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.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.
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."