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THE IMPACT OF HATE CRIMES LAWS UPON
RELIGIOUS ORGANIZATIONS AND CLERGY
Copyright © 2001-2007
THE IMPACT OF HATE CRIMES LAWS UPON
RELIGIOUS ORGANIZATIONS AND CLERGY
(An Excerpt of Document)
B. Conspiracy Prosecutions For Religious Organizations And Clergy
If Hate Crimes legislation is adopted, the immediate impact could prove disastrous for
religious ministers and organizations who advocate peacefully against the homosexual lifestyle.
Currently, every State has conspiracy laws that prohibit conspiracy to commit crimes. It is
conceivable that preaching or teaching against homosexual conduct could be prosecuted as
conspiracy to commit a hate crime. For instance, a minister could preach a sermon that urges those
listening to “actively oppose the promotion or acceptance of the homosexual lifestyle in their
community.” An individual who hears this message and applies it in a way prohibited by a Hate
Crimes Bill could be prosecuted under the law and the minister could also be prosecuted for
conspiracy.
One frightening example is the so-called “Philadelphia 11” case. Eleven Christians were
arrested in Philadelphia for signing and preaching in a public park at a homosexual street festival.
Five of them were held and charged with crimes that were based upon Pennsylvania’s hate crimes
law and could have totaled a possible 47 years in prison. The charges hung over these individuals
for months until a judge finally dismissed them. Hate Crimes laws can and will be used to silence
those who are peacefully opposed to the homosexual lifestyle.
For instance, many gay activists accused Christian conservatives of causing the death of
Matthew Shepard. On the Today Show on October 12, 1998, shortly after the murder of Matthew
Shepard, reporter Katie Couric stated:
Some gay-rights activists have said that some conservative Christian political
organizations, like the Christian Coalition, the Family Research Council and Focus
on the Family are contributing to this anti-homosexual atmosphere by having an ad
campaign saying, “If you’re a homosexual, you can change your orientation.” That
prompts people to say, “If I meet someone who’s homosexual, I’m going to take
action and try and convince them or try to harm them.” Do you believe that such
groups are contributing to this climate?11
Wyoming Governor Jim Geringer, who was asked the question, stated in reply that he would not
“trade one type of stereotype or hate for another” and that listeners shouldn’t “categorize people
unfairly.” Id.
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Matt Foreman, executive director of the National Gay and Lesbian Task Force stated in a
press release that he blamed conservative Christians for what he termed was a “spike” in hate crimes
against homosexuals in 2003 and 2004. The press release stated:
The leaders of America’s anti-gay industry are directly responsible for the continuing
surge in hate violence against lesbian, gay, bisexual and transgender (LGBT) people.
... The right went into demonic, anti-gay hyperdrive following the Supreme Court's
Lawrence v. Texas decision in July of 2003. Since then, church pews have been
awash in ugly, anti-gay rhetoric and fear-mongering. ... The literal blood of thousands
of gay people physically wounded by hatred during 2004 is on the hands of Jerry
Falwell, James Dobson, Tony Perkins and so many others who spew hate for partisan
gain and personal enrichment.12
As a further example by a governmental body in this country, the City and County of San
Francisco sent a letter of condemnation to several conservative Christian organizations denouncing
their role in the death of Matthew Shepard. The letter states:
- I am writing at the direction of the Board of Supervisors concerning hate crimes
which was discussed at their meeting of October 13, 1998. Supervisor Leslie
Katz denounces your hateful rhetoric against gays, lesbians and transgendered
people. What happened to Matthew Shepard is in part due to the message being
espoused by your groups that gays and lesbians are not worthy of the most basic
equal rights and treatments. It is not an exaggeration to say that there is a direct
correlation between these acts of discrimination, such as when gays and lesbians
are called sinful and when major religious organizations say they can change if
they tried, and the horrible crimes committed against gays and lesbians.13
Here we have a governmental body stating there is a direct correlation between the speech of a
conservative Christian organization and hate crimes committed against homosexuals. This surely
could form the basis for a prosecution for conspiracy. The city and county of San Francisco followed
up their letter with a resolution condemning the Christian organizations for introducing an ad that
advocated homosexuals could change and linked those ads directly with hate crimes against
homosexuals.14 The resolution states:
- WHEREAS, A coalition of religious political conservative organizations have
introduced a nation-wide television advertisement campaign to encourage gays and
lesbians to change their sexual orientation; and,
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- 12 See "Task Force Calls Rise in Anti-Gay Crime a Product of America’s Anti-Gay Industry,"
Statement from Matt Foreman, Executive Director, National Gay and Lesbian Task Force, April 26,
2005, http://www.thetaskforce.org/media/release.cfm?releaseID=815. - 13 See Letter from Gloria L. Young to various organizations (available upon request).
- 14 See Resolution No. 873-98, City and County of San Francisco, 10/13/98 (available upon request).
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- WHEREAS, This coalition includes the Family Research Council, the Concerned
Women for America, and the Center for Reclaiming America; and, - WHEREAS, The aforementioned organizations promote an agenda which denies
basic equal rights for gays and lesbians and routinely state their opposition to
toleration of gay and lesbian citizens; and, - WHEREAS, The radical religious political conservative coalition previously
introduced a printed advertisement campaign which a prominent San Francisco
newspaper chose to accept and publish; and, - WHEREAS, The vast majority of medical, psychological, and sociological evidence
supports the conclusion that sexual orientation can not be changed; and, - WHEREAS, Advertising campaigns which insinuate sexual orientation can be
changed by conversion therapy or other means are erroneous and full of lies; and, - WHEREAS, Advertising campaigns which insinuate a gay or lesbian orientation is
immoral and undesirable create an atmosphere which validates oppression of gays
and lesbians and encourages maltreatment of gays and lesbians; and, - WHEREAS, There is a marked increase in anti-gay violence which coincides with
defamatory and erroneous campaigns against gays and lesbians; and, - WHEREAS, An unfortunate, extreme result of these anti-gay campaigns is violence
and even death; now, therefore, be it
RESOLVED, That the Board of Supervisors of the City and County of San Francisco
urges local television stations not to broadcast advertising campaigns aimed at
“converting” homosexuals.
It is not far-fetched or unreasonable to assume that the law will be taken to the greatest extent
possible. Those organizations and even governmental entities who believe that religious speech
advocating changes in the gay lifestyle is directly linked with hate crimes against homosexuals will
take whatever opportunity they can to silence that religious speech, even if that includes a
prosecution for conspiracy to commit a hate crime.
The possibility for a conspiracy prosecution is even more possible in states with expansive
definitions of conspiracy that only require agreement to pursue an objective that may be lawful (i.e.
opposition to the homosexual lifestyle) in an unlawful manner and that the crime committed was a
natural and foreseeable consequence of the agreement. It is conceivable that a minister who preaches
a strong sermon against the homosexual lifestyle and urges his or her congregation to do whatever
necessary to oppose the lifestyle could be prosecuted for conspiracy if a member of the congregation
who hears the sermon misinterprets it and commits an offense covered by a Hate Crimes law. This
could occur even though the minister never intended or even dreamed that violence would be used
as a result of his or her sermon on the issue but had merely chose his or her words carelessly or in
a way that could have been misinterpreted. As long as a jury could find that there was an agreement
to oppose the homosexual lifestyle (a lawful objective) and that the crime (unlawful means of
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pursuing the objective) was a natural and foreseeable consequence of the sermon, the minister could
be convicted.
For sure, the situation described above should be distinguished from the minister who
actively advocates and urges his or her congregation to commit bodily harm against homosexuals.
Such an advocate would certainly and rightfully be held accountable. However, a minister who
perhaps carelessly chooses his words but has the purest of motives could be prosecuted. Such an
outcome should not be left to the discretion of a prosecutor or judge who may have a personal
agenda to promote or to a jury inflamed by public opinion.
Surely the possibility of prosecution, even remote, could have a chilling effect on lawful free
speech by ministers or religious organizations. Organizations and ministers would be forced, in an
abundance of caution, to so water down their message, or to refuse to give it altogether to prevent
an individual from misapplying or misconstruing their call to action. This chilling effect on lawful
free speech should be avoided at all costs. While it is difficult to peer into the future and predict
whether this type of situation will happen for a certainty, it is abundantly clear that the possibility
exists for prosecution of ministers or religious organizations for their lawful speech based upon their
sincere religious opposition to homosexuality.
The chilling effect would be immediate on ministers and religious organizations who would
feel the necessity to tone down or to discontinue their opposition to homosexuality. This chilling
effect is sufficient justification to prevent the Hate Crimes Bill from proceeding to a final vote in the
Legislature.
C. Increased Federal Involvement In Prosecution Of Hate Crimes
Hate Crimes legislation authorizes increased federal involvement in investigation and
prosecution of hate crimes. Hate Crimes is typically given an expansive definition. Some definitions
are adopted from 28 U.S.C. § 994 which defines hate crimes as, “[A] crime in which the defendant
intentionally selects a victim, or in the case of a property crime, the property that is the object of the
crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender,
disability, or sexual orientation of any person.” This expansive definition covers any crime that is
based on the actual or perceived sexual orientation of the victim. This definition, therefore, does not
limit federal involvement in investigation and prosecution of hate crimes to just those crimes that
involve bodily injury or death. Therefore, any crime that is because of the sexual orientation or the
perceived sexual orientation15 of the victim could be subject to federal involvement. Under Hate
Crimes legislation, the Attorney General is left free to provide any assistance in the prosecution of
these crimes. This means that federal prosecutorial staff may be used in the prosecution, federal
investigative staff may be used, as well as any assistance deemed necessary by the Attorney General.
Essentially, the Hate Crimes Bill provides for a “pass through” prosecution by the federal
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- 15 The language in the Hate Crimes Bill that punishes crimes based on the perceived sexual
orientation of the victim is especially troubling. A prosecution on the basis that an individual
perceived something necessarily includes an inquiry into their thoughts and opens up inquiry into
the statements the individual made, the literature the individual read, and the influences the
individual was subjected to. This could lead to increased vilification and possibly even prosecution
of religious organizations and clergy who are lawfully exercising their right to free speech.
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P.S.The constraints of space and time don't allow for displaying the 17 page memo;
To see the whole memo in PDF format visit link below:
Source: http://lc.org/media/9980/attachments/hatecrimes.pdf
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