In October 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?
In 1969, Congress enacted a “hate crime” law. Over the years several attempts were made to add sexual orientation to the definition of a “hate crime,” and to criminalize all hate crimes rather than just those directed at persons participating in a government program. All attempts failed until the Matthew Shepard and James Byrd Hate Crimes Act, which makes it a federal crime to:
- 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
- Through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempt to cause bodily injury (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) to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of that person.
- 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 … religious … 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 several provisions, including the following:
- 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.
- It is difficult to imagine what more the Act could say to make it clear that ministers who address homosexuality from the pulpit, even critically, are not committing a hate crime.