Bullying Laws: Why the government cannot and should not legislate on moral grounds

Bullying in the United States is, at best, a problem. If the stories on our 24 hour news cycles and on blogs don’t convince you, maybe some statistics will. As published at bullyingstatistics.org: 42 percent of kids have been bullied while online, with one in four being verbally attacked more than once; 35 percent of kids have been threatened online; 58 percent of kids and teens have reported that something mean has been said about them or to them online; and 77 percent of students have admitted to being the victim of one type of bullying. Most shocking, however, is the fact that 46 percent of males and 26 percent of females have admitted to being victims in physical fights.

While these statistics are convincing, there seems to be a growing consensus that bullying—at least, in some instances—is justified. The term bullying, according to merriam-webster.com, was coined in 1693, and, depending on its usage as a verb, could mean either to affect by means of force or coercion, or to use browbeating language or behavior.

Recent development in state legislation in both Michigan and Tennessee has brought bullying to the forefront of both American politics and of a national conversation on the role of government in the life of the individual.

It was Michigan state legislators’ action of enacting anti-bullying legislation that sparked the now tempered argument. According to an article written by Brad Hirschfield and published in the “Washington Post” entitled “Michigan anti-bullying law protects religious bullies,” “Michigan has managed to pass a law…[that] may actually provide legal cover to the worst of the bullies. The law, Matt’s Safe School Law, named in memory of Matt Epling who committed suicide [as a result of] anti-gay bullying [allows students to] claim that their bullying was based on ‘a sincerely held religious belief or moral conviction.’” The article goes on to posit that “the passage of this legislation may well set back the cause of protecting kids from their tormentors by moving the focus of attention from the…bullies, to legal wrangling about the religious and moral basis of their bullying.”

Michigan state legislators have even gone on the record regarding Matt’s Safe School Law. According to an article written by Laura Hibbard and published in the “Huffington Post” entitled “Michigan’s ‘Matt’s Safe School Law’ allows bullying with religious, moral reasons,” “The bill’s sponsor, Republican Rick Jones, told the paper that while the motion ‘may not be perfect’ he believes it’s a step in the right direction.”

Tennessee state legislators seem to be following in the footsteps of Michigan counterparts. According to an article published by the “Huffington Post” entitled “Tennessee anti-bullying law change could allow students to speak out against gays for religious reasons, “a proposed change in the Tennessee law could protect students who engage in anti-gay bullying if they do so for religious reasons.” The article goes on to note that “the proposed law change by state lawmakers would allow students to speak out against homosexuality without punishment, if that’s what their religious beliefs call for.”

So, what is at the crux of the argument? David Fowler, president of the Family Action Council puts it succinctly as he posits that “The purpose [of bullying legislation] is to stop bullying, not create special classes of people who are more important than others.”

There are two problems that persist with regard to Michigan’s bullying law. The first is that it attempts to protect some classes of individuals in a way that is not substantially related to achieving a government objective. For law school students and others who are aware, this is a reference to intermediate scrutiny, one of three levels of judicial scrutiny applied to cases.

The role of government is to protect all of its constituents from harm equally, not to pinpoint a particular class of constituents and provide them with particular protections. This is per the 14th Amendment to the United States Constitution, part of which—to put it succinctly—ensures that all individuals receive equal access to, and equal protection of, the laws. To enact a regulation that protects any class in particular—whether it is Homosexuals or Christians—would both fail the judicial scrutiny test and be in violation of the 14th Amendment because it fails to afford the same rights and privileges to all of its constituents.

Legislation that pinpoints a particular group of people are, on their face, negative freedoms in that they often restrict the rights of one group so that another group may have rights and privileges. Matt’s Safe School Law, succinctly put, allows bullying against Homosexuals, Blacks or Jews, to give three examples. This diminishes the rights and privileges of those respective groups of people. On the other hand, the law allows one individual to bully another if it is within his religious belief or a part of his moral code. This prioritizes church over state and morality over the law, with the implication that there is no difference between the letter and the spirit of law and the moral code of the church (with the church being whatever religion or belief system to adhere to).

There is no reason why the life of one individual should be prioritized over the other. A simple piece of legislation that defines bullying, declares it illegal and proposes a maximum and minimum punishment—all of which law enforcement would enforce and the courts would interpret, where necessary—should suffice.

The website bullyingstatistics.com puts it succinctly by noting that “Because of the wide-spread amount of bullying, it is more important than ever for parents and teachers to check in with children about bullying.” Just as the government’s role is to protect us, the role of the parents is to protect and raise their children. This is not the government’s role, not the Internet’s role, not the television’s role, not reality television’s role—but parents’.

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