Why
a Sexual Orientation and Gender Identity “Hate Crimes” Law Is Bad for You
Part 2: The
irrelevant and inaccurate claim that this bill will not abridge your
freedom of speech
by Robert
A. J. Gagnon, Ph.D.
June 17, 2009
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print a clean copy with proper formatting and pagination go to the pdf
version here.
Proponents
of the current “hate crimes” bill before the U.S. Senate argue that it is
a lie that this bill will abridge in any way free speech protections for
those who publicly express opposition to homosexual practice without
causing, or attempting to cause, bodily harm. This claim is both
irrelevant and inaccurate.
The first step of getting
“sexual orientation” and “gender identity” in federal law
It is
irrelevant because, as noted in Part 1, this bill does most of its damage
in creating, for the first time in federal law, the special
legal-protective categories of “sexual orientation” and “gender identity.”
The first hurdle is the biggest: getting the categories of “sexual
orientation” and “gender identity” on the books. A “hate crimes” bill
functions as—no double entendre intended—the Trojan horse of an aggressive
gay/transgender lobby, offering to the public the “sexual orientation” and
“gender identity” law least likely to meet with massive public resistance.
Once the
Trojan Horse is within the city walls, the rest of the task is relatively
easy. If “sexual orientation” and “gender identity” are special civil
rights categories in federal law, then many other “sexual orientation” and
“gender identity” laws must be passed if society is going to turn back the
“homophobic hate” and “discrimination” that makes bodily crimes against
homosexual and transgendered persons possible in the first place.
President Obama and the Democratic-controlled Congress have already
indicated their eagerness to advance this agenda (go
here,
here,
here, and
here).
Removing the explicit
free-speech protection in the bill
The claim
that this bill will not lead to an abridgement of free speech is not only
irrelevant but also inaccurate. It is inaccurate, first, because the bill
itself does not provide much in the way of protection of free speech
rights. When it was first introduced into the House the bill contained
this provision:
Nothing in this Act, or
the amendments made by this Act, shall be construed to prohibit any
expressive conduct protected from legal prohibition by, or any activities
protected by the free speech or free exercise clauses of, the First
Amendment to the Constitution. (bold added)
Democrats in
committee removed the material in boldface so that what was voted on by
the full House no longer contained the explicit mention of free speech and
free exercise. The remaining phrase “expressive conduct protected …by the
Constitution” begs the question about what “expressive conduct” is
protected. No piece of legislation could abridge the Constitution anyway
so the phrase is useless. The issue is what constitutes abridgement and
that is not spelled out in this bill.
U.S. Code stipulating that
inducement is as liable as commission
Second, it
is inaccurate to claim that free speech will not be abridged inasmuch as
other existing legislation requires an extension beyond actual physical
violence.
United States Code Title 18, Section 2, stipulates that “whoever
commits an offense against the United States or aids, abets, counsels,
commands, induces
or procures its commission, is punishable as a principal.”
Statements that “abet,” “counsel,” or “induce the commission” of bodily
injury are thus not protected by the Constitution.
The omission
of “any activities protected by the free speech or free exercise clauses”
makes it that much easier to prosecute strong statements against
homosexual practice as abetting or counseling violence or as inducing its
commission. There is nothing in this bill that explicitly prevents any
homosexualist-activist judge, of which there are many, from ruling that
calling homosexual acts a grave “abomination” by appeal to Levitical
prohibitions constitutes an inducement to violence.
The existence of state and
local “hate crimes” law that include mere disturbance
Third, this
“hate crimes” bill puts free speech in jeopardy because some state and
local “hate crime” laws already make simple assault or intimidation
prosecutable offenses.
For example,
the
Illinois Hate Crime Law permits prosecution for mere assault (i.e., a
threat or action that puts a person in apprehension of bodily harm
prior to any actual harm), property trespass, “disorderly conduct,” or
“harassment by telephone” or “electronic communications.” “Disorderly
conduct” is defined in
Illinois law as a person who “does any act in such unreasonable manner
as to alarm or disturb another and to provoke a breach of the
peace” (emphasis added).
In 2007 two
16-year old girls from Crystal Lake South High School (Ill.) were arrested
on felony hate crime charges for distributing about 40 fliers on cars in
the student parking lot of their high school. The fliers contained an
anti-homosex slur (the media have not reported what precisely the slur
was) and a photo of two boys kissing, one of whom was identified as a
classmate. The fliers contained no threats of violence. One of the girls
was apparently getting back at a boy with whom she had once been best
friend.
Assistant state’s attorney for McHenry County,
Thomas Carroll, commented: “You can be charged with a hate crime if you
make a statement or take an action that inflicts injury or incites a
breach of the peace based on a person's race, creed, gender, or perceived
sexual orientation.” Another assistant state’s attorney, Robert Windon,
said: “We do not feel this type of behavior is what the First Amendment
protects.” State’s attorney Lou Bianchi insisted: “This is a classic case
of the kind of conduct that the state legislature was directing the law
against. This is what the legislators wanted to stop, this kind of
activity.”
The girls
spent 18 days in jail (a juvenile detention center) and appeared in court
for their hearing with shackles on their ankles. They were ordered by the
judge to remain in home detention on electronic monitoring until the court
sentenced them some months later. Relieved that they would be allowed to
return home for the time being, the girls sobbed uncontrollably in court.
Prosecutors eventually dropped the felony hate-crime charge in exchange
for a plea bargain, in which the girls pleaded guilty to lesser
misdemeanor charges of disorderly conduct and resisting arrest (the girls
fled the scene when a police officer arrived; they did not strike an
officer).
The girls
were sentenced to one year of probation, ordered to write letters of
apology for distributing anti-gay fliers to the boy and the arresting
officer, required to do 40 hours of community service, and given a
two-week suspended sentence in the McHenry County Jail (to be implemented
if the girls violated probation). The girls told the court that the whole
matter was a joke that they took too far. State Attorney Louis Bianchi
told the press that he still felt the hate crime charge was justified,
while acknowledging that the plea bargain was fair for juveniles.
Conclusion
Claims that
the homosexual and transsexual “hate crimes” bill soon to be voted on by
the U.S. Senate will not lead to an abridgement of free speech rights and
other liberties are both irrelevant and inaccurate.
They are
irrelevant because the primary purpose of this bill is not to reduce
“hate crimes” against homosexual and transgendered persons (laws against
violent acts are already in place) but rather to establish “sexual
orientation” and “gender identity” as specially protected classifications
in federal law. This establishment will make possible—indeed,
inevitable—an avalanche of other “sexual orientation” and “gender
identity” laws that in turn make “hateful bigots” of anyone who opposes
homosexual and transsexual behavior.
They are
inaccurate because (1) the bill has already had stripped from it
explicit free-speech protection; (2) the U.S. legal code already
stipulates that verbal “inducement” of a crime makes the inducer
“punishable as a principal”; and (3) the federal “hate crimes” law will
work in tandem with state and local “hate crime” laws, some of which
already make prosecutable any “alarming” or “disturbing” of another.
In Part 3 we
will look at other instances where “sexual orientation” laws have led to
the curtailment of civil liberties and explain why religious exemption
clauses are worthless.
Robert A. J. Gagnon, Ph.D. is associate
professor of New Testament at Pittsburgh Theological Seminary, author of
The Bible and Homosexual Practice:
Texts and Hermeneutics (Abingdon Press) and co-author of
Homosexuality and the Bible: Two Views (Fortress Press).