With the news this week that the United States House of Representatives has passed, H.R. 1913, the Local Law Enforcement Hate Crimes Prevention Act of 2009, there is some concern about what this will mean for individuals or churches that express their religious beliefs regarding sexual orientation. 

I discussed the 2007 version of this bill in an an article published in Liberty (see Thought & Crime – March/April 2008).  Here is an excerpt from the article in which this bill was analyzed.  Read the full article for a larger discussion of the general topic of hate crimes:

In the United States, the "Local Law Enforcement Hate Crimes Prevention Act of 2007" ("Kennedy-Smith Act")(S. 1105 / H.R. 1592) would expand upon the current hate crime provisions of 18 U.S.C., Section 245 ("Section 245"),which has existed for more than 40 years. Section 245 was passed in the wake of the civil rights movement and allows the federal government to help investigate and prosecute bias-motivated attacks based on race, color, national origin, and religion, and because the victim was attempting to exercise a federally protected right. Section 245 was originally designed to make it possible for the federal government to step in when state or local officials were unable or unwilling to prosecute hate crimes. Kennedy-Smith adds actual or perceived sexual orientation, gender, and gender identity to this list. 

Under Section 245, an arsonist who burned a Pakistani restaurant in Salt Lake City on September 13, 2001, was sentenced to 51 months in federal prison after pleading guilty to a hate crime. However, the federal government could not intervene in a July 2005 Texas case in which four men brutally attacked a gay man with a vacuum cord and daggers, even when they told him they beat him because he was gay. 

In order to demonstrate the necessity of adding language regarding sexual orientation and gender, proponents of the Kennedy-Smith Act also cite cases such as United States v. Bledsoe, 1in which a convicted murderer argued against federal jurisdiction over the hate crime because he had killed a homosexual African-American man because he was a homosexual, not because of his race. 

The American Civil Liberties Union (ACLU), which has long opposed hate crime legislation because they believe that it would ultimately punish a belief, not an act, has come out in favor of the bill. 2The ACLU reasons that Kennedy-Smith is acceptable because it says that evidence of expression or association of the defendant may not be introduced as substantive evidence at trial unless the evidence specifically relates to that offense. 

The ACLU was primarily concerned about the possibility that prosecutors might focus on "guilt by association" with hate groups and then assume that any crime against a person of the targeted protected group is automatically a hate crime. 

The Kennedy-Smith bill would require that a defendant intentionally select the victim from a broader group, and would punish the act of discrimination, not bigotry. According to the ACLU's statement, this discrimination is an actual act whereas general bigotry is a thought. 

Although freedom of association is guaranteed in the Constitution, the Kennedy-Smith Act raises concerns that the federal government could obtain a criminal conviction on the basis of evidence of speech, even in the absence of other evidence. In United States v. Dunnaway , 3 a federal court upheld the admissibility of a skinhead tattoo on the inside lip of a defendant, even though there was no evidence linking the racist group to the violent crime, because "[t]he crime in this case involved elements of racial hatred." 

The Kennedy-Smith Act has met stiff opposition from conservative activists, including Charles Colson and Traditional Values Coalition chairman Lou Sheldon, among many others, who feel that this bill is about criminalizing Christian speech. In his May 3, 2007, syndicated newspaper column, Colson wrote: "This bill is not about hate. It's not even about crime.  It's about outlawing peaceful speech-speech that asserts that homosexual behavior is morally wrong." Colson then lists a number of currently protected activities that could be jeopardized, including preaching that homosexual behavior is a sin. Colson concludes with a warning, "[The Kennedy-Smith Act's] passage would strike at the very heart of our democracy." 4 

An accurate reading of the Kennedy-Smith Act, however, would demonstrate that religious speech itself will not be censored or criminalized. The bill also promises that evidence of expression or association of the defendant may not be introduced as substantive evidence at trial unless it specifically relates to the particular offense. 

This provision is only marginally protective, however, as a mildly-creative prosecutor could easily find ways to admit evidence as to bias and relate it somehow to the actual crime. This would be particularly useful in politically charged, high-profile cases. Any crime involving perpetrators and victims of different race, ethnicity, gender, or sexual orientation could conceivably become a federal case, even though the states would normally handle it. 

Although the proposed federal legislation purportedly protects the freedom of speech that does not lead to a crime, as more and more cases arise and society changes, the United States could follow the example of Canada and other nations in which hate speech is broadly defined and can be prosecuted whether or not it is accompanied by a physical act. 

As Justice Benjamin Cardozo correctly observed in Palko v. Connecticut,5 "[Freedom of thought] is the matrix, the indispensable condition, of nearly every other form of freedom." 

There is no question that violent criminals, acting against anybody, should be prosecuted to the full extent of the law. We must strive for a safe and secure society. However, in the midst of the fight for security, the freedom to think must be vigorously protected. 


1 728 F.2d 1094 (8th Cir. 1984), cert. denied, 469 U.S. 838 (1994). 
2 Caroline Fredrickson and Christopher Anders, "Letter to Senate Urging Affirmative Vote for Kennedy-Smith Hate Crimes Prevention Amendment" (July 13, 2007). Available online at www.aclu.org/lgbt/speech/30565leg20070713.html. 
3 88 F.3d 617 (8th Cir. 1996). 
4 Charles Colson, "The Thought Police: What the Hate Crimes Law Would Do," The Christian Post (May 3, 2007), available online at www.christianpost.com/article/20070503/27218_The_Thought_Police.htm. 
5 302 U.S. 319 (1937). 
6 The panel's decision is available online at http://www.albertahumanrights.ab.ca/legislation/Panel_Decisions/panel_decisLund.pdf 

 Read the full article at http://www.libertymagazine.org/article/view/710

 
 

6 Comments

  1. Kevin James says:

    Thank you, Michael, for a good analysis as far as I can tell. Since Canada's case it seems that hate crimes legislation in America has the potential to morph into hate speech, and then, maybe not. I just think hate crime legislation is simply redundant at this point. Hate is hate. Murder is murder. Enhanced penalties will do nothing to deter a hateful person from doing hateful things. If it starts moving towards hate speech then we need to definately seek to defend the right of a person to share belief without being treatened with penalties.

  2. Kevin James says:

    Thank you, Michael, for a good analysis as far as I can tell. Since Canada's case it seems that hate crimes legislation in America has the potential to morph into hate speech, and then, maybe not. I just think hate crime legislation is simply redundant at this point. Hate is hate. Murder is murder. Enhanced penalties will do nothing to deter a hateful person from doing hateful things. If it starts moving towards hate speech then we need to definately seek to defend the right of a person to share belief without being treatened with penalties.

  3. Monte Sahlin says:

    Your analysis makes it clear that any Christian who opposses this proposed law wants to have the right to hurt sinners that he/she disagrees with. Jesus never, ever permitted that under any circumstances. Even when his own life was at stake, he told Peter to put away his weapon and healed the man Peter had just cut. Anyone who opposses this law is not a genuine follower of Jesus. One's beliefs about homosexuality has nothing to do with it.

  4. Monte Sahlin says:

    Your analysis makes it clear that any Christian who opposses this proposed law wants to have the right to hurt sinners that he/she disagrees with. Jesus never, ever permitted that under any circumstances. Even when his own life was at stake, he told Peter to put away his weapon and healed the man Peter had just cut. Anyone who opposses this law is not a genuine follower of Jesus. One's beliefs about homosexuality has nothing to do with it.

  5. ReligiousLiberty.TV says:

    There is a difference between suppressing hate speech and upholding freedom of speech. I may have an opinion but I think it is also important to preserve the free speech of those whom I disagree with. It is a fine line but I would not draw such a general conclusion that "anyone who opposes this law is not a genuine follower of Jesus." There are multiple ways to look at this issue and what might seem like a simple comment may be interpreted as hate by another. It is difficult to draw these lines and thus there is reason for a considered look at the subject.

  6. ReligiousLiberty.TV says:

    There is a difference between suppressing hate speech and upholding freedom of speech. I may have an opinion but I think it is also important to preserve the free speech of those whom I disagree with. It is a fine line but I would not draw such a general conclusion that "anyone who opposes this law is not a genuine follower of Jesus." There are multiple ways to look at this issue and what might seem like a simple comment may be interpreted as hate by another. It is difficult to draw these lines and thus there is reason for a considered look at the subject.

 
 
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