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Preaching the Gospel Would be Against the Law! (And Other Hate Crimes Myths)

5 years ago
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With a Senate vote expected soon to expand federal hate crimes laws to include sexual orientation, religious conservatives are ramping up the rhetoric against the bill, which passed the House last week. Their anxiety is understandable. Democrats are behind the legislation, and at this month's gala for the Human Rights Campaign, the leading gay rights lobby, President Obama renewed his pledge to sign the bill.

In an effort to guarantee passage, Democratic leaders have attached the bill to a defense appropriations measure, which angers many Republicans who have been able to thwart the legislation in every Congress since 2001, when the bill was first introduced. (The bill is named after Matthew Shepard, a 21-year-old man beaten to death in Wyoming in October 1998 because he was gay, and James Byrd, a black man dragged to his death behind a pickup truck by a gang of white men in Texas a few months before Shepard's 1998 killing.)

Now, however, Republicans who vote to renew funding for the military will face the unpalatable prospect of having voted to broaden the scope of the current hate crimes law to include attacks targeting homosexuals and transgendered people. The bill also covers people with disabilities, though -- no surprise -- it is the inclusion of the LGBT (lesbian, gay, bisexual and transgender) category that is setting conservative teeth on edge.

The talking points being circulated among conservatives and repeated like video loops on talk shows are few but they are powerful -- and they are delivered with conviction:

Pastors would be hounded out of their pulpits or even rounded up because a hate crimes law would "criminalize" speech and particularly sermons that quote scripture saying homosexuality is a sin. The law would also "create" new rights for homosexuals and grant them "special protections" not accorded other Americans. And what the heck is a "hate crime," anyway? All crimes are hate crimes!

The charges sound convincing, but they quickly collapse on closer inspection.

Myth No. 1: Religious persecution is around the corner.

In June, 60 religious conservatives sent a letter asking senators to filibuster the bill, which they said "would criminalize preaching the Gospel and put preachers in the cross-hairs." The letter was signed by the likes of James Dobson of Focus On The Family, Don Wildmon of the American Family Association, and Wendy Wright of Concerned Women for America. Many Republicans, including Rep. Mike Pence of Indiana and Sen. Jim DeMint of South Carolina, agreed with them.

After the House passed the bill on Oct. 8, Tony Perkins of the Family Research Council renewed the charges, saying the legislation is an Orwellian "thought-crimes bill" that would give "special rights" to homosexuals. Rep. John Kline of Minnesota echoed that, saying that "any pastor, preacher, priest, rabbi or imam who gives a sermon out of their moral traditions about sexual practices could be found guilty of a federal crime."

But the bill in fact expressly prohibits any such thing, and at several points reaffirms all First Amendment and other constitutional protections on free speech and religious freedom. Among other things it says:
"Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the First Amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person's exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association..."
[The full text of the bill can be found here, near the bottom of the National Defense Authorization Act.]

Every earlier draft of this bill had some version of this language, though when the measure went to a House-Senate conference committee to iron out wording differences between the two, the conferees added a condition. It said nothing in the law would impinge on religious freedom unless prosecutors can demonstrate that the speech was "intended to: (A) plan or prepare for an act of physical violence; or (B) incite an imminent act of physical violence against another."

The "conditional" language set off more alarm bells for conservatives, but the additions were in reality designed to reinforce the point that a hate crimes bill deals with crime, not speech. It is about acts that have been committed or are about to be committed. As the folks at wrote: "Speaking disapprovingly of homosexuals from the pulpit would be one thing; encouraging one's congregation to form a lynching posse Saturday at 4 p.m. at the water tower is quite another."

Moreover, the Constitution has never provided a blanket protection on speech. FactCheck also cited the 1919 case of Schenck v. United States, in which the Supreme Court unanimously held that free speech doesn't mean you can "falsely shout fire in a theater" and thereby cause a stampede. As Chief Justice Oliver Wendell Holmes put it, "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger."'s "Truth-O-Meter" also judged the accusations of threats to free speech and religious protections as "false."

Myth No. 2: All crimes are hate crimes, so why create have a hate-crime law?

First, not all crimes are hate crimes. White-collar crooks often rob people they don't know enough to dislike. Even muggers on the street don't necessarily have a personal animus against the person they are assaulting; they just want the cash. Moreover, the law is full of degrees of criminality. Premeditated murder is not viewed in the same way as a crime of passion, just as rape is treated as an especially heinous type of physical attack that is meant to degrade a victim, and so is deserving of appropriate penalties.

Similarly, hate crimes that target people for who they are tend to be more violent than simple crimes of opportunity, like a robbery. The FBI counted more than 7,600 hate crimes in 2007 (the 2008 data will be released later this month) against a range of groups. Yet while assaults against homosexuals accounted for about 17 percent of all hate crimes (an increase of 5.5 percent, from 1,195 in 2006 to 1,265 in 2007) five of the nine hate crime killings were against LGBT victims. In addition, while less than a third of all hate crimes (31 percent) were violent assaults, nearly half of all crimes motivated by sexual orientation (47 percent) were violent crimes.

These figures demonstrate not only a high degree of anger toward homosexuals, but they also give an idea of the damage these attacks can inflict on an entire community. Just as a serial rapist on the loose sows fear among all women (and their families) and curbs their freedom, so too a hate crime "is meant to terrorize a community, not solely to victimize an individual," as Judy Shepard, the mother of Matthew Shepard, put it.

If blacks or Jews or Latinos or Christians -- or gays and lesbians -- cannot live in a neighborhood or walk the streets without fear of attack, then that climate of fear inhibits the free and full functioning of individuals and society. Laws not only make penalties to inflict on perpetrators who violate societal norms, they also make a statement about what a society values.

Finally, hate crimes are often connected to hate groups, such as the kind of white supremacist organizations and other right-wing extremists that are re-emerging in today's down economy. Local law enforcement officials cannot fight such interstate crimes without federal assistance.

Myth No. 3: Hate-crime protection for gays creates "new rights" that privilege them above others.

Nothing inflames public opinion more than the idea that someone, somewhere, is getting something everyone else is not. Hence the power of the argument that the new hate crimes bill would grant special privileges.

The problem with this accusation is that this bill actually expands existing hate crimes protections that have been in place since 1969. Those laws already provide protection for acts committed on the basis of the victim's race, color, religion or national origin. By including LGBT people, as well as people with disabilities, the new law would simply provide the same protections that others, including some of the very believers who are objecting to the bill, have enjoyed for 40 years.

And there is evidence that homosexuals are as much at risk as other groups. According to a June 2007 report by the Williams Institute (in a pdf format), on average, 13 in 100,000 homosexuals and bisexuals report being victimized, compared with 8 in 100,000 African-Americans, 12 in 100,000 Muslims and 15 in 100,000 Jews.

A spokesperson for House Republican leader John Boehner, who opposes the current hate crimes bill, told CBS News this month that Boehner supports the existing federal protections (based on race, religion, gender, etc) because they are "based on immutable characteristics."

That argument has two problems: One is that science indicates homosexuality is not a choice but is largely innate. Besides, if that's the "lifestyle" one chooses, should it not be protected from assault? A second problem is Boehner's apparent belief that religion is also innate, rather than something that can be changed. Indeed, surveys show that about half of all Americans do change their religious "orientation" or label at some point during their lives. That is hardly "immutable."

Myth No. 4: The hate crimes bill would protect pedophiles -- and worse.

One of the more objectionable objections is that, as one viral e-mail has it, the hate crimes bill will give "legally protected status to 30 sexual orientations, including incest."

A subsequent alert sent out by the Traditional Values Coalition (and picked up by politicians like Republican Rep. Louie Gohmert of Texas) listed some of the other supposedly protected sexual behaviors as exhibitionism and pedophilia.

"As a result," the Traditional Values Coalition charges, "if a parent assaults a pedophile for molesting a child, the parent can be convicted of a hate crime and receive an enhanced sentence." The TVC says the 30 behaviors are all listed in the American Psychiatric Association's standard reference work, the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV).

As puts it, "This is pure bunk." The DSM-IV explicitly states that sexual orientation "refers to erotic attraction to males, females or both." Pedophilia and incest and other criminal behaviors are not listed as "sexual orientations" and homosexuality is not listed as a sexual disorder.

Those are the facts, but they don't mean there aren't reasons for opposing the new hate crimes bill.

Social conservatives can argue, for example, that the bill is another step down the slippery slope to gay marriage. And some opponents, even in the gay community, worry that expanding the definition of hate crimes to include sexual orientation with foster a "culture of victimization" around homosexuals.

Andrew Sullivan, for example, is an openly gay and widely read political conservative who opposes the bill.

"I'm against hate crime laws -- every single one of them. I also understand and respect the argument for them, even as I strongly disagree," Sullivan recently wrote at his popular blog, The Daily Dish. Sullivan went on to denounce the GOP opposition to the bill as based on "bigotry -- and it's coming from the very top."

At the end of the day, of course, many will see conservative opposition to the hate crimes bill as politics-as-usual.

But assumptions that Republicans are acting in their own best interest -- throwing another bone to their hungry base -- may be the final myth about the hate crimes bill.

A May 2007 Gallup survey showed that Americans overwhelmingly favor (78-18 percent) hate crimes laws for acts "committed on the basis of the victim's race, color, religion or national origin." The positive ratio drops somewhat, to 68-27 percent, when respondents were asked whether sexual orientation and gender identity should be included.

But support for such an expansion of hate crimes laws was still 60 percent among Republicans and 64 percent among weekly church attenders.

Go figure.

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