A senator’s sleight-of-hand and “hate” crimes
- Jul 17, 2009
Senator Patrick Leahy’s (D-VT) insertion of “hate” crimes legislation into the Defense Authorization bill (S. 1390) may be Washington, D.C., politics as usual, but it didn’t escape my attention. The senator’s action prompted me to write a letter to Senate Minority Leader Mitch McConnell (R-KY) recounting my deep concern with legislation that places the courts in the “precarious position of judging thoughts.” The text of that letter is reprinted here:
We write to express our strong opposition to the Matthew Shepard Hate Crimes Prevention Act, which would add “sexual orientation” and “gender identity” as specially protected categories for victims of violent crimes. We note Senator Leahy’s attempt to amend the Defense Authorization bill (S. 1390) with this hate crimes bill. We urge vigorous opposition to the amendment and to the underlying bill if successfully amended with the Matthew Shepard Hate Crimes Prevention Act, including by filibuster if necessary.
We believe this hate crimes legislation is unnecessary and unconstitutional. Laws are already in place to prosecute individuals for every form of violent crime committed against others. Yet the hate crimes legislation would afford special protections to some individuals but deny such protections to others, thereby making the latter second-class citizens. This would turn on its head the 14th Amendment, which grants equal protection under the law.
The hate crimes legislation would also create a justice system that extends far beyond the scope of prosecuting physical acts of violence. Since the bill specifies a hate crime “is motivated by prejudice based on the actual or perceived” “sexual orientation” or “gender identity” of a victim, prosecutors and judges would assume the precarious position of judging thoughts. This could create a chilling effect on religious speech, connecting innocent expression of religious belief to acts of violence against individuals afforded special protections. The criminalization of religious speech, such as speech against the practice of homosexuality, has already been seen in other countries with similar hate crimes legislation in place.
Also troubling is the bill’s failure to clearly define the types of individuals receiving special protection. While the American Psychiatric Association lists roughly 30 sexual orientations, including pedophilia, the term “sexual orientation” is unspecified in the bill, and “gender identity” is only loosely defined.
For these reasons and more, we ask for equal protection under the law and for protection of religious speech through the defeat of this amendment and any other similar form of hate crimes legislation.
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