HR 1592 - the Hate Crimes Bill

HR1592 is a bill ostensibly designed to prevent hate crimes. It allows federal law enforcement agencies to assist local officials when a crime has been committed “motivated by prejudice based on actual or perceived race, color, origin, natural origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of state, local, or tribal hate crime laws.” The law also prohibits similar violent acts motivated by such hatred within certain federal jurisdictions involving interstate commerce.

On its surface, the hate crimes act would appear to be somewhat non-controversial. Nobody should be in favor of crimes of violence against anybody, let alone crimes of violence based on the kinds of prejudice listed in the act. The act even has a rule of construction which provides “nothing in this act, or in the amendments made by this act, shall be construed to prohibit any expressive conduct protected from legal protection by or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution.” It was introduced on March 20th of this year, scheduled for debate on April 25th and passed the House by a vote of 237 yes, 180 no, and 16 not voting.

The bill was passed by the House on May 3, 2007. But during the debate on the bill, Congressman Gohmert asked a simple question: “If a minister was giving a sermon, a Bible study, or any kind of written or spoken message saying that homosexuality was a serious sin and a person in the congregation went out and committed a crime against a homosexual, would the minister be charged with the crime of incitement?” After a lot of pressure by Congressman Lungren on the Congressmen sponsoring the legislation to answer the question, Democrat congressman Artur Davis from Alabama said that the answer to the question was “yes.” In other words, pastors could end up being prosecuted for inciting a hate crime as a result of this legislation if they were critical of homosexuality in the pulpit or in a Bible study, and if one of their congregants misunderstood this and took it as a justification for violence (Which it is not. The status of homosexual acts as sins does not in any way justify individuals acting violently toward people who commit those acts or who endorse them.).

Courts often look to the legislative history of a bill in order to interpret and understand it. A court applying federal law about criminal incitement would be very likely to consult this debate and conclude because of Congressman Davis’ statement that the law should apply to allow the prosecution of the minister with the errant congregant. Attempts to have the bill amended to provide better protection and clarification to prevent the kind of problem described above were largely unsuccessful. But, the rule of construction was successfully added by amendment about April 30th. It is possible that the rule of construction could be construed to prevent the kind of anti-Christian application discussed above. But it must be remembered that while the First Amendment is applied very broadly by the courts in matters such as flag burning and pornography, it is not given a broad scope with respect to the free exercise clause or certain types of speech. It would still be possible for the courts to conclude that anti-homosexual speech was not “protected speech” under the First Amendment. A fair or honest court would have to say that speech characterizing homosexuality as sin ought to be protected speech since it flows from religious, ethical, and moral debate that is almost as much at the core of religious speech as the proclamation of the gospel. In the current legal environment, this is by no means a foregone conclusion.

Hat tip to The Truth in Black and White.