Hate Crimes and the Gospel

On May 3, the U.S. House of Representatives voted to pass the Local Law Enforcement Hate Crimes Prevention Act of 2007. The Senate will take up a companion bill, known as the Matthew Shepard Act, when it returns from its summer recess. If enacted, this law would authorize the Justice Department, in certain narrowly defined circumstances, to criminally prosecute an individual who “willfully” causes bodily injury to another person or, “through the use of fire, a firearm, or an explosive ... attempts to cause bodily injury” to another person, because of that person’s race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.

A coalition of conservative African-American pastors has aggressively lobbied against this legislation on the premise that it would make it unlawful for them to preach that homosexuality is a sin. Bishop Harry R. Jackson, Jr., pastor of the Hope Christian Church in Lanham, Virginia, for example, has asserted that the Act would “keep the church from preaching the Gospel.”

This objection to the legislation is fanciful. To begin with, there is no doubt of the Act’s constitutionality. In 1993, the Supreme Court unanimously upheld a virtually identical state law in Wisconsin v. Mitchell. The Court made clear that “a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.” Moreover, the Court emphasized that the government has a perfectly legitimate interest in punishing “bias-motivated crimes,” because such crimes are especially likely to inflict emotional harms on their victims, incite community unrest, and provoke retaliatory violence.

Of course, the Christian pastors do not intend to assault anyone physically. Their claim, rather, is that they could be prosecuted under the law merely for preaching against homosexuality. They fear that such sermonizing might be transmogrified by the law into an “attempt” to incite members of their congregations to lynch gays because of their sexual orientation.

For at least three reasons, this argument is completely unfounded. First, the Matthew Shepard Act would not prohibit “attempts to incite.” It would prohibit only the actual infliction of bodily harm and attempts to cause bodily harm. The latter refers to firing a gun and missing, not giving a sermon in church.

Second, it is settled First Amendment law that an individual cannot constitutionally be punished for attempting to incite others to commit crimes unless the speaker expressly incites unlawful conduct and such conduct is likely to occur imminently. The last time the Supreme Court upheld a criminal conviction for incitement was more than half a century ago, in the case of Dennis v. U.S., and that involved incitement to violent overthrow of the government. Unless the pastors intend to expressly incite wild-eyed mobs to beat up gays because of their sexual orientation, they are in no danger from this law.

Third, the legislation expressly provides that “nothing in this Act ... shall be construed to prohibit any expressive conduct protected” by the First Amendment. In other words, indeed, in the most explicit words possible, the Act could not be applied to the pastors unless their sermons are unprotected by the First Amendment, a concept that is impossible to imagine.

The First Amendment protects the right of Nazis to march in Skokie, the right of racists to assert that blacks are inferior, the right of atheists to denounce Christianity, and the right of homophobes to condemn homosexuality. The argument of the pastors that the proposed legislation in any way threatens their right to preach their version of the Gospel is, to be frank, ridiculous.

Of course, there might be rational reasons to question the wisdom of this legislation. But the argument that it endangers the First Amendment rights of these Christian pastors is certainly not one of them.

Comments

[ctw]

"Why is the first offense a hate crime, and the second and third not?"

According to Wikipedia, hate crimes are identified by being perpetrated against a "victim because of his or her membership in a certain social group, usually defined by race, religion, sexual orientation, disability, ethnicity, nationality, age, gender, gender identity, or political affiliation. Hence, under that definition 1 and 3 are, 2 isn't.

An alternative discriminator might be purpose. Eg, race-based crimes and gay bashing often are committed for no purpose other than to inflict suffering on somebody based only on their membership in a social group, not for any secondary motive (personal gain, political effect, et al). If one (reasonably IMO) excludes "profession" or "level in a hierarchy" as defining a "social group", then 1 remains a hate crime, 2 remains not, but 3 becomes debatable given the emergence of integrity-free opportunists like Ann Coulter who tacitly - or perhaps explicitly - I'm not sure, not being a coprophagiac - promotes violence against liberals/democrats based purely on their identity as such, not in order to achieve any specific political result.

Under that discriminator, rape also is debatable. If for the purpose of sexual gratification (unimaginable though that may be to some of us), it wouldn't qualify; if for the purpose of debasement, it might.

Charles

[Frederick Hamilton]

Eras,
Again, I am not the one who has stated the M13 gangs of illegal aliens are killing blacks because they are black and engaging in ethnic cleansing, it is the authorities in California. Are the authorities engaging in hyperbole because the gangs haven't come out and said they are trying to eliminate a race? Possibly. The salient point is they are killing based on race. Is that not a hate crime? I come on here I suspect as much as anyone about crime, criminals, approprate punishment, et al. Tough to be on here every day, as I really do have a day job.

Outrage. Yes, I am outraged at every murder. I am particularly outraged at the murder of three young blacks about to leave Newark for the safe confines of Delaware State University only to be executed by illegal immigrant residents of a sanctuary state and city. I know that does not fly well on this liberal law blog but that is OK. It shows the hypocrisy of "hate crimes" talk by liberals. Yep. I am outraged by murders of blacks, whites, homosexuals, heterosexuals and believe the perpetrators should be executed themselves based upon the facts of the crime. I am seriously outraged that government entities can claim sanctuary from the laws of the country and doubly outraged at the federal governments complicity in the sanctuary status of illegal immigrants. I am seriously outraged that these fine young black people were caused to be executed by the failures of government at all levels. I am not suprised that liberals are hypocritical when a single homosexual man is killed for hateful reasons but look the other way when blacks are killed for hateful reasons and for reasons that they won't deal with (illegal aliens given sanctuary).

[vam]

The gang is called MS-13, not M-13. Perhaps you should learn more about it before you attempt to use it to derail the discussion.

[Frederick Hamilton]

Sorry, MS-13. My error. Doubt I'll derail the discussion. Just not comfortable with the concept of hate crimes and ignoring the clear hate crimes of some groups and the failure of the legal community (judges, lawyers, law schools, police, governments to address the wink and the nod toward criminal illegal alien activity). The NJ AG just agreed to all law enforcement notifying the feds regarding apprehension of illegal aliens. Most state AG's won't even discuss it. Strange.

[Erasmussimo]

Mr. Hamilton, you write:

"I am not suprised that liberals are hypocritical when a single homosexual man is killed for hateful reasons but look the other way when blacks are killed for hateful reasons and for reasons that they won't deal with (illegal aliens given sanctuary)."

Can you substantiate your claim that liberals look the other way? Can you provide a quote from a prominent liberal saying, "I really don't care that three young blacks were murdered?"

[Frederick Hamilton]

Eras,

You know that no politician with a brain would say such a thing. Words mean nothing. Deeds mean everything. Suffice it to say our laws mean nothing to most cities and states and the ignoring of the law and looking the other way starts with the federal government itself. Doesn't seem to matter if it is liberal or conservative, Republican or Democrat.

The people of America aren't stupid and I am anxious to see how the immigration issue plays out in the 2008 elections. From president down to city council. Most Americans are fed up with the hypocrisy, injustice, total lack of justice, the wink and the nod, and all the rest of the malarky that goes with our immigration laws and those in a position to enforce them. The immigration fiasco in America today is as big an issue as Iraq. Lawyers and law school blogs won't talk about it because it would require them to acknowledge that the law is irrelevant to those that are ethically bound to enforce the law and demonstrates the hypocrisy of liberals and conservatives. I think there just may be a political price to pay in 2008 on both sides of the aisle for the morass cities, states, judges, lawyers and police find themselves in.

Whats that old saw...Ignorance of the law....? Ignoring the law is worse and means that the law is a game and we really aren't a nation of laws. Or maybe just a nation where we can pick and choose what laws we will abide by. So to simply add another law, a "hate crime" law is a joke. A rather sick one, but a joke.

[Erasmussimo]

OK, Mr. Hamilton, so you have no evidence to support your claims about the beliefs of liberals. Your claims are solely the result of personal prejudice.

[Frederick Hamilton]

Eras,
Mea Culpa, I shouldn't have only chastised liberals. Liberals, conservatives, Republicans and Democrats. All guilty of a complete trashing of our immigration laws. As mentioned, I think the public at the ballot box is going to extract a price from Repubs and Dems, liberal and conservative, regarding immigration and the wholesale ignoring of the issue/problem. This is a big issue. And with the gangs of illegals it is a part and parcel of the "hate crimes" some don't like visited on the gay community and now visited on the black community.

[Vivian]

Hate crimes. Shouldn't all violent crimes be hate crimes- where the perpetrator displays no regard for the victim? The designation 'hate crime' actually discriminates against certain groups. Why should not victims in all groups have the right to expect that those carrying out specific acts/crimes against them to receive the harshest penalty or sentence possible under the law? And about motivation: If someone bashes my head in numerous times while yelling, "I love you, I love you", will he/she be given a lighter sentence?

[Vivian]

I was not writing about a crime of passion above in the last sentence. Its about two people with no history. What would a witness to the crime and to the words have to offer about intent for hate crime criteria? Hate crime classification seems too arbitrary.