Would federal hate-crimes law threaten religious freedom?
By Charles C. Haynes
May 3, 2007, will go down in history as either a civil rights milestone or a day of infamy — depending on which side of the culture war you’re on.
That’s the day the U.S. House of Representatives voted 236 to 180 to pass H.R. 1592, the Local Law Enforcement Hate Crimes Prevention Act of 2007. Among other things, the bill extends the definition of “hate crimes” to include violent attacks on people because of sexual orientation, gender, gender identity or disability.
After the vote, a coalition of some 200 gay and other civil rights organizations celebrated what one gay newspaper hailed as the first “free-standing gay and transgender civil rights bill” to pass either house of Congress.
Christian conservative groups are condemning the legislation with an outrage ranging from apoplectic to apocalyptic.
“Under the cover of fighting so-called ‘hate crimes,’ ” writes Lou Sheldon of the Traditional Values Coalition, “H.R. 1592 will be used to fund anti-Christian, pro-homosexual/drag queen materials for children — and divert scarce federal resources away from fighting Islamic terrorism.”
Evangelical leader Chuck Colson warns the bill’s intent is “to shut down freedom of speech, freedom of religion, and freedom of thought. Its passage would strike at the very heart of our democracy.”
The civil rights coalition and Christian Right organizations could not have more divergent views on the meaning of H.R. 1592.
Proponents say violent attacks on people based on their sexual orientation or gender identity are a widespread problem affecting not only the victims but also an entire community of people and their families — urgently requiring federal intervention.
Opponents counter that adding hate-crimes laws to existing criminal laws is an unnecessary and unconstitutional expansion of federal control — and will do nothing to deter attacks.
But the biggest divide, and the source of the hottest debate, is the issue Colson raised: Will this law lead to restrictions on the religious freedom and free speech of religious people who oppose homosexuality?
To the bill’s supporters, the answer is an emphatic no. H.R. 1592 applies only to violent acts, not to speech. To underscore this point, the authors amended the bill to make clear it wouldn’t prohibit what the First Amendment protects.
Christian conservatives strongly disagree, arguing that hate-crimes laws in Europe and Canada are used to intimidate Christian pastors who preach against homosexuality. It is worth noting that the case most often cited — the conviction of the Rev. Ake Green in Sweden — ended with his acquittal by the Swedish Supreme Court in 2005.
However much or little religious speech is chilled abroad, the U.S. isn’t Europe or Canada. The First Amendment protects all kinds of controversial speech for and against homosexuality — religious and otherwise.
Nevertheless, Christian conservatives claim H.R. 1592 would weaken that protection by potentially criminalizing speech against homosexuality. They argue, for example, that the law could be used to prosecute a minister who preaches a strong sermon condemning homosexuality if someone in the pews goes out and commits a hate crime against homosexuals.
But unless the minister, in a manner likely to incite imminent lawless action, directs people to commit violence — speech that isn’t protected by the First Amendment now — it’s difficult to see how this law would restrict what is said from the pulpit, however strongly stated.
Moreover, the danger of hate-crimes laws to free expression isn’t supported by our experience of living under such laws. Under the present federal hate-crimes law (which covers attacks based on race, ethnicity, national origin and religion) and the 45 state hate-crimes laws (32 of which include sexual orientation) nobody has been convicted of a hate crime solely on the basis of thought, belief or speech.
There is one American case some religious conservatives frequently invoke. In 2004, Christian activists protesting a Philadelphia gay-pride event were charged with offenses including ethnic intimidation under Pennsylvania’s hate-crimes law. A state court eventually dismissed all charges, ruling that protesters were exercising First Amendment rights — and had not violated the hate-crimes law.
Is this an isolated case or a harbinger of worse to come? It’s certainly possible that another overzealous prosecutor could try using the hate-crimes law to stifle religious speech. But widespread misuse is highly unlikely given the record of prosecutions under existing hate-crimes laws over several decades.
For all of the First Amendment debate, the real concern among conservative Christians may be more symbolic than legal. After all, even if the bill passes the Senate, a likely presidential veto will keep it from becoming law.
But the larger message of the House vote is that a majority of representatives may now be ready to enact other laws protecting people from discrimination based on sexual orientation and gender identity. More than threats to free speech, it is the mainstream acceptance of gay, lesbian, bisexual and transgender people that many Christian conservative groups most fear.
That’s why victory bells on one side are answered by alarm bells on the other.
Charles C. Haynes is senior scholar at the First Amendment Center in Arlington, Va.