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U.S. hate crime laws: 

Hate crime law arguments pro & con.
Civil rights concerns about these laws.

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Arguments about hate crime legislation -- pro and con:

In opposition to hate crime legislation In support of hate crime legislation
The legislation is not needed. "Every crime they cover is already illegal under existing state and local laws." * The legislation is needed. Protecting a group under hate crimes legislation will make the public aware that the group is vulnerable, has been extensively victimized in the past, and is in need of protection. Many victims have been attacked by strangers because of their gender, sexual orientation, gender identity, or ability status in the past. These are particularly heinous crimes. Legislation should be expanded to cover them.
They are unfair. American justice is based on the principle that everyone is treated identically. But if hate crimes legislation is passed, then the perpetrators of two identical crimes would receive different sentences, depending upon some characteristic of the victim (e.g. their gender, disability status, or sexual orientation).* "By granting special consideration to victims of 'politically incorrect' crimes, the legislation denies equal protection under the law." ** The laws are fair. A hate crime is more serious than a conventional crime because it abuses more than the immediate victim. When a criminal act is based on a factors such as a victim's race, gender, sexual orientation or religion, it takes on some of the characteristics of a terrorist act. The victim and the perpetrator are typically strangers. The crime is not directed simply against one person; it is intended to target and intimidate the victim's entire group. These acts have been referred to as "message crimes:" violence intended to send a message to a minority group within a community.
"They are a political vehicle for homosexual activists." If hate motivated crimes against gays and lesbians are recognized in law, then homosexuals would have a stronger moral claim to equal treatment in society. It will advance their claim that homosexual behavior is normal and natural. * Homosexuals, and in fact all groups that are targeted by hate crimes, are in need of protection. But the law would protect more than gays and lesbians. It would protect persons of all sexual orientations: heterosexuals, bisexuals and homosexuals. In earlier decades, civil rights legislation had a chilling effect on racial bigotry in the U.S.  The long range effects of including sexual orientation in hate crimes legislation will probably significantly reduce homophobia within the country. 
Federal hate crime legislation would increase federal government participation in law enforcement. * Increased federal involvement in hate crime prosecution would be beneficial. Sometimes local prejudices prevent bigots who target specific groups from receiving a proper trial and sentence.
Such legislation would infringe on freedom of speech. Bob Knight ** said: "The government has no business creating special classes of crime victims and politicizing crime...If an individual's sexual orientation is a federally protected civil right, the logical conclusion is that moral, religious, or personal beliefs about certain behaviors would be criminalized. The freedoms of conscience and speech would be lost." 1
The rationale here is that if gay-bashing becomes a hate crime, then a pastor delivering a Sunday sermon who said that the Bible condemns homosexual behavior would be committing a hate crime. Beliefs, thoughts, and speech would be criminalized. **
Hate crimes legislation would in no way limit freedom of speech. In order for hate crime legislation to be applied in a specific case, a 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) 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
Such legislation should only apply to personal characteristics that are beyond the individual's control, like gender, race, national origin, color, disability. Homosexuality is a chosen and changeable preference for members of the same gender. 

Denying sexual orientation as a protected class because it is a chosen behavior cannot be supported because:
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There is growing evidence that sexual orientation is not chosen. It has a strong genetic component.

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Religion is already a protected class and is clearly chosen and changeable.

Hate crime legislation would grant special privileges to gays and lesbians because it would identify them as a protected class.  Homosexuals would not be given special privileges. No hate crime law, to our knowledge, mentions gays, lesbians, bisexuals, or homosexuals. Including sexual orientation as a protected class safeguards persons of all sexual orientations: homosexuals, heterosexuals and bisexuals.
"What the inclusion of the category of sexual orientation in hate-crimes legislation and anti-discrimination legislation is meant to do, is to validate and legitimize sodomy, and other forms of sexual immorality. It's all a pretense that this is about protecting people's actual civil rights." *** The legislation would protect gays and lesbians. But it would also protect bisexuals and heterosexuals. 

Gay bashing is a very common crime; it comprises the third largest category of hate crimes. 

The legislation would also protect women, transgender persons, transsexuals, and the disabled.

* The first four points were adapted from a statement by Focus on the Family, a fundamentalist Christian group in Colorado Springs, CO. 1 On 2000-SEP-11, the House was poised to vote on a resolution in support of federal hate crime legislation. Focus took the unusual action of issuing a CitizenLink Special Alert to subscribers to their mailing list which included these four factors as "talking points." In common with other fundamentalist para-church organizations, Focus concentrated on the inclusion of homosexuality as a protected class; they did not mention that the legislation would also protect people of both genders, of all types of disability, and of all sexual orientations including heterosexuality.

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** The fifth point was supplied by Bob Knight, of the Family Research Council, also a fundamentalist Christian group. On 2000-SEP-12, after the House passed a resolution in support of federal hate crime legislation, he issued a statement of concern. Attorney Jordan Lorence reiterated the same point in a Focus on the Family essay. 3 He wrote:

"Saying things like 'I think homosexuality is a sin' or that 'Homosexuals can change' will become viewed as a hate crime."

When describing a state Hate Crimes Bill which was passed on 2001-MAY in Hawaii, a Focus on the Family writer commented that:

"Opponents of hate-crimes laws also contend that they will eventually be used to punish anyone who speaks out against homosexuality -- especially from a Biblical perspective -- on the charge that such speech creates an 'atmosphere of hate.' " 4

These commentators appear to overlook a fundamental protection in law: the First Amendment of the U.S. Constitution. It protects speech, including hate speech. Some Pastors and other speakers and writers from many different religions have created an atmosphere of hatred directed against women, blacks, Atheists, etc., in previous decades; yet they have never been prosecuted. A Baptist minister in Texas recently called on the U.S. Army to napalm all Wiccans. Again, his speech was protected. Even when members of the racist Creativity Movement (a non-Christian group formerly called the World Church of the Creator) went on random killing sprees, the pastor of the church was not charged under the existing 1969 hate crimes law.

It is inconceivable that any religious leader would be charged for simply delivering a hate sermon against homosexuals. Certainly, hate crime laws could not be used to lay such a charge. It is only after a crime has been committed (e.g. murder, physical assault, sexual assault) that the provisions of a hate-crimes law be applied. 

*** The final point was provided by Robert George, a professor of law and politics at Princeton University. His views were published by Focus on the Family on their CitizenLink web site. 5

Some religious conservatives have expressed at least four additional reasons to oppose any hate crime legislation that protects gays and lesbians. They are rarely discussed publicly, but are seen occasionally on bulletin boards and in Emails:
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Many believe that sexual orientation is chosen, and that God hates homosexual behavior. They feel that if the gay and lesbian lifestyle becomes more accepted in society, and if gays and lesbians achieve equal rights with the rest of the population, that the number of youth who  choose  to be gay will increase. A near consensus of mental health, medical, and human sexuality researchers disagree; they believe that a person's sexual orientation is neither chosen or is it changeable in adulthood. By making it easier for gays and lesbians to be more open about their sexuality, the number of homosexuals will not increase; only their mental health and visibility.

However, what is not seen as true for homosexuals is probably valid for bisexuals -- individuals who are sexually attracted to both men and women. If social barriers to same-sex relationships fall, then more bisexuals will probably feel freer to follow their heart and develop such relationships.
 

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Hate crime legislation that protects gays and lesbians would probably contribute greatly to the acceptance of homosexual behavior in America as normal, natural sexual variant. A prime goal for many religious conservatives is to prevent precisely this development.
 

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Some conservative Christians have claimed that the term "sexual orientation" includes homosexuality, pedophilia, sadism, masochism, bestiality, necrophilia, and other minority sexual activities and feelings. They worry that hate crime legislation might protect a wide range of sexual activity -- including some which are criminal acts. However, lawyers, legislators, gays, lesbians, religious liberals and others disagree. They feel that the term "sexual orientation" has a very well defined meaning in law and science. It defines the gender of other adults to which an adult has feelings of sexual attraction. They believe that the term includes only three variants: heterosexuality, homosexuality, and bisexuality. More details
 

bulletConservative Christians have argued that chosen behaviors have never been protected as a civil rights issue. They overlook religious expression -- a chosen behavior -- which has always been a protected class.

Why do hate-crime battles concentrate on homosexuality:

At first glance, it makes no sense to emphasize the protection of homosexuals and bisexuals as a result of hate-crime legislation. That is because none of the hate-crime bills that have ever been proposed specifically protect gays and lesbians. Instead, they protect all persons: heterosexuals, homosexuals and bisexuals who are victimized on the basis of their sexual orientation.

However, it begins to make sense when one looks at the data.

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As noted elsewhere in this section, the number of homosexual adults who reported to the police having been physically attacked because of their sexual orientation outnumber heterosexuals by a factor of over 22 times, even though homosexuals form a small minority of adults.

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An interview of gay, lesbian and bisexual adults showed that 41% reported being a victim of a hate crime after the age of 16. We have never been able to find data on the number of heterosexuals who report having been assaulted because of their sexual orientation, but we suspect that it is miniscule.

Thus, including sexual orientation as a protected class mainly benefits gays and lesbians.

Civil rights concerns:

On 1999-MAY-11, during the Senate Committee on the Judiciary hearings on Senate bill S. 622, the American Civil Liberties Union (ACLU) expressed concerns about the possible negative impact of the bill on the civil rights of defendants. They felt that when prosecutors described a hate crime at trial, they might go beyond the actual facts of the crime, and attempt to introduce prior statements describing the defendant's beliefs, or organizational memberships. The ACLU was able to find one case involving racial hatred where the government described a skinhead group's tattoo on the defendant's inner lip. Although there was no evidence that the skinhead group was involved in the violent act, the tattoo was mentioned as one indicator of the defendant's racism. They recommended that S. 622 be amended so that:

"In any prosecution under this section, 

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(i) evidence proving the defendant's mere abstract beliefs or 

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(ii) evidence of the defendant's mere membership in an organization,

shall not be admissible to establish any element of an offense under this section."

The ACLU repeated its concerns on 1999-AUG-4 before the House Judiciary Committee.

The "Rule of Evidence" section in the House version of the 2009 hate crimes bill addresses the ACLU's concern. It states:

"In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness." 8

References:

  1. "Key House votes taken," CitizenLink news briefs, Focus on the Family, 2000-SEP-12.
  2. Chuck Robb, "Robb hails Senate vote on hate crime legislation," 2000-JUN-21, at: http://www.senate.gov/member/va/robb/releases/nrjun21.html 
  3. Martha Kleder, "Constitutional implications of hate crimes," Focus on the Family at: http://www.family.org/cforum/fnif/news/A0013173.html 
  4. "Hawaii passes 'Hate Crimes' bill," CitizenLink/Focus on the Family newsletter, 2001-MAY-4
  5. Pete Winn, "Punishing hate...or family values?," Focus on the Family, at: http://www.family.org/cforum/feature/a0012891.html  
  6. Gregory Herek,et. al., "Hate crime victimization among lesbian, gay and bisexual adults," Journal of Interpersonal Violence, 12(2): Pages 195-215.
  7. C.E. Anders, "American Civil Liberties Union statement on S. 622: Hate Crimes Prevention Act of 1999," at: http://www.aclu.org/congress/l051199a.html
  8. "Text of H.R. 1913: Local Law Enforcement Hate Crimes Prevention Act of 2009," GovTrack.us, at: http://www.govtrack.us/

Copyright © 1999 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-APR-29
Author: B.A. Robinson

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