A Petition to Congress in Defense of Religious Freedom

Claim:   A bill before Congress would make it a "hate crime" for pastors and churches to speak against homosexuality.

Status:   False.

Example:   [Collected via e-mail, June 2007]

Origins:   The above referenced Action Alert issued by the American Family Association (AFA) in June 2007 warns readers that a bill currently before Congress would "criminalize negative comments concerning homosexuality, such as calling the practice of homosexuality a sin from the pulpit, a 'hate crime' punishable by a hefty fine and time in prison." This claim, as well as the Action Alert's bulleted references to court cases, news items, and current legislation, are gross and misleading distortions of information:

• The court case referenced in the first item dealt with a woman who complained about anti-homosexual material posted on a bulletin board at her workplace (the Oakland Community and Economic Development Agency). After the material was removed, the persons who had posted it filed a lawsuit claiming that their free speech rights had
  been violated. The court ruled against the plaintiffs, noting that they "do not have a privileged First Amendment right to communicate their message to their officemates," and that the employer has an "'administrative interest' in avoiding situations that distract employees from their jobs." The lawsuit had nothing to do classifying certain words or phrases as "hate speech" and thus establishing their usage as a "crime."
• The Washington Post's front-page coverage of the announcement that Marine Gen. Peter Pace would be stepping down as chairman of the Joint Chiefs of Staff when his term expired in September did not claim that Pace was "fired because of his publicly expressed moral opposition to homosexual behavior." The Post's 9 June 2007
  article on the subject mentioned in passing, in its 18th paragraph, that some congressional staffers "said Pace's recent comments to reporters at the Chicago Tribune about the military's 'don't ask, don't tell' policy, in which he said homosexuality was immoral, would also be a distracting issue" at his confirmation hearing. (The primary reason expressed in the article for Pace's dismissal was "concern from both parties that Pace's confirmation hearing could evoke bitter debate about Iraq war policy.")

  Likewise, CNN's television coverage of the story that same day cited "the political debate about the war and the rising death rate for U.S. troops" and "progress [in Iraq that] has been too little and too slow" as the main stumbling blocks to Gen. Pace's re-confirmation, noting secondarily that other factors ("his recent statements that he believed homosexual behavior was immoral" and his writing "a letter to the judge in the 'Scooter' Libby case attesting to Libby's character") posed problems for the general "in addition to the war."

• The proposed "Local Law Enforcement Hate Crimes Prevention Act of 2007" (H.R. 1592 / S. 1105) currently before Congress would not "criminalize negative comments concerning homosexuality." The bill seeks to amend Title 18, Chapter 13 of the U.S. Code by adding a section on "Hate crime acts" that specifies criminal penalties for:

  
  

  
  Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person —

  
  

  i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

  (ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if —

  (I) death results from the offense; or

  (II) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

  
  

  
  
  
  

  The bill would not create new law;

  it would merely expand existing laws to protect anyone attacked on the basis of sex, sexual orientation, gender identity or disability. (Current laws already protect victims of violence based on the race, religion, color, or national origin of the victim.) It would also extend federal jurisdiction in such cases, which is currently limited to instances where the victim is engaged in a federally protected activity, such as voting or attending school.

  The bill addresses "willfully causing bodily injury to any person" (as well as "attempts to cause bodily injury to any person") because of "actual or perceived ... gender, sexual orientation, [or] gender identity." The bill does not "criminalize negative comments concerning homosexuality," nor would it make "calling the practice of homosexuality a sin from the pulpit a 'hate crime'." The bill has nothing to do with the issue of speech; it only prescribes criminal penalties for the willful infliction of bodily injury on others.

  As for claims that if the bill passes, it will allow pastors to be prosecuted if "someone hears a pastor condemning homosexuality and then assaults a gay person," the Chicago Tribune noted:

  
  

  
  It's a groundless fear. The Supreme Court has ruled that even speech advocating criminal conduct is protected under the 1st Amendment, unless it amounts to direct incitement of imminent violence. A preacher who says gays deserve condemnation may not be punished for merely expressing his views, however harsh they may be.
  
  
  

  In fact, the version of the bill passed by the House of Representatives on 3 May 2007 includes a clause that specifically precludes it from applying to conduct protected by the free speech and free exercise of religion provisions of the Constitution:

  
  

  
  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.
  
  
  
  

Last updated:   11 July 2007

  Sources:

    Dorell, Oren.   "Ministers Say Hate Crimes Act Could Muzzle Them."

    USA Today.   15 June 2007.

    White, Josh and Thomas E. Ricks.   "Joint Chiefs Chair Will Bow Out."

    The Washington Post.   9 June 2007   (p. A1).

    Chicago Tribune.   "Why Have Hate Crime Laws?"

    9 July 2007.

    CNN.com.   "CNN Newsroom" [transcript].

    9 June 2007.