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U.S. hate crime bills/laws 

Conservatives and liberals view bill
H.R. 1592 differently. Who is right?

Sponsored link.

Which side is closest to being in touch with reality?

Religious and social conservatives see the hate-crimes bill as a threat to their freedom to denigrate homosexuals, bisexuals and transsexuals. Religious and social liberals see the hate crimes bill as offering protection against hate-motivated crime that is normally intended to injure one person and terrorize an entire group.

We suggest that both liberal and conservative voices concerning HR 1592 are somewhat off base in their claims.

bulletLiberals claim that the First Amendment of the U.S. Constitution guarantees freedom of speech in the U.S. Thus, a pastor can freely express racism, sexism, homophobia, religious intolerance, xenophobia, etc. from the pulpit with impunity.

Two cases surfaced a few years ago that support this claim. Both involved conservative Christian pastors in Texas. One called for the arrest and stoning to death of Wiccans in accordance with Old Testament law, and was wildly applauded at the time by his congregation. Another pastor urged the U.S. Army to commit genocide by rounding up Wiccans and burning them to death in groups with napalm. Neither pastor was charged with any crime. To our knowledge, there not even criticism of the pastors by anyone outside of the Neopagan community.

However, the First Amendment is not absolute. it is still illegal to falsely yell "Fire" in a crowded movie theatre. Erik Stanley and Mathew Staver wrote an article on the Liberty Counsel web site describing a hypothetical case where a pastor opposed to equal rights for homosexuals might possible be charged as a co-conspirator with a gay basher. In their article, they referred to homosexuality as a lifestyle, thus implying that it is a chosen and changeable behavior rather than a sexual orientation. Although this article referred to an earlier bill that failed to become law, it is applicable for HR 1592 as well. They wrote, in part:

"The possibility for a conspiracy prosecution is even more possible in states with expansive definitions of conspiracy that only require agreement to pursue an objective that may be lawful (i.e. opposition to the homosexual lifestyle) in an unlawful manner and that the crime committed was a natural and foreseeable consequence of the agreement. It is conceivable that a minister who preaches a strong sermon against the homosexual lifestyle and urges his or her congregation to do whatever necessary to oppose the lifestyle could be prosecuted for conspiracy if a member of the congregation who hears the sermon misinterprets it and commits an offense covered by the Hate Crimes Bill. This could occur even though the minister never intended or even dreamed that violence would be used as a result of his or her sermon on the issue but had merely chose his or her words carelessly or in a way that could have been misinterpreted. As long as a jury could find that there was an agreement to oppose the homosexual lifestyle (a lawful objective) and that the crime (unlawful means of pursuing the objective) was a natural and foreseeable consequence of the sermon, the minister could be convicted."

"For sure, the situation described above should be distinguished from the minister who actively advocates and urges his or her congregation to commit bodily harm against homosexuals. Such an advocate would certainly and rightfully be held accountable. However, a minister who perhaps carelessly chooses his words but has the purest of motives could be prosecuted. Such an outcome should not be left to the discretion of a prosecutor or judge who may have a personal agenda to promote or to a jury inflamed by public opinion." 1

Thus, if a member of the congregation of either of the Texas pastors left the religious service and engaged in stoning, napalming, or even bashing a Wiccan with a baseball bat involved in inter-state commerce, the clergyperson might possibly be charged with conspiracy.

If a hate crime law were signed into law, a pastor who intended to preach against equal rights for gays and lesbians might wish to preface her or his remarks with the insistence that his congregations' opposition to homosexuals be non-violent. It could be argued that this requirement might have a chilling effect on his/her freedom of speech.

The Liberty Counsel article did not mention that:

bulletA hypothetical pastor who engaged in hate speech and motivated a member of his congregation to commit a hate crime would not himself/herself be prosecuted under this bill. The bill covers hate-motivated violent crimes; It has no provision to charge a person who engages in hate speech.
bulletIf the hate crime bill does not pass, the hypothetical pastor could theoretically still be charged of conspiracy under existing laws.

One might also ask whether it is probable for a pastor to deliver a sermon so filled with hatred that it would motivate a member of the congregation to commit a violent hate crime.

bulletConservatives: On 2007-MAR-28, the American Family Association circulated a statement saying:

"The Hate Crimes Act [sic] threatens religious leaders with criminal prosecution for their thoughts, beliefs and statements."

Although such comments are common among religious and social conservatives, they are almost completely without merit. One cannot be prosecuted for one's thoughts and beliefs. One can only be prosecuted for actions, including making inflammatory statements that could be expected to motivate physical attacks by others, as described in the above section.

"Slippery slope" argument:

Some conservatives have suggested a "slippery-slope" argument: that the proposed hate-crimes bill takes the U.S. one step closer towards the type of oppressive laws against hate propaganda in place in Canada.

The Criminal Code of Canada is effective throughout the ten provinces and three territories. Under the topic "hate propaganda" it lists two crimes:

bulletSection 318 deals with either advocating or promoting genocide. It says, in part:

"Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. ... "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely, (a) killing members of the group; or (b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction. ... "identifiable group" means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation."

If such a law were to be passed in the U.S., it would definitely restrict the freedom of speech of everyone who wishes to advocate genocide of heterosexuals, bisexuals, homosexuals, blacks, whites, Asians, Americans, Catholics, Protestants, Neopagans, Atheists, etc. However advocating the genocide of men, women, old folks, computer geeks, the homeless, transsexuals, or Pontiac drivers is apparently acceptable, in Canada.

The U.S. has a "Genocide Convention Implementation Act of 1987" commonly called the Proxmire Act, that is similar to Section 318 in Canada. It criminalizes actual genocide of national, ethnic, racial, and religious groups. It also criminalizes the incitement of others to commit genocide, but only if "there is a substantial likelihood of imminently causing such conduct." That is, unlike in Canada, simple advocacy is insufficient to warrant a charge. It must be so outrageous that it is likely to generate violence. Again, women, men, computer geeks, the homeless, transsexuals, and Pontiac drivers are fair targets.

bulletSection 319 of the Criminal Code of Canada deals with "communicating statements, other than in private conversation, [that] wilfully promotes hatred against any identifiable group." However, section C states that:

"No person shall be convicted of an offence ... if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text."

This protects pastors and other Christians expressing hatred against persons on the basis of their sexual orientation, as long as they base their argument on their religious books or teaching.

So, even if HR 1592 were to be signed in to law and led to a gradual drift towards the adoption of Canadian federal legislation, it would not be an onerous problem for anyone wishing to denigrate homosexuals.

Of course there is human rights legislation at the provincial/territorial level which are more broadly worded. But that is not part of federal law

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. E.W. Stanley & M.D. Staver, "The impact on hate crimes laws upon religious organizations and clergy," Liberty Counsel, 2001, at: http://www.lc.org/
  2. Ralph G. Neas, "Hate Crimes, Religious Liberty, and the Right?s Propaganda." People For the American Way. 2007-MAR-29, at: http://www.pfaw.org/
  3. "Hate Propaganda," Criminal code of Canada, at: http://laws.justice.gc.ca/ Search for sections 214-378.

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Copyright © 2007 to 2009 by Ontario Consultants on Religious Tolerance
First posted: 2007-MAY-02
Latest update: 2009-JUN-28
Author: B.A. Robinson

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