Is Preaching About Homosexuality a Hate Crime?

Limitations of the new Hate Crimes Act.

In October of 2009 President Obama signed into law the Matthew Shepard and James Byrd Hate Crimes Act as part of the National Defense Authorization Act. This legislation created a firestorm of controversy, with exaggerated and unfounded claims being made on all sides. According to some, pastors who preach against homosexuality from the pulpit, or even quote passages of the Bible pertaining to homosexuality, will be guilty of a hate crime. Is this fear warranted?

Background

In 1969, Congress enacted a “hate crime” law making it a crime to use force or threat of force to “willfully injure, intimidate or interfere with” any person “because of his race, color, religion or national origin” in enjoying any “benefit, service, privilege, program, facility or activity” administered by the federal or any state government.

Over the years several attempts were made to add sexual orientation to the definition of a “hate crime” under this legislation, and to criminalize all hate crimes rather than just those directed at persons participating in a government program. All of these attempts failed until 2009, when the Matthew Shepard and James Byrd Hate Crimes Act was passed by both houses of Congress and signed into law by President Obama.

Text of the new law

The Matthew Shepard and James Byrd Hate Crimes Act (the “Act”) makes it a federal crime to “willfully cause bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempt to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person.” Persons who violate this law may be imprisoned for up to 10 years, and may be assessed a monetary fine. Stricter penalties, including the death penalty, apply if death results from an offense.

The Act defines “bodily injury” to mean a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary. However, the Act adds that bodily injury “does not include solely emotional or psychological harm to the victim.”

The Act contains the following four explicit protections for religious speech:

First, it states that it shall not be construed or applied in a manner that substantially burdens any exercise of religion, regardless of whether compelled by, or central to, a system of religious belief, so long as an exercise of religion is not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another.

Second, it states that it “shall not be construed to allow prosecution based solely upon an individual’s expression…religous… or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.”

Third, it states that it “shall not be construed to diminish any rights under the First Amendment to the Constitution of the United States.”

Fourth, it states that it “shall not be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment to the Constitution of the United States and peaceful picketing or demonstration.” The Act contains the following additional provisions:

  • It authorizes the United States Attorney General to: (1) provide state and local law enforcement agencies with technical, forensic, prosecutorial, or other assistance in the investigation or prosecution of violent crimes and hate crimes; and (2) award grants to assist such agencies with the expenses associated with the investigation and prosecution of hate crimes.
  • It authorizes appropriations to the United States Department of Justice to prevent and respond to hate crime acts.
  • It requires the United States Attorney General to issue guidelines for hate-crime offenses.
  • It authorizes funds to increase the number of personnel to prevent and respond to alleged violations of the Act.
  • It specifies that the courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a crime. This provision prohibits the admissibility of evidence pertaining to language or associations unless specifically related to the underlying offense.

Constitutionality

Will the Matthew Shepard and James Byrd Hate Crimes Act be struck down by the courts as unconstitutional? Possibly, but not likely. There are two possible challenges:

  • Violation of the First Amendment. The several protections the Act contains for religious speech make it unlikely that a court will find that it violates the First Amendment.
  • Commerce clause. Congress can only enact legislation pursuant to authority delegated to it in the United States Constitution. The Matthew Shepard and James Byrd Hate Crimes Act, like many federal laws, is based on congressional authority to regulate interstate commerce. The Act clarifies that it only applies to conduct that “affects interstate commerce,” which has the effect of bolstering its constitutionality.

In 1993, the United States Supreme Court upheld a Wisconsin hate crimes law that allowed judges to increase criminal penalties for certain crimes if a perpetrator selected a victim on the basis of race, religion, color, disability, sexual orientation, national origin or ancestry. Wisconsin v. Mitchell, 508 U.S. 476 (1993).

The Supreme Court, in upholding the Wisconsin law, stressed that the law did not punish motive or thought, but rather increased the criminal penalty for criminal conduct. According to this ruling a pastor could not be prosecuted for preaching against homosexuality, since this would involve punishment of thought rather than conduct. This is the very distinction that is embedded in the Matthew Shepard and James Byrd Hate Crimes Act.

Conclusions

The Matthew Shepard and James Byrd Hate Crimes Act makes it a crime to:

(1) Willfully cause bodily injury to another person because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of the person; or

(2) Through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempt to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of that person.

Bodily injury is defined to exclude emotional or psychological harm.

The Act includes several explicit protections for religious speech. It would be difficult to imagine what more the Act could say to make clear that ministers who address homosexuality from the pulpit, even critically, are not committing a hate crime.

Also, note that the Act’s protections go well beyond sexual orientation, and include religion. This means that persons who cause bodily injury to others because of their religious beliefs will be subject to the very same sanctions as those who injure persons because of their sexual orientation.

• Example A pastor quotes verses from the Bible during a sermon that condemn homosexuality. The pastor has not violated the Matthew Shepard and James Byrd Hate Crimes Act for the following reasons: (1) The pastor did not cause bodily injury to any person due to that person’s sexual orientation. (2) The Act states that it shall not be construed or applied in a manner that substantially burdens any exercise of religion, regardless of whether compelled by, or central to, a system of religious belief, so long as an exercise of religion is not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another. (3) The Act states that it “shall be construed to allow prosecution based solely upon an individual’s expression of … religious …or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.” (3) The Act states that it “shall not be construed to diminish any rights under the First Amendment to the Constitution of the United States. (4) The Act states that it “shall not be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment to the Constitution of the United States and peaceful picketing or demonstration.” (5) Finding a pastor guilty of a crime based on thought or bias without any underlying conduct would violate the First Amendment according to the United States Supreme Court’s ruling in Wisconsin v. Mitchell, 508 U.S. 476 (1993)

• Example Same facts as the previous example except that persons in the congregation claim that they suffered emotional distress due to the content of the sermon. The pastor has not violated the Matthew Shepard and James Byrd Hate Crimes Act since he did not cause bodily injury to anyone due to their sexual orientation. The Act only punishes the infliction of bodily injury on others due to several grounds, including sexual orientation, and it specifically excludes emotional or psychological harm from the definition of bodily injury.

• Example A pastor physically assaults a person on church premises following a worship service due to the person’s perceived sexual orientation. This conduct constitutes a hate crime in violation of the Act.

• Example A pastor refuses to perform a marriage ceremony for a same-sex couple. The pastor has not violated the Act.

• Example A Christian is severely beaten because of his religious beliefs. This is a hate crime that violates the Act.

• Example A pastor encourages and incites the congregation during a sermon to physically assault a named person because of his sexual orientation. This conduct may constitute a hate crime in violation of the Act.

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2010 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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