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U.S. hate-crime bills: Conservative concerns

More about free speech, equal
justice & other concerns: Part 2

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This essay is a continuation from Part 1

How CitizenLink interpreted HB 1913 (Cont'd):

CitizenLink, is a news service of Focus on the Family Action, a fundamentalist Christian group centered in Colorado. Two articles appeared in late 2009-APR:

bulletOne was written by Jennifer Mesko and titled "U.S. House Creates Special Legal Status for Gay People." 1
bulletThe other was by an anonymous author and titled: "Hate-Crimes Bill May Add Protection for Pedophiles." 2

Both reports contained the same two curious statements. The second statement involved freedom of hate speech:

bullet"Similar laws have been used to prosecute religious speech in the U.S. and abroad."  The articles appear to confuse legislation against violent criminal hate crimes with legislation against hate speech or hate propaganda. Countries differ in their treatment of hate speech. Most do not have the near absolute freedom of speech as is experienced in the U.S. and guaranteed by the First Amendment of the U.S. Constitution:
 
bulletSome Scandinavian countries have hate speech laws on the books that apply everywhere in the country, including hate propaganda in a religious setting. Both pastors in a church and a homophobe on the street who verbally attack gays -- or lesbians, heterosexuals or bisexuals for that matter -- could be charged under those countries' existing hate speech laws. During 2003, Pastor Åke Green, delivered a sermon at his Pentecostal church in Borgholm, Sweden. He said that homosexuality is a deep cancerous tumor in society, that God says that homosexuals deserve execution, that God may vomit heterosexual people out of Sweden because of their tolerance of homosexuals, etc. He was charged under the law and convicted. He overturned his conviction on appeal.

bulletCanada has a somewhat similar hate propaganda law. However, it provides immunity for most hate speech in a religious setting. This immunity is not absolute. Anyone promoting the genocide of gays -- or lesbians, heterosexuals or bisexuals for that matter -- can still be prosecuted even if the genocide advocacy happened in a church. Some religious leaders fought hard against this genocide clause, but were unsuccessful in having it removed.

bulletThe situation in Canada and other foreign countries has no impact on the situation in the United States. The U.S. has no law under which religious speech can be prosecuted. If it had such a law, it is probably that the teleminister who advocated genocide of Wiccans by stoning and the Baptist pastor in Texas who advocated that the U.S. Army round up and napalm Wiccans would have been prosecuted long ago.
 

Americans have been prosecuted for hateful actions that indirectly involve speech. A fear-based commercial broadcast by the National Organization for Marriage in 2009-Spring referred to two such cases:
 
bulletA physician in California was hired by a fertility clinic to help women become pregnant through artificial insemination. While the vast majority of the women coming to the clinic were heterosexuals, a small minority are lesbian. Her religious beliefs required her to violate the clinic's rules by refusing fertility treatment to all lesbians. This put her job at risk. Although her discrimination against lesbians was an action on her part, it would have involved speech.
 
bullet A Methodist group in Ocean Grove, NJ, had registered with, and received funds from, both the state and federal governments. One condition of the funding agreement was that they agreed to keep their facilities open to all individuals on an equal basis. Their pavilion had been a very popular venue for wedding ceremonies. However, when a lesbian couple asked to hold their civil union ceremony there, the group said that the pavilion was a church and that their denomination's religious policies required them to discriminate against ceremonies for same-sex couples. The state's Department of Environmental Protection revoked the group's tax exempt status. Again, although their discrimination was an action on the part of the Methodist group, it would have involved speech. The couple who had been discriminated agaisnt initiated a lawsuit that was resolved in 2012-JAN in favor of the couple.

H.B. 1913 is not an anti-hate speech law. Section 8 of the bill specifically prohibits any use of the act to prosecute "... any expressive conduct protected from legal prohibition by, or any activities protected by the Constitution." Speech, including hate speech, is very definitely protected by the First Amendment of the U.S. Constitution. HB 1913 did become law. It can only be applied in cases involving crimes of violence. Religious hate speech may hurt the victim emotionally, but is not a crime of violence.

Comments by the Family Research Council:

President Tony Perkins released a statement after HR 1913 had been forwarded to the House by its Judiciary Committee. He wrote, in part:

"Congress should protect all Americans equally and not provide special protections to a few politically favored groups."

This appears to be a misrepresentation of the bill's wording. It does not provide "special protections to a few politically favored groups." As noted elsewhere, it protects persons:

bulletOf all sexual orientations equally: heterosexuals, bisexuals and homosexuals.
bulletOf all genders equally: women, men, intersexuals.
bullet Of all races, skin colors, national origin, etc.

That is, every person in the United States is protected identically and equally from violent attacks motivated by hatred of their sexual orientation, gender, race, skin color, national origin, etc. It does not protect any "politically favored groups" more than any other group.

He continued:

"A vote in favor of so-called 'hate crimes' legislation today is a direct violation of the Constitution's Equal Protection Clause. Congress needs to remember that preserving the meaning of equal justice under the law is more important than catering to the whims of political fashion."

Many social and religious conservatives agree with him. Consider a case where a person hated heterosexuals and hit one with a baseball bat because of the victim's sexual orientation. The perpetrator might be charged under a hate crime law and receive a higher sentence when compared to a case involving an identical assault that was not motivated by hatred. This is viewed by many conservatives as giving unequal treatment to different groups of violent perpetrators. A hate crime would result in a longer sentence than a similar assault that was motivated by the perpetrator's desire to rob the victim of their cash -- even though the injuries to the victims were the same.

But others disagree. They believe that a hate crime involves more than a physical attack on a person who is hated because of their race, color, religion, gender, sexual orientation, gender identity, or some other attribute. It is essentially a terrorist act intended to intimidate an entire group of people, whether they be blacks, whites, hispanics, Jews, Wiccans, women, men, paraplegics, etc. So it harms both the immediate victim and the group(s) to which the victim belongs.

According to Wikipedia, the Supreme Court has ruled that such laws are constitutional:

"The U.S. Supreme Court unanimously found that penalty-enhancement hate crime statutes do not conflict with free speech rights because they do not punish an individual for exercising freedom of expression; rather, they allow courts to consider motive when sentencing a criminal for conduct which is not protected by the First Amendment." 3

Tony Perkins also wrote:

"Additionally, this poorly-worded legislation shows contempt for the moral and religious views of millions of Americans by including 'sexual orientation" and 'gender identity' as protected categories at a time when a large plurality of our fellow citizens rejects the implied meaning of those labels. The bill sends a message that disapproval of homosexual behavior alone -- even if expressed peacefully and lovingly -- constitutes a form of 'hate' that is equivalent to racial bigotry.

Actually, the bill sends a message that attempting to terrorize the homosexual community by a crime of violence against one of its members is as serious as attempting to terrorize all heterosexuals, all blacks, all whites, all women, all men, etc. by a crime of violence against one of their members. The only place where the bill mentions hate speech is where it reinforces the guarantee of freedom of speech found in the First Amendment of the U.S. Constitution and elsewhere.

Hitting someone with a baseball bat is hardly disapproving of homosexual behavior in a peaceful and loving manner. It is a crime.

References used:

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

  1. Jennifer Mesko, "U.S. House Creates Special Legal Status for Gay People," CitizenLink, 2009-APR-29, at: http://www.citizenlink.org/
  2. "Hate-Crimes Bill May Add Protection for Pedophiles," CitizenLink, 2009-APR-30, at: http://www.citizenlink.org/
  3. "Wisconsin v. Mitchell," 508 U.S. 476 (1993).

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Copyright © 2009 to 2012 by Ontario Consultants on Religious Tolerance
First posted: 2009-MAY-01
Latest update: 2012-FEB-10
Author: B.A. Robinson

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