Senate passes bill S. 909. Religious
hate speech given special protection

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Background:

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 national origin.

The proposed bill would:

	Add gender, sexual orientation, gender identity and disability as protected classes. It would thus protect female, male, intersexual, heterosexual, bisexual, homosexual, transgender, transsexual, cis-gendered, disabled, and able-bodied persons. That is, it would protect every person in the U.S. in four new ways, in addition to the earlier four, making a total of eight way protection.
	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 prejudice."

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.

Amendment to protect religious hate speech:

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 violence."

"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

Brownback's amendment 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 2009-APR.

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 bill. The "NO" votes 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 this process.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Text etc. of the "Matthew Shepard Hate Crimes Prevention Act," GovTrack, at: http://www.govtrack.us/
2. "Matthew Shepard Hate Crimes Prevention Act Clears Key Senate Hurdle," Human Rights Campaign, 2009-JUL-16, at: http://www.hrc.org/
3. "Senate Passes Hate Crimes Amendment Lacking Free Speech and Association Protections. ACLU Calls for Adoption of House Provision, Instead," ACLU, 2009-JUL-17, at: http://www.commondreams.org/
4. Video recording of testimony before the Senate Judiciary Committee is available at: http://www.senate.gov/
5. PDF transcripts of witnesses giving testimony to the Senate Judiciary Committee are available at: http://judiciary.senate.gov/
6. "Robertson claims hate crime bill would make criminals of 'anyone [who] speaks out against homosexuality'," Media Matters, 2009-JUN-25, at: http://mediamatters.org/
7. Peter J. Smith, "Senate Approves Amendment Adding "Hate Crimes" to Defense Spending Bill," LifeSiteNews, 2009-JUL-17, at: http://www.lifesitenews.com/
8. Jim Abrams, "Hate crimes may cover gender, sexual orientation," Associated Press, 2009-JUL-17, at: http://news.findlaw.com/
9. "Senate Adopts Unwelcomed Amendments to the Matthew Shepard Hate Crimes Prevention Act," Human Rights Campaign, 2009-JUL-20, at: http://www.hrc.org/
10. Michael Cole, "School House Rocks Redux," Human Rights Campaign, 2009-JUL-21, at: http://www.hrcbackstory.org/

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Copyright © 2009 by Ontario Consultants on Religious Tolerance
First posted: 2009-JUL-18
Latest update: 2009-AUG-14
Author: B.A. Robinson

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