August 9, 2012
Such a suit was just dismissed by the U.S. Court of Appeals for the Sixth Circuit, and the judge authoring the opinion made no secret of his views.
The case began as a challenge to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act by the Thomas More Law Center.
The Hate Crimes Act, enacted in October of 2009 as part of the 2010 National Defense Authorization Act, provides criminal penalties for “[w]hoever … willfully causes bodily injury to any person … because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”
In other words, it prescribes increased penalties for violent hate crimes, such as the recent Sikh temple massacre in Wisconsin.
The Act also includes six “Rules of Construction,” which aren’t specifically found in U.S. Code, but, since they were contained in the original bill passed by Congress, carry the force of law nonetheless.
These rules prohibit the Act being construed to prosecute those who simply engage in “hate speech,” but do not engage in violence.
Even so, the law’s challengers claim that the Act is unconstitutional because, under the act, they say that “the expression and practice of their anti-homosexual religious beliefs will lead to federal investigation and prosecution under the Act, in violation of their First Amendment rights.”
The plaintiffs state that their claims of the Act’s enforcement against them are credible not because they’ve been subject to any government action stemming from the Act, but because of “the influence of homosexual activists within the federal government.”
Hot Doc: Glenn v. Holder
Furthermore, the challengers never alleged any intention to violate the act, and thus there was no fear of enforcement against them in that respect.
In fact, they explicitly state that “[p]ersons who commit violent criminal acts, regardless of the ‘bias’ or motive for the crime, are rightfully subject to severe criminal penalties…”
The court called the plaintiffs out on this issue:
“So why are Plaintiffs here? If the Hate Crimes Act prohibits only willfully causing bodily injury and Plaintiffs are not planning to willfully injure anybody, then what is their complaint?”
This one sentence tidily sums up one reason why the challengers’ suit fails for lack of standing: they have not alleged that they intend to violate it.
The other reason was alluded to earlier: the plaintiffs never “offered sufficient evidence to objectively justify a reasonable fear of enforcement” of the Act against them.
To be sure, they offered their own “justification” for their fear of enforcement: the earlier mentioned fear of the “homosexual activists within the federal government.”
Additionally, in their appellate brief, the challengers framed the Act as “a great tool for the Justice Department to promote its pro-gay agenda” which will be used to silence religious leaders with investigations and threats of enforcement under the Act.
However, the challengers alleged no actual threat of enforcement.
As such, the court found the plaintiffs’ fears (as the concurrence puts it) “wholly groundless,” and dismissed the action in its entirety.
Did the plaintiffs truly believe that they face prosecution under the Hate Crimes Act for simply publicly denouncing homosexuality?
We can’t know for sure.
However, the court doesn’t think so, and goes so far as to reveal what it believes is the reason for the challenge:
“Plaintiffs’ underlying complaint is with the government’s heightened protection of homosexuals from criminal violence – this lawsuit is really a political statement against the Hate Crimes Act.”
Assuming that the court is correct, let’s hope that the next “political statement” about the Act isn’t something that actually does require enforcement of it.