As the Senate moves forward this week on the Hate Crimes Amendment to the Defense Appropriations bill, politicians of both political parties pretend that such a "thought crimes" law will not infringe on Christian free speech.
UPDATE 10/9/09: Hate Crimes passing Congress via defense bill; Obama will sign
UPDATE 7/23/09: Defense Bill with Hate-Crimes Amendment passes Senate
UPDATE 7/20/09: Hate Crimes Amendment passes Senate
-- From "Does the Hate Crimes Bill Threaten Religious Liberties?" by Dan Gilgoff, God & Country, U.S. News & World Report 7/17/09
After more than a decade-long effort by gay rights advocates, the Senate [Thursday] night adopted a measure to expand the definition of federal hate crimes to include sexual orientation. It was attached as an amendment to the Department of Defense authorization bill, which is expected to pass [this] week.
Conservative Christian groups, who've led the charge against expanding the federal hate crimes law since the mid-1990s, are stepping up warnings that the bill threatens religious liberties, including the freedom of clergy to condemn homosexuality. "What you say from the pulpit could literally become illegal," the Family Research Council wrote in a recent letter to pastors. The conservative Alliance Defense Fund has received more calls and E-mails on what the hate crimes bill means for pastors than on any other issue in recent months.
As religious conservatives mount a last-ditch effort to derail the bill, however, legal experts say the legislation narrowly focuses on violent acts and that pastors' speech remains protected by the First Amendment. And some religious activists acknowledge that they're less concerned about the immediate effects of expanding hate crimes protections than about the broader message it sends. "This is the first time you would have written into law a government disapproval of a religious belief held by the majority of Americans—that homosexuality is sinful," says Erik Stanley, senior legal counsel for the Alliance Defense Fund. "It's more of a slippery slope argument than about the law itself."
. . . religious conservatives say that all crimes are motivated by hate and that gay victims shouldn't be accorded special status. Religious liberties are a much bigger concern. "When you have pastors being called to testify about what they taught or preached to a person convicted of a hate crime, that's going to send a shock wave through the religious community," says Stanley. "It will lead to a chill on speech and free exercise of religion as it relates to homosexual behavior."
Legal experts note that under the hate crimes bill, a person's religious beliefs about homosexuality become relevant only once he or she is accused of a violent crime against someone from the LGBT community. The bill prohibits a defendant's religious expressions and associations from being introduced as substantive evidence at trial, though the information can be used to help determine whether the defendant was motivated by bias. "Your penalty is being enhanced because of your religious beliefs," says Prof. Douglas Laycock of the University of Michigan Law School. "But you're being prosecuted for the crime."
Proponents of an expanded hate crimes law say religious beliefs should be subject to scrutiny if they lead to violence. "Even the strongest proponents of religious freedom do not claim that religious liberty means the right to beat people up," says Prof. Andrew Koppelman of the Northwestern University School of Law.
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From "Senate includes homosexuals in hate crimes protection" by Tom Strode, Baptist Press Washington bureau chief 7/17/09
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) and others oppose such efforts to expand hate crimes protection based not only on their inclusion of categories defined by sexual behavior or identity but also concerns about the potential impact on religious freedom.
They fear the measure, combined with existing law, could expose to prosecution Christians and others who proclaim the Bible's teaching that homosexual behavior and other sexual relations outside marriage are sinful. For example, if a person commits a violent act based on a victim's "sexual orientation" after hearing biblical teaching on the sinfulness of homosexual behavior, the preacher or teacher could be open to a charge of inducing the person to commit the crime, some foes say.
The Senate approved in a 78-13 roll call before the cloture vote an amendment by Sen. Sam Brownback, R.-Kan., intended to protect the free exercise of religion and other First Amendment rights. Brownback's amendment says such freedoms are not to be infringed on under the hate crimes measure as long as their use is not intended to plan, prepare for or incite physical violence.
"The Brownback amendment offers some needed protections for people of faith who express their faith convictions about homosexuality and certain other aberrant sexual behaviors," said Barrett Duke, the ERLC's vice president for public policy and research. "The amendment protects the pastor as long as his speech or other action was not 'intended' to lead to an act of violence. However, it does not protect a pastor from government scrutiny if a member of his congregation engages in an act of violence against someone in one of these protected groups after he has heard a negative statement from the pastor about the group. So, anyone who speaks against homosexuality or other aberrant sexual behaviors may be presumed guilty of inciting violence and be forced to prove his innocence.
"In addition, the Brownback amendment doesn't resolve other inherent problems in the bill," Duke said. "The bill still elevates homosexuality and other aberrant sexual behaviors to a specially protected class, and it still creates an opportunity for the prosecution of thought. Consequently, while we appreciate the protection that Senator Brownback gained for people of faith, the hate crimes bill is still inappropriate legislation and should be defeated."
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