seem to be proliferating through the evangelical movement.

When I got divorced in 2003, I started to examine all of these issues, and I discovered something. First of all, I couldn’t buy into the anti-sex Christian position anymore, for a variety of reasons.  Chiefly, I saw how miserable those sexual prohibitions had made me and many of those whom I had grown up with.  I couldn’t think of a single religious teenager whom I had grown up with who hadn’t been victimized by the rampant sexual shame-mongering that went on in the church.  All of us were either having sex (which was a sin), wanting to have sex (which was also a sin), or some combination of the two (two sins for the price of one!).

Now that I’m older and no longer feel the need to defer to the sacred cows of my upbringing, I discovered some new things about the Bible.  And I’ve developed the courage to say some of the things that I always thought, but was too afraid to say.  Essentially, I think that conservative Christian leaders are way off base on fundamental issues of sexuality.  They are twisting the Bible to support a blatant anti-sex agenda and abusing the law to try to inflict that agenda on the entire country.  To accomplish these goals, they are using three techniques that I call “The Big Error,”  “The Big Lie,” and “The Big Scam.”

The Big Error

Bear with me for a moment, because the first part of this is going to be a little technical.

In 1205, an Anglican professor in Paris named Stephen Langton added chapter divisions to the Bible.  In 1551, Robert Estienne, a French Printer, added verses to the Bible.  Both of these additions were made for the sake of convenience, and the divisions that the two men made in the biblical text have frequently been criticized as being little better than arbitrary.  Nonetheless, especially in modern times, Christians have frequently relied on chapter and verse divisions as guides to their interpretation.

It is not at all uncommon to see Christian Bible “teachers” chain together multiple citations to one or two verse passages to support some theological “revelation.”  It is simply beyond absurd to read the Bible this way.  There is no reason to think that the Bible is supposed to be interpreted as a type of secret code—with its true meaning found only by stringing together far-flung snippets chosen almost randomly.

The reality is that the Bible—like any significant work of literature—cannot be interpreted by reading short, selected chunks.  The misguided reliance on versification, however, has caused this to be the predominant method of modern biblical interpretation—at least by Evangelicals.  As a result, there’s a lot of very bad theology out there, and the problem seems to be getting worse.

The Big Error is, in my opinion, one of the most egregious examples of bad doctrine created by versification.  The verses in question are Matthew 5:27-28:

You have heard that it was said, ‘Do not commit adultery.’ But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart.

The widely accepted interpretation of this passage is that having sexual thoughts about anyone who is not your spouse is a sin.  And if you just read those two verses, that interpretation seems reasonable.  The problem is that those two verses fit in a much larger context.

The verses in question are part of the Sermon on the Mount, which starts with the Beatitudes (“Blessed are those who…”).  Jesus then continues by criticizing the Pharisees (one of his favorite activities) for slavishly following their technical reading of the law and thinking that following the rules made them righteous.  To illustrate his criticism, Jesus gives two examples of how merely “following the rules” doesn’t necessarily make you moral.  In the first example, Jesus equates cursing someone with murder.  Jesus follows that example with the two verses about committing “adultery in your heart.”  He concludes by admonishing his listeners to eschew easy divorces, be considered so honest that it is not necessary to take an oath, go the extra mile for others, love their enemies, care for the needy, and generally do good for others.

The central theme of the entire sermon on the mount is that merely following the rules does not make someone moral.  Within this context, the statements about not cursing your brother or “lusting in your heart” take on a much different (and reasonable meaning).  Jesus is not really saying that having thoughts of murder is the same as committing murder or that having sexual thoughts is the same as having sex.  He is saying that if the only thing keeping you from committing murder or adultery is your fear of breaking the rules, you really aren’t very righteous—you are just afraid.

I think that Jesus’s statements about murder and adultery are among the most profound concepts in the Bible.  Arguably, the message is a simpler expression of the same ideas that Lawrence Kohlberg put in his stages of moral development almost 2,000 years later.  Unfortunately, Evangelicals (and quite a few other Christian groups) have subverted this profound insight and turned it into a facile (and ridiculous) idea that “thinking sexy thoughts is a sin.”

This misreading of the Sermon on Mount has led to at least two made-up sexual sins: (1) sexual imagery (written or visual) is sinful because it incites lust and (2) masturbation is sinful because it is a lustful activity.  It is these two prohibitions—which flow logically from the common misreading of Matthew 5:27-28—that demonstrate the error in this interpretation of Jesus words.

Archeological records ranging from ancient Egypt to Pompeii demonstrate that sexual imagery existed in the ancient world.  Even the Song of Solomon has some pretty explicit imagery, for those who have the patience to unravel it.  Given the fact that written and visual sexual imagery existed in the ancient world, it seems disingenuous for Christians to claim that such imagery is “sinful” when neither the Old Testament nor the New Testament condemn it and, in fact, one book of the Old Testament actually engages in it.

Evangelicalism’s prohibition against masturbation is even more ridiculous.  Masturbation has undeniably been around for all of human history, and the Bible does not contain one word condemning or even criticizing masturbation.  Nonetheless, Evangelical groups like XXX Church routinely call masturbation a sin.  It is the height of arrogance (and, I would even argue, heretical) for any Christian group to decide that it has the authority to make up sins that aren’t in the Bible.

The Big Lie

Conservative Christianity’s views on sexual imagery and masturbation are just symptoms of a bigger syndrome that has been plaguing Christianity since St. Augustine.  Before he converted to Christianity in the 5th Century, Augustine was a Manichean—a group that believed, among other things, that the “flesh” was evil and the “spirit” was good.  Even after he converted, however, Augustine continued to hold many Manichean beliefs—including an almost obsessive belief that sexual desire and pleasure are the ultimate expressions of evil.

It is almost impossible to underestimate St. Augustine’s influence on Christianity, and the anti-sex sentiment that pervades Evangelicalism and Catholicism is the direct result of his writings about struggling with “lust of the flesh.”  It’s not that Augustine was the first of the Christian superprudes, but he is certainly the most well known and the most influential.

Christianity’s disapproval of sex has resulted in the Big Lie that the Bible contains dozens of sexual prohibitions.  Many churches teach (and no, I’m not making this up) that vaginal intercourse between a husband and wife is the only form of acceptable sexual behavior.  According to these groups, the Bible prohibits masturbation, oral sex, anal sex, and any sex outside of marriage.

The problem is that the Bible doesn’t have any explicit prohibitions against most of the sexual behaviors that conservative Christians love to condemn—including premarital sex.

First, let’s start with the easy ones.  The Bible doesn’t say a single word about masturbation, oral sex, anal sex, or just about any other type of sexual practice that conservative Christians love to condemn as “sinful.”  Therefore, the only way to manufacture biblical prohibitions against these practices is to engage in a lot of intellectual dishonesty and distortion.

The most common argument made by the proponents of this position is to claim that the biblical prohibitions against these practices are “between the lines.”  Apparently, they believe that God was simply too classy to include explicit prohibitions against these “perversions” and, therefore, they were encoded in the Bible.  There’s just one problem.  The Old Testament contains explicit prohibitions against a whole bunch of sexual practices, including incest and bestiality.  In light of the fact that God didn’t seem to have a problem with specifically condemning these acts, it’s just not believeable to argue that all of the other sexual “perversions” that Christians love to prohbit were omitted because of some type of divine modesty.

Premarital sex is a little more complicated, but not much.  Basically, there are two arguments that are used to justify a biblical prohibition on premarital sex.

The first argument is based on the use of the liberal condemnation of “fornication” in the King James version of the Bible.  There are about 35 instances in the King James Bible of “fornication” being condemned—either directly or through implication—as a sin.  The word fornication does not appear, however, in any modern translations of the Bible.  Instead, in places where the King James Version uses “fornication,” the newer, more accurate translations use “sexual immorality.”  Obviously, the use of the phrase “sexual immorality” just begs the question—what exactly is sexual immorality.

The second argument relies on references in the Old Testament to virginity—specifically with regard to women and marriage.  The books of Leviticus and Deuteronomy have quite a few references to female purity.  For example, if a man married a woman whom he thought was a virgin, and she turned out not to be, he had the right to immediately divorce her.  If a man had sex in town with a virgin who is betrothed to another man, then they were both to be put to death—him because he had sex with another man’s future wife, and her because she didn’t cry rape.  And if a man has sex with a virgin who is not betrothed, he has to pay her father fifty pieces of silver.

Do you detect a theme?  The Old Testament laws pertaining to premarital sex only applied to women.  There are no prohibitions against men having sex before marriage.  And the penalties for having sex with a female virgin are all based on property concerns.  In ancient Hebrew law, unwed women who lived at home were the property of their fathers, and married or betrothed women were the property of their husbands.  This isn’t exactly a principle that most modern people, even Christians, follow—just like most people don’t follow the Old Testament’s prohibitions against eating pork and shellfish.

Aside from the property-based protection of women’s virginity, the Bible doesn’t have any clear prohibition against premarital sex.  Instead, the Bible condemns the broader, more malleable concept of “sexual immorality.”  The Big Lie, then, is the insistence that the Bible universally condemns certain sexual behaviors. The truth is more complicated.

Certainly, the Bible requires Christians to be sexually moral—or perhaps a more appropriate description might be “sexually ethical”—but it doesn’t specifically dictate what behaviors are forbidden or allowed.  Certainly, I will concede that it is initially easier (especially when you are dealing with young people) to simply write a list of dos and don’ts and expect them to follow the rules.  The problem is that these arbitrary rules are difficult to follow, especially when you are dealing with a primal human behavior like sex.  Ultimately, in my opinion, the shame the conservative Christianity imposes in conjunction with its demand for slavish adherence to its made up sexual rules either leads to sexual neurosis or rejection of religion.

The Big Scam

Up to this point, my views have been controversial and not particularly related to the law, but I hope that I’m about to remedy both situations.

The Big Scam is the increasingly prominent view held by conservative Christian political pundits that the Bible requires Christian to not only be moral, but to make everyone else moral as well.  This sentiment might not be so bad, except for the fact that it wants to use the law as the primary agent to bring about this moral awakening.

If other Christians want to disagree with my reading of the Bible regarding sex, that it their right.  But they can’t plausibly claim that the Bible requires them to outlaw the sexual behaviors that they think are prohibited by the Bible.  Nonetheless, for the past 30 years there has been a groundswell in American Christianity to elect politicians who promise to outlaw or repress sexual behaviors and activities that conservative Christians believe are prohibited by the Bible.

The Big Scam is, at least in my opinion, a blatant attempt to manipulate the politics of people of faith by falsely telling them that God, Jesus, the Bible, or the Church require the criminalization of any sexual behavior other than vaginal intercourse between a husband and a wife.  It’s not enough to tell Christians not to look at sexual imagery; Christians have to stop everyone from looking at sexual imagery.  It’s not enough to teach Christian teenagers that they can’t have sex until they are married; all teenagers need to be taught abstinence.

To borrow a phrase from the conservatives, conservative Christians are expected to vote for the ultimate Nanny State—a government that tells you how to live your life and punishes you severely if you don’t comply.  Attempts to enforce oppressive sexual mores are only the first crusade.  If conservative Christians continue to be successful in prosecuting “obscenity” and forcing adult businesses to disappear, I have every reason to believe that they will move on to areas as well.

My concerns about this creeping attempt to install a theocratic government are the primary reason for my desire to practice Constitutional law.  The freedoms of the Constitution—especially those in the First Amendment—are the fundamental defense against religious extremism.

The highlights of the war-line site are the pictures of customers and employees that are posted with loving captions like “Group suffering from cranial/rectum inversion,” “Do these pants make my butt look too big?” “Fortunately the Lion’s Den has double doors,” “Not all men are this annoying.  Some are dead,” “Not so much dressed as upholstered,” ”One way to look thin is to hang out with large people,” “Some times brain damage helps,” and “Dynamic Dumb Duo!”

The protestors claim that they are just exercising their First Amendment rights, but there are a couple of problems.  First, the structure that they have built is on county property, and the county is apparently looking the other way and letting the protestors use the land.  It seems to me that this constitutes favoring one type of speech over the other, which raises some thorny constitutional issues.  What’s more, by allowing church groups to use its land free-of-charge, and even erect a structure, the county is arguably violating the establishment clause.

But the biggest problem with what the protestors are doing probably has nothing to do with the Constitution—they appear to be committing a crime under Indiana state law.  Chapter 2 of Article 45 of Title 35 of the Indiana Code makes it a crime to engage in “intimidation” which is defined as, among other things, threatening to expose someone to “hatred, contempt, disgrace, or ridicule” for the purpose of causing that person to engage in acts against their will, making the person fear retaliation for a prior lawful act, or causing the evacuation of a building.

It looks like the “war-line” folks have hit the trifecta.  They happily acknowledge that they want the customers and employees of the Lion’s Den to fear “hatred, contempt, disgrace, or ridicule.”  In fact, they do all of those things on their website.  And the purpose of their actions is to accomplish not just one, but all three of the purposes that are forbidden.  They want to force customers and employees to leave the Lion’s Den against their will.  They want them to fear retaliation for their lawful acts of shopping or working at The Lion’s Den.  And the want to cause the evacuation of The Lion’s Den.  The first offense of Intimidation is a Class A Misdemeanor, which carries a penalty of up to one year in prison and a fine of up to $5,000.  Subsequent offenses against the same victim are class D felonies, which are subject to imprisonment of six months to three years and a fine of $10,000.

C’mon Lion’s Den, start making some police reports.

There are a lot of things about this story that I find interesting.  First, the idea of Unitarian-Universalists tackling an armed attacker is kind of funny.  Given the fact that Unitarian-Universalists (hey, can y’all come up with a shorter nickname) are overwhelmingly liberal, the incident seems to contradict the stereotype of liberals as effeminate wimps (or “liberal pantywaists” as my friend Amy would call them).  Ironically, the Unitarian-Universalists who tackled him probably saved his life, since his letter indicated that he intended to keep shooting until the police showed up and killed him.

Second, the news story says that the shooter believes that “all liberals should be killed” because they are “ruining the country” by tying the government’s hands in the war on terror and destroying every major institution in America.  I find these sentiments especially disturbing because they really aren’t that far from mainstream conservative thought.  Conservatives love to make statements about how civil rights activists are preventing the government from protecting us from the terrorists, usually right before or after they crow about how they are “winning the war on terror” by systematically dismantling the Bill of Rights.  They also love to blame liberals for ruining “traditional american institutions,” even though many of those institutions were actually started by liberals.  You know, things like public schools, public health, open government, trial by jury, the free market system…you get the idea.

Ironically, the thing that seems to have set off the shooter was the impending end to his food stamp eligibility.  Food stamps are a good example of one of those institutions that were created by liberals.  And if the shooter was unhappy because he was going to lose his food stamps, he really should have been blaming conservatives, not liberals.

I have little doubt that this guy has some pronounced mental health issues—sane people don’t go to a children’s performance of “Annie” with 76 rounds of ammunition and shotgun stowed in a guitar case.  His obvious instability, however, shouldn’t distract from the shooter’s motivation.  He acted based on a common set of beliefs that are pervasive in our popular culture: that liberals are irresponsible, dangerous people who are against everything that is good in American society.  These are the same beliefs that formed the core of both of George W. Bush’s presidential campaigns, and it looks like McCain’s campaign is heading in the same direction.

Just remember, say what you want about Unitarian-Universalists and liberals, but I can’t recall ever seeing a news story about them going on a shooting spree in a Baptist church.