This week, the Montana legislature killed a bill that would have added crimes motivated by the victim’s sexual orientation to the state’s existing hate-crimes law. Opponents worried that such a provision would be used to target religious leaders preaching against homosexuality from their pulpits. Last week, a state lawmaker in Pennsylvania introduced legislation to remove language about sexual orientation from the state’s hate-crime law—language first inserted only in 2002. His bill was inspired by the arrests of 11 evangelical protesters at a gay-pride festival last fall. All charges were dismissed last week, but some of the defendants are now suing the prosecutors for bringing charges under Pennsylvania’s hate-crimes or “ethnic intimidation” statute. And in Sweden, a pastor who’d been convicted under a broad national hate-crimes law for a sermon describing homosexuality as “something sick” and comparing it to pedophilia and bestiality was acquitted by an appeals court last week, which declared his words were protected by the country’s free-speech laws. The Swedish hate-crime laws were amended to include homosexuals in 2003.
In the new push-me-pull-you of hate-crime legislation, gay-rights groups are winning victories by having crimes motivated by sexual orientation added to state laws, and conservative groups are just as quickly stripping it out based on constitutional claims of free speech and religion. There is a strange counterintuitive argument heating up across the land, based on the strange theory that it’s not OK to hate based on race or religion, but that hating gays is somehow materially different.
In 1981, the Anti-Defamation League released its model hate-crimes legislation, and 41 states and the District of Colombia have adopted similar laws, usually providing for enhanced sentences for hate-based crimes. (Arkansas, Georgia, Hawaii, Indiana, Kansas, New Mexico, South Carolina, and Wyoming have no hate-crime laws of any sort.) Twenty-four states currently include criminal acts based on sexual orientation in their statutes, as does the ADL model legislation. In 1990, the federal Hate Crimes Statistics Act was passed, requiring the Justice Department to collect statistics on all hate-motivated crimes. And Title 245 of Section 18 of the U.S. Code is the current federal hate-crime statute, allowing federal prosecution of hate crimes for intentional interference with the enjoyment of a federal right or benefit. Efforts to amend that statute in 1999 to include crimes based on gender, sexuality, and disability failed then and have every year since. The current statute punishes hate crimes based only on race, color, national origin, or religion.
There are two main objections to these hate-crime statutes. The broad one is that, in general, a “hate crime” punishes mere speech or state of mind and is thus unconstitutional. This argument sweeps too broadly. No hate-crimes legislation targets constitutionally protected speech alone; that’s why Bill O’Reilly and Rush Limbaugh still roam free. The basis of hate-crime legislation is the enhancement of penalties for conduct that is already criminal. Those Philadelphia protesters were arrested for refusing to obey police orders to relocate, not for the act of preaching itself. The U.S. Supreme Court agreed with this principle in 1993 with its unanimous decision in Wisconsin v. Mitchell. In Mitchell, the defendant was convicted of aggravated battery—a crime carrying a maximum sentence of two years. But the jury found he had intentionally selected his victim based on race, so his sentence was increased to seven years under Wisconsin’s provision for hate crimes. The Supreme Court found that scheme constitutional, holding that “physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.”
The burgeoning new argument is that hate crimes against traditionally victimized groups are legitimate, but expanding their definition to include gays, women, or the disabled is not. There are several interrelated ideas put forth by this latter camp. One is that women, gays, and the disabled were not historically and systemically singled out for abuse and oppression and so don’t warrant special victim status under the law. Another is that there is no national epidemic of hate crimes against gays; this is an invention of the media. For instance, the FBI’s Uniform Crime Reports study showed that in 1999 all hate crimes constituted less than one-tenth of 1 percent of criminal acts nationwide.Gay and lesbian groups counter with statistics suggesting that crimes against homosexuals are the third-most-prevalent type of hate crimes in the country. And the most ingenious new suggestion is that you can hate gayness without hating gays; that it’s not persecution when you attack someone on the basis of sexual preference, it’s merely an expression of your own religious freedom.
These new arguments for stripping sexual orientation from hate-crimes laws are conflations of all that is most wrong in the two classes of arguments above: They assume that non-criminal religious free speech would suddenly be swept up into the hate-crime net and that no religious person preaching that homosexuality is wrong would be safe. But unless there is an underlying criminal offense of “preaching” in this country, both claims are simply inaccurate. The free-speech laws regarding hateful speech are quite clear: Unless you are inciting your listeners to do imminent violence, your speech is protected. The Orwellian notion that you can be jailed for your moral statements alone does not reflect the truth of the hate-crimes laws.
If we are going to debate whether gender, disability, or sexual preference should be added to state and federal hate-crimes legislation, let’s have the rational, well-informed version of it. There are valid arguments on both sides. Slippery-slope arguments about wholesale jailings of the nation’s clergy is mere fear-mongering, and debates over who’s the biggest victim rarely result in fruitful policy.