U.S. hate crime laws:
Hate crime law arguments pro & con.
Civil rights concerns about these laws.
Arguments about hate crime legislation -- pro and con:
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
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:
There is growing evidence that sexual
orientation is not chosen. It has a strong genetic component.
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:
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.
** 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.
"Saying things like 'I think homosexuality is
a sin' or that 'Homosexuals can change' will become viewed as a hate
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
commentators appear to overlook a fundamental protection in law: the
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
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
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:
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
develop such relationships.
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
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
||Conservative 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
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.
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.
An interview of gay, lesbian and bisexual adults showed that 41%
reported being a victim of a hate crime after the age of 16. 6
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,
(i) evidence proving the defendant's mere abstract
(ii) evidence of the defendant's mere membership in
shall not be admissible to establish any element of an
offense under this section." 7
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
"Key House votes taken," CitizenLink news briefs, Focus
on the Family, 2000-SEP-12.
Chuck Robb, "Robb hails Senate vote on hate crime legislation,"
2000-JUN-21, at: http://www.senate.gov/member/va/robb/releases/nrjun21.html
Martha Kleder, "Constitutional implications of hate crimes,"
Focus on the Family at: http://www.family.org/cforum/fnif/news/A0013173.html
"Hawaii passes 'Hate Crimes' bill," CitizenLink/Focus on
the Family newsletter, 2001-MAY-4
Pete Winn, "Punishing hate...or family values?," Focus on
the Family, at: http://www.family.org/cforum/feature/a0012891.html
Gregory Herek,et. al., "Hate crime victimization among lesbian,
gay and bisexual adults," Journal of Interpersonal Violence, 12(2):
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
"Text of H.R. 1913: Local Law Enforcement Hate Crimes Prevention Act of
2009," GovTrack.us, at:
Copyright © 1999 to 2009 by Ontario Consultants on Religious
Latest update: 2009-APR-29
Author: B.A. Robinson