BUT FOR

Among the many religious freedom issues I think about each week is the prevalence of hate crimes.  Just about everyone is opposed to hate crimes, but defining what we oppose is more than a little problematic.  An entire hierarchy of offense has developed as we struggle with what it means to hold individuals accountable for the prejudices they may or may not recognize.

I hope that there is no disagreement that Matthew Shepard and James Byrd were murdered in hate crimes.  Mr. Shephard was beaten and tortured because of the antipathy of his killers toward homosexuality, and Mr. Byrd was an African American man who died as he was dragged behind a pickup truck for the crime of LWB – living while black.  In their memories, federal legislation codified as criminal hatred based on race or sexual orientation/identity when it results in bodily injury to the victim.

The courts, however, have interpreted that law very specifically.  In order to convict, the prosecution must show that the hatred was an essential motivating factor in the attack (and not merely one factor).  That is to say, the prosecution must show that but for the hatred, the injury would not have occurred.

You don’t have to be a lawyer (as I am proving) to understand what a high bar that is to clear.  If the bar is so high in these cases of battery and murder, then how do we determine whether vandalism, discrimination, bullying and similar crimes – in and of themselves legally and morally wrong – include an essential element of hatred?

If we are going to depend on the law alone to prevent hate crimes, then we will always be dissatisfied.  The most we can hope is that the law, in spite of its necessary definitions, will empower ordinary citizens and their institutions to prevent hate crimes.  I don’t pretend to know what motivates someone to be a bigot, let alone what tips a bigot over the edge to violence.  But it is not enough to give permission to a bully to stop just short of bodily harm.  The criminalization of the result of hatred is the notice our society needs to reduce and, if possible, eliminate it.

There is a but-for section of the Book of Numbers that is read in synagogues this week.  In a brief section (27:1-11), the five daughters of Zelophehad (yeah, hard to pronounce; say tz-loff-khad) come to Moses with a complaint.  Their father Z died in the wilderness without a male heir.  The result seemed to be that his property, and thus his name, would be absorbed into the apportionments to other families in the tribe.  The daughters asked why the good man their father was should be forgotten for the “sin” (my sarcastic word) of having daughters.

Moses takes the question right to the top and asks God how to resolve it.  What follows is a long set of conditions that must apply that prevent land from being inherited by women.  Really, you almost have to go through the phone book (there’s an anachronism both then and now) before the daughters are eligible, but there it is, ink-on-parchment, that women are entitled to inherit.  The but-for, the essential motivating factor, is the absence of any man who has a claim.

There are two ways to look at this section of the Bible – as an indictment or as an opportunity.  Those who are looking to underscore the undeniable male-centric nature of Scripture will consider this vignette the exception that proves the rule.  But those of us who seek evidence that the Bible tries to rise above its own circumstances view this encounter as a breakthrough.  In context, Z’s daughters may be last resort when all men fail, but they succeed in disrupting an entrenched system and opening a consideration of the true meaning of human equality that, today, is light years beyond the anonymity to which too many women were sentenced.  An injustice was corrected because the “but-for” forced us to look beyond the particulars of the law. The small wedge was worked and worked until today gender equality is the rule and mighty titans of industry fall on evidence of their sexism and abusiveness.

I know that it looks like I am suggesting that it was okay to wait 3000 years to begin to address this injustice. It wasn’t, which is all the more reason not to be patient with hate crime prevention.  We don’t need any more lessons than we have already learned – Mr. Shephard and Mr. Byrd, pig’s blood and cow’s head, sheriff’s stars and what-makes-you-think-your-life-matters-so-much.
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But-for is a limit.  It is not permission for anything less than but-for.  It is a caution to us that what we tolerate in the name of freedom to be politically incorrect encourages people to do harm, and therefore we have the responsibility like the daughters of Zelophehad to raise our voices and demand better.