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U.S. hate crime bills

Analysis of article by James Williamson,
a lawyer and former state senator from OK

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Article in the Tulsa World:

The 2009-SEP-04 issue of Tulsa World carried an article titled: "No need to expand hate crime legislation" by James A. Williamson. 1 He presents a conservative view of the federal Hate Crimes legislation currently before congress.

This essay attempts to analyze his arguments from a liberal viewpoint in order to give a balanced portrayal of both sides of the issues.

The word count in his article is 447. There is a general rule of thumb that copyright laws allow quotations in critical reviews of up to 500 words.

Paragraph 1:

"Recently the Democrat- controlled Congress has moved to expand existing federal hate crimes legislation to add sexual orientation as another specially protected class. Although there are some Tulsans who agree this should be done, I would like to submit a different perspective."

Response: His statement is true as far as it goes. However it may easily be misunderstood by the casual reader. The bill would expand existing federal hate crimes legislation to include sexual orientation, as he says. However, Williamson has not mentioned that the law would also include three additional grounds: gender, gender identity and disability. That is a major oversight.

("gender identity" is related to the gender that a person perceives themselves to be. The vast majority of adults are cisgendered: their perceived and genetic gender match. However, transgender persons often describe themselves as having a brain of one gender trapped in an opposite-gendered body.)

Paragraph 2 to 4:

"First, I must agree with the obvious ? hate exists. People of moral conviction, however, should oppose the hatred of people for any reason. But hate-crimes legislation doesn't stop hatred. Instead, it creates a special class of victims ? victims whose perpetrators receive more severe punishment for the very same physical or verbal acts that would not be as harshly punished if the crime were committed against someone who was not part of the special class."

"Let me give you one of many possible examples: An elderly African-American grandmother is severely beaten by a person of the same race who hates her activism against the area drug dealers. No hate crime, no special (more severe) punishment."

"Another elderly African-American grandmother is severely beaten by a white perpetrator who targets her because of her race. This perpetrator may have done exactly the same physical damage to the victim but would face substantially harsher punishment. No one has ever explained to me how these victims are equally protected from these perpetrators as required by our U.S. Constitution."

Response: The former hypothetical crime was motivated by a desire to retaliate against a person that the perpetrator knew. The fact that the victim is black, elderly, and female is immaterial. The perpetrator would have beaten a white young male activist in the same way if he had been an anti-drug activist.

However, if the bill becomes law, it would treat the second incident more harshly because it is a very different type of crime. It is in fact two criminal acts:

bulletA physical assault, motivated by hatred by the perpetrator of all members of the victim's race. The victim was probably a stranger and was simply the next black person that the perpetrator saw.
 
bulletA terrorist attack to strike fear into the entire black community. Such random, racist, violent crimes have a profoundly destabilizing effect on society.

The purpose of the hate crimes bill would be to not only protect individual persons of all races, nationalities, religions, genders, sexual orientations, sexual identities, and degrees of disability, but also protect their communities made up of people who share the same attribute, -- race in this case -- as well.

Paragraph 5:

"Furthermore, many conservatives are very concerned about the proposed expansion of hate crimes legislation to include sexual orientation. When expanded, these laws have been used in other nations to criminally prosecute individuals for speaking out against homosexual lifestyles."

The First Amendment acts as an absolute barrier between hate crime legislation and hate speech legislation. The former can be constitutional; the latter cannot be. This bill specifically limits its application to crimes of violence.

However, because of the frequent accusations by social and religious conservatives that the bill could somehow morph from criminalizing violent, injurious physical assaults to hate include hate speech, a well-known conservative, 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'." 3

The amendment was passed by the Senate and now forms part of the bill.

Williamson's article also refers to the situation in "other nations."

Very few countries have the same tolerance for hate speech as does the U.S. For example, Canada has a hate propaganda section in its criminal code. However it has an exemption for hate speech in a religious setting. It still criminalizes the advocating of genocide against certain groups even if the speech is in a religious setting.

There was an interesting case involving a sermon by Pastor ?e Green at his Pentecostal church in Borgholm, Sweden. He cited the main "clobber" passages in the Bible that have often been used to attack homosexual behavior. He called homosexuality an "abnormal, a horrible cancerous tumor in the body of society," and said that God believes that gays and lesbians deserve execution, that no homosexual can attain Heaven, and that gays and lesbians are "gripped by evil spiritual forces."  He was convicted under Sweden's unusually strict hate speech laws, and but had the conviction overturned on appeal.

Hate crimes legislation in the U.S. would in no way limit freedom of speech. In order for hate crime legislation to be applied in a specific case, a violent criminal act must first be committed. Preaching hatred against a particular group of people such as Jews, African-Americans, women, Roma, gays, lesbians, etc, or stating that God hates a specific group of people have always been protected forms of speech. Such speech is in no way a criminal act. Freedom of speech is protected under the First Amendment of the U.S. Constitution.

Senator Chuck Robb (D-VA) has commented:

"This legislation does not allow individuals to be prosecuted for their hateful thoughts, rather it allows them to be punished for their hateful acts. Willfully inflicting harm on another human being based on hate is not protected free speech." 2

Paragraph 6:

"This proposed expansion could lead to pastors being prosecuted for biblically explaining why he or she opposes homosexual behavior. It should be understood that to many who want this law, the Bible contains 'hate speech' and they would be quite satisfied with the prosecution of a pastor."

Response: It is conceivable that a pastor could be prosecuted under this proposed law. She or he could give a hate-based sermon against same-sex behavior, pick up a baseball bat, go into the congregation and beat a parishioner that he thought was gay or lesbian over the head with it. But without the bat, the pastor could say whatever he/she wished and be immune from prosecution under this law. Of course, he might lose members because a growing percentage of Christians would not want to be part of a homophobic church -- or racist or sexist for that matter.

Paragraphs 7 to 9:

"Finally, some would argue that hate-crime legislation is necessary in the United States because of what occurred in World War II Germany when hate was left unchecked."

"To place the frequency of these crimes in our country in context, you need to know the levels of reported hate crimes here. In 2007 (the last year published), of 1.5 million violent crimes reported to the FBI by 2,025 law enforcement agencies nationwide, there were 8,999 hate crimes reported (slightly over 0.5 percent) and, of those, 1,460 (less than 0.1 percent) related to sexual orientation."

"As can be seen, these statistics do not reflect the level of unchecked hate that history recorded in Nazi Germany ? a hate that was actually sanctioned and encouraged by its government."

Response: The key point of concern is not the number of reported hate crimes, but the number of actual hate crimes, and the terror that the latter injects into the victims' communities.

Various surveys have shown that on the order of 42% of gays and lesbians have experienced a physical attack during their lifetime that were motivated by their sexual orientation as perceived by the perpetrator. If we assume that 5% of the adult population of the U.S. is gay or lesbian, then this amounts to 4.4 million hate crimes having been experienced by this minority so far in their lives.

Obviously, hate crimes are seriously under-reported and the law is badly needed.

Final paragraph:

"So, for all of the above reasons, most conservatives do not support hate-crimes laws or the proposed expansion of them."

Actually, if there were any danger that this hate crimes bill could morph into a hate speech bill, most liberals would oppose it also.

References used:

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

  1. James A. Williamson, "No need to expand hate crime legislation," Tulsa World, 2009-SEP-04, at: http://www.tulsaworld.com/
  2. Chuck Robb, "Robb hails Senate vote on hate crime legislation," 2000-JUN-21, at: http://www.senate.gov/ 
  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/

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Copyright © 2009 by Ontario Consultants on Religious Tolerance
First posted: 2009-SEP-04
Latest update: 2009-SEP-04
Author: B.A. Robinson

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