Friday, October 09, 2009

Hate Crimes Bill Included In Defense Authorization Conference Report Passed By House

It appears that the long battle to expand federal hate crimes legislation is about to succeed. (See prior posting.) The Conference Report on HR 2647, the 2010 Department of Defense Authorization Bill, included in the bill the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act. Yesterday the House of Representatives approved the Conference Report by a vote of 281-146. The Conference Report now goes to the Senate for its approval. President Obama has promised to sign the legislation.

According to a release from the Senate Armed Services Committee, the hate crime provisions will (1) prohibit hate crimes based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person; (2) provide support for the criminal investigation and prosecution of hate crimes by State, local, and tribal law enforcement officials; and (3) prohibit attacks on United States service members based on their military service.

Yesterday's Los Angeles Times reports that 131 of the 146 "No" votes were from Republicans who object to the hate crimes legislation, despite language designed to protect religious speech and association. Conservative Christians have argued that the bill could be used to prosecute pastors for anti-gay sermons that are later connected to violence against gays. Here are the provisions in the Conference Report intended to deal with this issue (at pp. 1366-69):
SEC. 4710. RULE OF CONSTRUCTION.
For purposes of construing this division and the amendments made by this division the following shall apply:

(1) IN GENERAL.—Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.

(2) VIOLENT ACTS.—This division applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim.

(3) CONSTRUCTION AND APPLICATION.—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, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to—
(A) plan or prepare for an act of physical violence; or
(B) incite an imminent act of physical violence against another.

(4) FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

(5) FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(6) CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall 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 Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

SEC. 4711. GUIDELINES FOR HATE-CRIMES OFFENSES.
Section 249(a) of title 18, United States Code, as added by section 4707 of this Act, is amended by adding at the end the following:

"(4) GUIDELINES.—All prosecutions conducted by the United States under this section shall be undertaken pursuant to guidelines issued by the Attorney General, or the designee of the Attorney General, to be included in the United States Attorneys’ Manual that shall establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person."
ADL issued a press release welcoming the House action and said the next step is training for law enforcement personnel and prosecutors about the new law. The Family Research Council issued a statement criticizing the legislation, calling it a "thought-crimes bill" and charging that it gives special rights based solely on sexual behavior.

4 comments:

Michael Koplow said...

As a legal layperson (and as a person who could conceivably "benefit" from this--I'm an OrthoJew who wears a big black skullcap everywhere), I don't like this. If someone attacks you for using their sidewalk, obviously the attack is criminal. If someone does the same attack and alludes to your gender, religion, race, etc. (or what he/or she perceives to be your GRR etc), it suddenly becomes a federal case with enhanced enforcement.

Gunner Sykes said...

Why do we need two tiers of justice in this country?

constant gina said...

good week in lgbt news...

BadIdeaGuy said...

As an emeritus law professor, perhaps you'd be able to address whether it makes sense to allow DOJ to promulgate the law based on their guidelines? Is this mechanism common?

Also, as a non-legal mind, when you have several paragraphs that say something to the extent of "your speech/faith/expression/yada/yada is protected UNLESS the government finds it not to be" kind of comes off as anything before UNLESS doesn't make a difference. Kind of like if I said "your blog is brilliant BUT..." you'll realize that whatever would come after the BUT is the truth about my feelings.

I'm concerned that "hate speech" will be thrown around now at political criticism and churches. I don't have any animosity toward the LGBT community, but I see some of the radical agenda there aimed more at forcing acceptance on others, particularly churches, rather than tolerance.