Gay Americans and the Federal Hate Crimes Act

I have read all kinds of rubbish over the years, but the conservative whining about the proposed Local Law Enforcement Hate Crimes Prevention Act of 2009 takes the cake. Contrary to the tripe that I have read so many times, not all crimes are hate crimes.

When a mugger pushes an old man to the ground and steals the old man's wallet, the mugger does not necessarily or even usually hate the victim -- injury to the victim is incidental to the true motive of the mugger, which is to steal money. In such cases, the mugger often does not even know the name of the victim he or she is about to assault and rob. The mugger does not act out of a frenzied hatred of old men carrying wallets; he or she merely seeks to relieve the victim of that person's money. Such behavior can be classified as showing profound disregard for the rights of the victim, but that is a far cry from hating the victim.

A tenant who fails to pay his or her rent does not hate his or her landlord -- the tenant merely seeks to remain on the premises without paying the rent. Contrast the above, hypothetical crime of a mugger pushing an old man to the ground on the one hand with the crime perpetrated against Matthew Shepard on the other hand. This young gay man was pistol-whipped by two local Laramie thugs (one of whom was a professed Mormon); the blows to his head were so severe the bones of his skull were smashed to powder.  He was driven to the outskirts of Laramie and tied, in a crucified position, to a split-rail fence (his attackers used a rope to lash him to the fence).

Aaron McKinney and Russell Henderson initially stated that they beat Shepard (who died several days after being cut down from the fence without ever regaining consciousness) because Shepard had made sexual advances towards them (as though it is acceptable to kill a person who makes unwanted sexual advances towards the individual concerned). During the trial of Aaron McKinney, McKinney's counsel advanced this "gay panic" defense, to the disgust of many Laramie residents. Both attackers were convicted.

Now -- tell me seriously that there are no qualitative differences between the above crime, which occurred in 1999, and the hypothetical crime posited earlier.

Shepard was killed because he was gay. Attempts have been made by various right-wing commentators and organizations to muddy Shepard's name and character. These attempts cannot and do not change the underlying motive or the facts. Perpetrators of hate crimes frequently engage in precisely the "overkill" behavior manifested in the attack on Shepard. The hatred that motivates such crimes is not directed only towards the individual victim -- it is directed towards all members of the class to which the victim belongs (in Shepard's case, gay Americans). When news of Shepard's attack circulated throughout the gay community, many members of that community felt threatened and vulnerable.

That is the difference between hate crimes and crimes such as muggings. Hate crimes are intended to intimidate all members of the class to which the victim belongs, whether that class consists of gay Americans, black Americans, Asian Americans, or any other group of Americans, the members of which share a real or perceived common characteristic. These crimes occur because of who the victim is, as opposed to whether or not the victim is carrying money, is threatening to expose a secret, or is a rival in love or sexual competition.

The lies told about the proposed measure are almost beyond belief. Two years ago, a similar measure was considered (but ultimately defeated).  On May 2, 2007, the "Human Rights Campaign" (HRC) -- a gay organization that lobbies Congress for the passage of measures such as the proposed addition of sexual orientation to the list of characteristics encompassed by the existing federal hate crimes statute -- released a statement cataloging the lies and filthy tricks engaged in by some so-called "pro-family" organizations.

One of the lies circulated by these groups asserts that there currently exists no federal hate crimes statute at all, and that the proposed measure would therefore be the first, and only, piece of federal legislation addressing hate crimes, and that it would only enhance penalties for those hate crimes motivated by hatred of the victim's sexual orientation. In fact, the federal hate crimes statute has existed for 40 years, and it already strengthens punishments for crimes motivated by hatred of the victim's race, color, national origin, or religion.

One of the most frequently promoted lies by the opposition is that the hate crimes law will make anti-gay bigots criminally liable for their hate speech. While the writer believes it to be fundamentally un-American and un-Christian to embrace the message of white supremacists and hate groups, the religious right has nothing to fear from the hate crimes bill, as it applies only to acts of violence. Nothing in this measure would prohibit the lawful expression of one’s deeply held religious beliefs. As ugly and inflammatory as these comments can be, people will remain free to say things such as: “Homosexuality is sinful,” “Homosexuality is an abomination” or “Homosexuals will burn in Hell.” Yet we hear constant, incessant whining about the possibility of the proposed measure being used to prosecute religious figures who voice their disapproval of gay relationships and / or of gay people. This whining conveniently overlooks the fact that any attempt to apply this measure against religious figures would fall flat as a matter of constitutional law. The US Supreme Court, in Brandenburg v. Ohio, 395 U.S. 444 (1969), made it clear that speech or advocacy cannot be criminalized "...except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Obscenity is another form of speech which does not enjoy First Amendment protection, but that is not relevant to this issue.) Thus, a priest or minister of religion could not possibly be prosecuted under the proposed legislation, unless he or she actually incites a riot. Is that really what conservatives fear? Do these conservatives and fundamentalists wish to incite their followers to riot?

The organization that calls itself the "Family Research Council" (FRC) stands front and center in promoting the lie that the addition of sexual orientation to the existing federal hate crimes statute will result in ministers of religion and priests being prosecuted for preaching that homosexuality is “sinful” or wrong. When the 2007 measure was considered, the FRC peddled a DVD that purported to show "shocking examples of how hate crime laws trample free speech, lead to arrests, and censor speech." This 40-minute DVD featured Dr. D. James Kennedy (of the notoriously homophobic organization named "Coral Ridge Ministries," which peddles the lie that homosexuality is an illness that can be "cured" through faith in Christ and “reparative therapy”); Christine Sneeringer, billed as an "ex-lesbian;" pastor Ake Green; and pastor Danny Nalliah (among other figures). Pastors Ake Green was arrested under hate crimes legislation for anti-gay “witnessing,” and Pastor Danny Nalliah was prosecuted under hate crimes legislation for anti-gay “witnessing.”

What is not mentioned on the FRC Web site relative to these prosecutions, however, is the fact that pastor Ake Green was arrested in Sweden in 2004 for anti-gay preaching under Swedish law, and pastor Danny Nalliah was prosecuted in Australia, under Australian law. Sweden included sexual orientation in its hate crimes legislation in 2004, and Green became the first person to be prosecuted under this law (as amended). The Swedish hate crimes legislation permits for the imprisonment of persons who demonstrate “disrespect” for gay people, and it was under this amended non-US legislation that Green was prosecuted. What the FRC utterly fails to mention, furthermore, is the fact that the Swedish Supreme Court (upholding the judgment of an intermediate appellate court) overturned Green’s conviction in a unanimous decision. As discussed above, preaching that homosexuality is a sin cannot be prosecuted in the US, due to the fact that the US (unlike Sweden or Australia) has a First Amendment that guarantees all persons near-absolute rights to free speech, including the right to advocate breaking the law (see Brandenburg, supra).

Then there is the talk of "special rights" being afforded gay Americans by such legislation. Why is this argument is not raised with respect to other groups protected by the proposed legislation? Only when it is proposed that sexual orientation be added to the language of the existing legislation do people cry out about "special rights" being afforded members of the gay community by such legislation. The FRC and other conservative groups do not seem to have any problems with hate-crimes legislation unless this legislation enhances penalties handed down to people convicted of committing violent hate crimes against gay Americans. Then, and only then, does the hard right claim that hate crimes legislation confers “special protections” on members of the groups included in the protective ambit of such legislative measures.

The US Supreme Court, throwing out a state constitutional amendment voted into existence by the citizens of the State of Colorado in 1992 ("Amendment 2"), had the following to say about the "special protections" supposedly sought by gay Coloradans:

"We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society" (Romer v. Evans, 517 U.S. 620 (1996)).

Stephen Bennett -- a spokesman for the anti-gay group called "Concerned Women for America" (CWA) -- used his action network to promote the anti-gay videos of John Smith, a white-supremacist filmmaker who posted numerous hateful videos on YouTube.com. Smith's hateful online video collection included such titles as “Keep America White,” “Black Intelligence” (a video purporting to prove that blacks are mentally inferior to whites) and “Hitler” (a homage to Hitler on the occasion of his birthday). YouTube.com – which hosts movies made by ordinary people who wish to publish their movies – pulled these anti-gay videos, which violated YouTube.com's terms of service. Peter LaBarbera -- a former employee of both CWA and the FRC -- picked up where YouTube.com left off circulation of these anti-gay videos, posting them on a religious right Web site in Massachusetts.

In a particularly disgusting insult to the memories of the victims of the Virginia Tech massacre, Tony Perkins (President of the FRC) and Matthew Barber (spokesman for CWA) wrote the following statements, respectively, to argue against enactment of the 2007 measure:

"Under this legislation, the crimes at Virginia Tech, which some are calling one of the deadliest rampages in U.S. history, would not be punishable to the level of these so-called ‘hate crimes.’ If the House approves H.R. 1592 and the Senate follows, a homosexual would have more federal protection under the law than the 32 victims of last week’s massacre." (statement by Perkins)

"The FBI’s latest statistics show that there were zero ‘hate crimes’ murders committed against homosexuals or those perceived to be homosexual in 2005; yet we already know of 32 so-called ‘hate crimes’ murders committed against perceived ‘rich kids’ in a single day. But under H.R. 1592, those ‘rich kids’ would shamefully be denied the same protections and justice as homosexuals. The whole ‘hate crimes’ concept really places logic and reason on its head." (statement by Barber)

Not to be outdone, the "Traditional Values Coalition" (TVC) created and disseminated a fake transcript of the House Judiciary Committee hearing on the 2007 hate crimes bill in an attempt to “prove” that the legislation would punish anti-gay thoughts. The falsified transcript did not even remotely resemble the official transcript of the proceeding (see http://tinyurl.com/yvncxp to view both the real transcript and the forged transcript).

Not content with violating the Ninth Commandment (condemning the bearing of false witness), the TVC produced a “wanted poster” in which Jesus Christ, wearing a crown of thorns, is wanted for violating the proposed hate crimes bill. The poster states that Christ is “wanted for revealing the truth about homosexuality in ‘The Bible’ and encouraging his followers not to offend God by committing such behavior.” The deep-seated, raw hatred of gay people that motivates such groups could not be more evident than is manifested by this depraved attempt to spread flat-out lies, using Christ's name in vain in the process.

Furthermore, critics of adding sexual orientation to the grounds included in the proposed legislation forget the fact that the legislation classifies on the basis of sexual orientation -- it does not protect only gay people. Just as a crime would be punishable under this legislation were it to be perpetrated by a heterosexual motivated by animus towards gay people, a crime would similarly be punishable under this legislation were it to be perpetrated by a gay person motivated by animus towards heterosexual people. Conservatives "forget" the fact that such legislation is a sword that cuts both ways. It becomes clear, when one conducts a more searching review of the proposed legislation and its impact, that conservatives are prepared to tell blatant lies in their efforts to derail the proposed legislation.

Nobody could prosecute religious figures under this legislation. Nobody could punish thoughts under this legislation.  Nobody is granted "special rights" by this legislation, which identifies a characteristic possessed by all people and then enhances penalties for acts of violence perpetrated against people based on hatred of the manner in which that characteristic is expressed.

But truth never stood in the way of cultural conservatives, who have lied and spread disinformation up and down the country.

PHILIP CHANDLER