Senate passes bill S. 909. Religious
hate speech given special protection
An earlier hate crime law (18 U.S.C. 245), was passed in 1969 in
response to a hate crime motivated by racial hatred: the assassination of Martin
Luther King Jr. For over 40 years, it has discouraged certain violent
crimes motivated by hatred of the victim's race, color, religion and/or
Vastly increase the scope of the hate crime law to allow prosecution of violent hate crimes
at locations in addition to
post offices, public schools, voting booths, or other federal facilities. 1
Senate Majority Leader Harry Reid (D-NV) said: "This bill simply recognizes
that there is a difference between assaulting someone to steal his money, or
doing so because he is gay, or disabled, or Latino or Muslim."
One difference, to which Senator Reid refers, is that a hate crime victim is typically a stranger to the
perpetrator. Another is that the perpetrator's main goal is to attack an entire community of
people to which the victim belongs. It is essentially a terrorist act which
terrorizes many more people than the direct victim of the violent crime.
Senate bill S. 909:
On 2009-APR-28, bill S. 909 was introduced to the U.S. Senate by a bipartisan
group of sponsors including by Sen. Edward Kennedy (D-MA), Sen. Patrick Leahy
(D-VT), Sen. Olympia Snowe (R-ME), Sen. Susan Collins (R-ME), Senator Arlen
Specter (D-PA), and others. 2
This is the tenth time that a bill to amend the 1969 hate crime bill has been introduced. All of the
previous bills were defeated either by Congressional vote or presidential veto.
However, this bill is strongly supported by President Obama. With Democrats in a
majority position in both the House and Senate, it has a good chance of being
signed into law.
Its formal name is the Local Law Enforcement
Hate Crimes Prevention Act, 2009. It is popularly referred to as the Matthew
Shepard Hate Crimes Prevention Act (MSHCPA), and was named after a gay male
who was pistol-whipped, tortured, and finally fatally crucified in Wyoming. 3
Senate Judiciary Committee hearing:
On 2009-JUN-25, the Senate Judiciary Committee held a hearing on the
Matthew Shepard Act. 4,5 Attorney General Eric Holder, testified in support
of this legislation. Testimony was given by four witnesses who supported the
bill and two who were opposed.
Some Republican senators questioned the need for a hate
crimes bill that covers sexual orientation:
Senator Jeff Sessions (R-AL) noted that the original 1969 bill was needed
because there was a "double standard of justice" for people of color at the
time. He argued that state and local governments "are far more effective
today than in the past."
Orin Hatch (R-UT) said: "I've seen little evidence that there is a trend
among state law enforcement officials to ignore violent crimes motivated by
Senator Patrick Leahy (D-VT), chairperson of the Senate Judiciary
Committee referred to the recent murder of Stephan Tyrone Johns, a black security
guard at the United States Holocaust Memorial Museum by a white
supremacist. Leahy said: "The tragic murder is just the latest in an alarming
string of hate crimes."
Apparently, the bill was passed by the committee, but we have not been able
to find a reference of the vote. If anyone knows of this data, we would
appreciate learning of it. We can be reached via the "contact us" icon at the bottom of this page.
Many conservative Christian para-church groups had expressed concern that
pastors who engaged in hate speech might be prosecuted under this new law. They
suggested as one example that if a parishioner was so motivated by the loathing directed at
homosexuals in their pastor's sermon that he or she went out and committed a violent gay
bashing, that the pastor himself might be prosecuted under the hate-crimes law.
Some Christian groups simply implied that this bill directly criminalized
sermons and other forms of speech that criticized homosexuals or called same-sex
sexual behavior a sin.
On the day of the hearing, 2009-JUN- 25, Pat Robertson discussed the hate crime bill on his
TV program: The
700 Club. He ignored the increased coverage that the bill would provide to
persons of both genders, all sexual identities, all types of disability, and to
both bisexuals and heterosexuals. He ignored the bill's reference to hate crimes
of violence. He assumed that the violent hate crimes referred to in the bill
included a pastor speaking in front of her or his congregation talking about the
morality of homosexuality. He viewed the bill not as a bill to reduce hate crime
bill, but as a bill to limit free speech. Robertson said:
"I think that what they are talking about is unconstitutional. I think the
application of it will be unconstitutional. Pastors, for example, in a church
have a certain right to speak out on what they consider moral issues. If the
Congress says that you as a pastor cannot warn of sin to your congregation
then they have violated everything that we know in the Constitution is
important in relation to free speech. And I think the courts would overturn
this legislation if it goes through that way. .... Henceforth, if anyone
speaks out about homosexuality, --- says it's a sin, says it's wrong, says
it's against the Bible -- that individual would be charged with a 'hate
crime.' This is not a good thing." 6
To offer these groups reassurance that clergy would be able to continue
expressing hatred against women, sexual minorities, and the disabled, provisions were
added to the bill to protect freedom of hate speech:
According to LifeSiteNews, Senator Sam Brownback (R-KS) submitted
an amendment to emphasize that the:
"... law will not be applied in a way that infringes upon freedom of speech or
that 'substantially burdens any exercise of religion, speech, expression, [or]
association, if such exercise of religion, speech, expression, or association
was not intended to plan or prepare for an act of physical violence; or incite
an imminent act of physical violence against another'." 7
The Associated Press commented:
"Supporters [of the bill] also emphasized that prosecutions under the bill can occur only
when bodily injury is involved, and no minister or protester could be targeted
for expressing opposition to homosexuality, even if their statements are
followed by another person committing a violent action."
"To emphasize the point, the Senate passed provisions restating that the
bill does not prohibit constitutionally protected speech and that free speech
is guaranteed unless it is intended to plan or prepare for an act of
"The Traditional Values Coalition had expressed concern in a letter
to senators that a pastor could be prosecuted for 'conspiracy to commit a hate
crime' if a sermon resulted in a person acting aggressively against someone
based on sexual orientation." 8
was adopted by the Senate with a vote of 78 to 13 (86% in favor), and now
forms part of the bill.
Senate passes S. 909:
On 2009-JUL-16, the U.S. Senate passed their hate-crimes bill, S. 909.
It differs slightly from the House's version H.R. 1913 that was passed in
A potential Republican filibuster was avoided by invoking a cloture motion to
force a vote. The Senate passed the bill 63 to 28 (69% -- over two to one -- in favor).
Five Republicans, all of the Democrats, and both Independents voted for the
were all by Republicans. That is about as
bipartisan as the Senate is able to achieve under the present circumstances.
On the evening of 2009-JUL-23, the Senate passed the Defense Department
authorization bill which includes S. 909 as an amendment.
Senate adopts amendments to S. 909:
Senator Jeff Sessions (R-AL) offered three "poison pill" amendments to S. 909
in an innovative last ditch attempt to kill the bill. His hope may be that
various civil rights groups will withdraw their support for S. 909 if the death
penalty is included:
SA 1615 adds a death penalty option to the hate crime bill.
SA 1616 adds an additional protected class to the bill: assaults or
battery of a U.S. service member or a member of his/her immediate family based
on hatred of service personnel.
A third amendment to require the Attorney General to publish guidelines
with "neutral and objective criteria for determining whether a crime was
motivated by the status of the victim."
Senator Kennedy (D-MA) offered a single amendment:
It attempts to counteract SA 1615 by limiting the application of the death
penalty under the hate crimes act. 9
The House version of the bill does not contain
these amendments. At the House-Senate conference committee in September, the two
bills will be reconciled before being returned to the House and Senate for a
final vote, and then sent to President Obama for his signature. The amendments
may not survive this process.
According to David Stacy, Senior Policy Advocate at the Human Rights Campaign
-- a GLBT positive group:
"During the month of August, while the Congress is in recess, House and
Senate staff will work out differences between the House and Senate bills.
Most of these decisions are unrelated to hate crimes and can be worked out at
the staff level. Key decisions will be made by Senators and Representatives
when they return in September. Most important among these will be the final
decision about whether to keep the Matthew Shepard Act. Beyond that threshold
question, which we fully expect will be an emphatic 'YES,' decisions will have
to be made about the amendments passed by the Senate this week." 10
After the House-Senate conference committee in September, the harmonized
version will be returned to the House and Senate for a final vote, and then sent
to President Obama for his signature. Some of the amendments may not survive
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