Will New Hate Crimes Law Threaten Religious Liberties?

Religious conservatives say the measure threatens religious liberties, but most legal experts disagree.

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By Dan Gilgoff, God & Country

Religious conservatives are decrying yesterday's Senate expansion of the federal hate crimes law to include gays. The measure, attached to a must-pass military spending bill, is headed for a promised signature from President Obama.

Religious conservatives say the bill threatens their First Amendment right to publicly condemn homosexuality. I laid out the controversy in a recent God & Country column:

[C]onservative 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."

According to the FBI, 16 percent of the roughly 9,000 hate crimes committed in 2007, the most recent year for which statistics are available, targeted the LGBT community. The two more common types of bias-motivated crimes, those based on race and religion, are already covered by the federal hate crimes law, adopted in 1968.

Expanding the law would authorize the Justice Department to investigate and prosecute violent crimes whose victims were allegedly chosen because of their sexual orientation in state or local jurisdictions unable or unwilling to do so. The bill moving through Congress also adds women and the disabled to the list of those covered by the law. Advocates say hate crimes laws are necessary because bias-motivated crimes terrorize entire communities.

But 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.

Read the full piece here.