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Hate-crimes legislation
Do hate-crime laws inhibit free speech?
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Quotations (and yes, they are all talking about the same type of legislation):
 | "A hate crime is fundamentally different from an identical act not motivated by hate because the hate crime's end is different. A hate crime is done to intimidate and oppress a particular group of people. The action itself is fundamentally different." Blake Roberts, in The Hoya, Georgetown University 1 |
| "Hate crimes legislation could severely restrict Americans' freedom of speech, freedom of thought and freedom of religion." Family Research Council 9 |
| "If this 'hate crime' legislation were to become law, it would be used against individuals and churches that speak out on issues such as defending marriage and religious liberty." Massachusetts Family Institute. 13 |
| "We must continue to fight for justice, hope, and freedom by ensuring that hate crimes prevention provisions are enacted into law. That would be a true and fitting memorial to James Byrd, Matthew Shepard, Waqar Hasan, Gwen Araujo and so many others who have died because of ignorance and intolerance." Rep. Nancy Pelosi (D-CA). 14 |
| "If 'hate crime' legislation were to become law, it would be used against individuals and churches who speak out on issues such as defending marriage and religious liberty." Family Research Council. 15 |
| "There are those that would delight in silencing any criticism of their lifestyle and would find this hate-crime legislation the perfect tool for accomplishing their end." Reverend Dr. Simpson, Harvester Baptist Church, Colombia, MD. 11 |
Overview:
The federal government and many US states have hate-crimes legislation that increase the sentences of perpetrators who have been found guilty of hate crimes. Most legislation covers at least race and religion as protected classes. Some include additional protected groups.
Thus, for example, if a person assaults a friend or relative over some disagreement, they might get 3 months in jail. But if the perpetrator is found guilty of assaulting a stranger simply because he was black, then the criminal would have a surcharge added to their sentence. Blake Roberts, a sophomore at Georgetown University enlarges on the differences between an "ordinary" crime and a hate crime: "If I assault and rob an African-American man because he happens to be alone and I need some cash, that is no different from my robbing a white man for the same reasons and it would not be a hate crime. But if I choose to assault and rob a African-American because I don't think that he belongs on this campus due to the color of his skin, that is different, and it is a hate crime." 1
Hate crime legislation is a controversial topic:
| Some people feel that a sentence should be strictly based on the severity of the perpetrator's crime. So, for example, an aggravated assault on a friend because of a disagreement would get the same sentence as a similar aggravated assault on a stranger because of their religion. Equal treatment under law is a basic principle of democratic government. |
| Other people feel that a hate-crime is more than a crime against an individual. It normally victimizes not only a stranger, but is intended to terrorize a whole group of people: e.g. all African-Americans, all women, all gays... It is a deliberate terrorist act and thus should get a longer sentence. A crime against an acquaintance or friend might terrorize that one victim. But a hate crime against a stranger terrorizes all members of his/her group. |
Some jurisdictions have considered including additional protected classes to their existing hate-crimes legislation. Covering hate crimes motivated by hatred of persons based on their age, gender, or disability present little difficulty. But adding sexual orientation to a list of protected classes has generated much controversy and has caused conservative Christian groups to mobilize and actively oppose changes in legislation.
One common assertion is that if we add sexual orientation as a protected class, that ministers, pastors and priests will no longer be able to teach what the Bible states about homosexuality. Religious leaders will no longer be able to preach freely about homosexuality from the pulpit.
Disagreements about hate-crime legislation:
| Those opposed to legislation | Those who favor legislation |
| Including protection for gays and lesbians will give them special privileges. | It doesn't; it only gives them the same protections as other groups already have. |
| Hate-crime legislation should not cover behaviors; it should only cover factors that are outside of the person's control, like race and gender. | Essentially all hate crimes legislation already
includes religion as a protected class. Religion is a chosen behavior.
Also, all of the major professional mental health associations have stated that sexual orientation is beyond a persons' control. It is neither chosen nor changeable. |
| We shouldn't be "providing special protected class status for homosexuals." 4 | The legislation doesn't do this. None of the hate-crimes legislation protects (or even mentions) gays, lesbians, homosexuals or homosexuality. Rather, it adds "sexual orientation" as a protected class. That protects everyone equally: gays, lesbians, bisexuals & heterosexuals. |
| Why bother protect gay bashing? It is a very rare crime. According to the official FBI statistics released in 2001, there were only 1,317 instances of gay-bashing in the entire country. That puts reported hate-crimes motivated on sexual orientation third in frequency behind crimes motivated by race and religion. | This data greatly underestimates the incidence of gay bashing. Over 40% of homosexuals and bisexuals report having been attacked because of their sexual orientation sometime during their life. 2 Assuming that 5% of adults are homosexual or bisexual, this would mean that about six million of them had been victimized out of a total group population on the order of 15 million. |
| Hate crimes legislation "punishes people for their thoughts and speech when criminal law should be punishing them for their actions." 3 | A non-hate crime victimizes one person. Hate crimes are intended to terrorize an entire group. Even if the damage to the immediate victim is the same in both cases, the total impact of the crime is very different, and thus should be punished differently. |
| Hate crime legislation "punishes a criminal who commits a violent crime against a homosexual more severely than if he committed a crime against a non-homosexual." 4 Traditional Values Coalition | No it wouldn't. If one criminal assaulted a stranger because he was a homosexual, and another criminal assaulted a different stranger because he was a heterosexual, they would both have committed a hate crime. |
| "...hate-crime laws...do not unite us; they tear us apart into politically correct subgroups and advance an agenda hostile to the values of most Americans." 6 Focus on the Family | Hate crimes legislation simply says that criminal acts based on hatred of women or minorities because of their race, gender, sexual orientation, age, disability, etc. is wrong. Ultimately, it places the moral strength of the government against bigotry, and lowers the level of hatred in society. This leads towards social tolerance and peace. |
| "Hate crimes legislation, accompanied by the President's 'tolerance education' crusade, will hinder parents who seek to protect their children from a lifestyle that is unhealthy and which they recognize to be morally and spiritually wrong." 9 Family Research Council | No hate crimes legislation, in place or proposed, can have any impact on parental teaching of their children. |
| "Students could be forced to learn homosexual diversity training in public schools." 9 Family Research Council | No hate crimes legislation, in place or proposed, impacts on public school education. |
| Hate-crime legislation which protects gays and lesbians will criminalize anti-gay speech. Clergy will not be able to teach biblical passages about homosexuality. * | This is a fallacy. * |
* Both sides of this issue will be discussed in the remainder of this essay.
Conservative Christians' concerns about freedom of speech:
All of the concerns about hate-crime legislation inhibiting freedom of speech that we have seen to date have come from conservative Christian groups. They seem to be motivated by a concern that sexual orientation (i.e. heterosexuality, homosexuality and bisexuality) might become a protected class in hate-crimes legislation:
| 2001-SEP: West Virginia Family Foundation (WVFF): Kevin McCoy, leader of the WVFF, complained about a training course that is being given to police officers by the assistant attorney general for West Virginia. The WVFF is an affiliate of the American Family Association, a Fundamentalist Christian agency. The course mentions that some of the hate groups in the U.S. (presumably referring to the Christian Identity movement, the KKK, and similar groups), "include apocalyptic Christianity in their ideology and believe we are in, or approaching, a period of violence and social turmoil which will precede the Second Coming of Christ." This is a comment found also in FBI and CSIS documents released in late 1999. (CSIS is the "Canadian Security Intelligence Service, a Federal government agency.) According to an article in the Register-Herald, "McCoy takes this to mean anyone with a literal interpretation of the Bible, especially in regard to scriptures on prophecy, is part and parcel of a hate group. 5 McCoy seems to have interpreted this quotation from the course to mean that because a few hate groups who represent a very small percentage of the American population believe in an imminent and violent end of the world, that anyone who believes in a violent end of the world is a member of a hate group. That would include all Fundamentalists and most other Evangelicals -- probably a majority of adults in West Virginia. The break in logic is obvious. The reporter comments: "Could this mean preachers would be hauled off to the courts to face hate crime violations?" Later he concludes: "To conservative groups such as McCoy's, cleverly linking Nazis and Klan groups or others backgrounded in violence with opponents of homosexuality is an old tack harking back to the "big lie" method of the [Nazi Germany's] Third Reich." |
| 2001-JUL-26: Traditional Values Coalition (TVC): The TVC issued a press release concerning "The Local Law Enforcement Enhancement Act," S. 625 -- a bill that was before the U.S. Senate at the time. The release said in part: "This legislation also provides a blank check for the funding of law enforcement and public school materials that promote anti-Christian bigotry under the guise of reducing 'hate' ." Quoting Andrea Lafferty, Executive Director of TVC, the release said: "This law will violate the free speech rights of Christians and others who oppose homosexuality on moral grounds. This is a direct attack against the First Amendment and freedom of religion. It must not be passed by the Senate." |
| 2001-JUN-1: Focus on the Family: Focus regularly issues reports on "family issues in policy and culture." One deals with hate crime legislation. They suggest that laws of this type "harm religious freedom." They state, in part: "Such laws could (and probably would) be used to harm people of faith, chill free speech, and even lead to same-sex 'marriage'." They define the phrase "chill free speech" as meaning "to intimidate or discourage a person from speaking." They conclude that if a Christian were to commit a hate crime motivated by his/her hatred of homosexuals, then their clergyperson could be "prosecuted for conspiracy or subjected to civil lawsuits" if he/she had preached against homosexuality in advance of the hate crime. The Focus writer is also concerned that hate crime legislation that includes protection for sexual orientation might influence future legislation on different topics -- e.g. which committed, loving same-sex couples should be allowed to marry. |
| Undated: Liberty Counsel: Liberty Counsel is a
Fundamentalist Christian agency concerned with religious freedom rights
for Christians. In an undated memorandum they express concern over the "Local
Law Enforcement Enhancement Act of 2000." The bill was extremely
limited in scope; it would only cover crimes that injure or kill a person
which were motivated by hatred of their actual or perceived sexual
orientation, where the crime was tied in some way to interstate commerce,
and if the crime was committed using fire, a firearm, incendiary device or
bomb. They state: "The religious organizations and clergy that would be
impacted by this Bill are those who have a sincere belief that
homosexuality, lesbianism, transgenderism and bisexuality violate their
religious tenets." 7 As is common with conservative
Christian groups, they are referring to behavior, not to sexual
orientation -- the factor that would be protected by the legislation.
Their inclusion of transgenderism appears to be in error. It is not a
sexual orientation; it is a gender identity -- a factor that would not be
covered by that legislation. They cite a hypothetical situation in which a minister preached a sermon that called on his congregation to "actively oppose the promotion or acceptance of the homosexual lifestyle in their community." A member of the congregation might then go out and crucify a gay man, as was done to Matthew Shepard. They speculate that the pastor could be charged with conspiracy to commit a hate crime. Stanley and Staver point out that some states have "expansive definitions of conspiracy that only require agreement to pursue an objective that may be lawful (i.e. opposition to the homosexual lifestyle) in an unlawful manner and that the crime committed was a natural and foreseeable consequence of the agreement." |
| 2001-AUG-1: ChristiansUnite.com: Reporter Andrea Lafferty wrote an article about a proposed federal hate-crimes bill S.625. She refers to a book by James Jacobs and Kimberly Potter who state that the goal of hate crimes legislation is to criminalize people's beliefs about right and wrong. She also refers to educator Jonathan Kozol who states that such legislation: "are symptomatic of society's Balkanization. They are futile in the long run. We cannot rebuild society by legislative penalties for insensitive acts and utterances." 8, 10 |
| Undated: Family Research Council (FRC): People for the American Way, a liberal agency, criticized the Family Research Council for "bearing false witness" in one of their action alerts. Unfortunately, the text of the alert does not appear in the FRC web site. FRC is quoted as stating that: "Hate crimes legislation could severely restrict Americans' freedom of speech, freedom of thought and freedom of religion. This legislation would give the government the power to interpret and classify certain speech, thought, theology, and moral belief as unlawful or contributing to crime. Will pastors, priests, rabbis, and other religious leaders who preach and teach against homosexual conduct be prosecuted for inciting a hate crime?" 9 |
Are the free speech concerns of conservative Christians reasonable?
According to the People for the American Way, the answer is no. 9 It is of paramount importance to realize that only crimes can become hate crimes. That is, some violent criminal act -- assault, murder, attempted murder, aggravated assault, etc. must happen first. Only then can the crime be considered a criminal act.
| Can members of the clergy be charged on the basis of their
sermons? No. The First Amendment of
the U.S. Constitution guarantees that a member of the clergy,
or any other person for that matter, can preach, write, post on the
Internet, state, or publish an attack on anyone or any group. As proof
of this consider:
|
If these individuals or groups have never been convicted of a crime, it is very doubtful that a clergyperson preaching a sermon of hate against gays and lesbians would ever be charged. Hate crimes legislation would in no way overrule the First Amendment.
| Can Christian clergy be "prosecuted for conspiracy or subjected to
civil lawsuits"? No. Quoting the Liberty Council web site
mentioned above: "A conspiracy requires that two or
more people "reach an agreement to pursue an objective...in an unlawful
manner." No conspiracy is present if a clergyperson preached hatred
of homosexuals or homosexuality to a congregation, radio audience, or TV
audience, and if someone listening to the sermon subsequently engaged in gay
bashing. To be guilty of conspiracy, the perpetrator would have to engage in
an agreement to commit a criminal act. For example, the individual would have
to contact the clergyperson, explain that he/she was going to engage in gay
bashing, and the clergyperson would have to agree with that course of action.
In other words, the pastor, priest or minister would have to discuss and agree
on committing a criminal act. If there were some way to charge a clergyperson with conspiracy, then charges could be laid whether hate crimes legislation were in place or not. After all, a crime had been committed But, as explained above, there is no way to implicate a clergyperson unless they were directly involved in the planning of the crime. And if they were directly involved, they should be charged. | ||||||||
| Are hate laws effective? Jonathan Kozol's comment mentioned above: "We cannot rebuild society by legislative penalties for insensitive acts and utterances," bears no relationship to hate crimes legislation. Recall that such laws only kick in if a crime has been committed. "Insensitive acts and utterances" do not normally constitute a crime. | ||||||||
| What are the likely results of hate-crimes? Hate crimes can be
expected to produce a number of main results:
It is the latter two developments that those opposed to hate-crimes legislation may well be most concerned about. |
References used:
- Blake Roberts, "Hate crimes, not legislation, violate freedom," The Hoya, 2000-FEB-8, at: http://www.thehoya.com/viewpoint/
- Gregory Herek,et. al., "Hate crime victimization among lesbian, gay and bisexual adults," Journal of Interpersonal Violence, 12(2): Pages 195-215.
- Robert Swope, "Hate crimes legislature [sic] infringes upon freedom," The Hoya, 2000-JAN-28, at: http://www.thehoya.com/viewpoint/
- "Senate must reject unjust 'Hate Crime' legislation," Traditional Values Coalition, at: http://www.traditionalvalues.org/
- Mannix Porterfield, "Christians a 'hate group'," The Register-Herald newspaper of Beckley, WV. See: http://www.zwire.com/site/news.asp? This is probably a temporary listing.
- "How Hate-Crime Laws Harm Religious Freedom and Lead to Same-Sex 'Marriage'," Focus on the Family at: http://www.family.org/cforum/research/
- E.W. Stanley & M.D. Staver, "The impact on hate crimes laws upon religious organizations and clergy," Liberty Counsel, at: http://www.lc.org/
- Andrea Lafferty, "Hate crime law creates 'Animal Farm' justice system," ChristiansUnite.com, 2001-AUG-1, at: http://news.christiansunite.com/
- "Bearing false witness: The FRC's six big lies about the hate crimes prevention act," People for the American Way, at: http://www.pfaw.org/caphill/hatecrimes/
- James B. Jacobs & Kimberly Potter, "Hate Crimes: Criminal Law & Identity Politics,"
- Don Martin, "Local loon speaks out," at: http://www.skeptictank.org/hcrimes.htm
- William Glaberson, "Court Voids Law Banning Cross Burning," 2001-NOV-3, New York Times, at: http://www.nytimes.com/2001/11/03/
- "Action alert: Protect free speech!," E-Alert, Massachusetts Family Institute, 2004-OCT-1.
- "House Democratic leader Nandy Pelosi: Hate crimes prevention legislation is right thing to do, long overdue," Islam-Infonet, Council on American-Islamic Relations, 2004-SEP-29.
- "Congress 'suggests' ending free speech," Washington Update, Family Research Council, 2004-SEP-29.
Copyright © 2001 to 2007 by Ontario Consultants on Religious
Tolerance
Originally written: 2001-SEP-04
Latest update: 2007-MAY-02
Author: B.A. Robinson
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