Matthew Shepard Act Accused of Chilling Religious Freedom of Speech
The latest email from the Institute for Humanist Studies draws attention to an August 18th article in the Chicago Sun Times on the controversy surrounding The Local Law Enforcement Hate Crimes Prevention Act (HR 1592), also called the Matthew Shepard Act, which still awaits a Senate vote.
Bishop Harry Jackson, a pastor from Beltsville, MD, and one of more than 30 other black ministers around the country who signed a full-page ad published in the July 11 issue of USA Today protesting the Matthew Shepard Act, had this to say:
“I don’t think somebody else’s lifestyle preference should be made equal to my struggle as a black man. [But] my primary argument with this bill is religious liberty.”
So how do we balance this trade between First Amendment rights and the need to protect individuals and society from hate crimes? Which is more important to Humanists? Moreover, is it fair to equate sexual (or as I prefer “affectional”) preference with race, religion, gender, or physical ability? I think so but not because the struggle of a member of the LGBT community is the same as that of a person of color, a Jewish person, a woman, or a person with a disability. Rather, to unfairly discriminate against, or in this case to attack or injure, anyone because of their membership in a group that you fear or dislike is wrong.
Let me be clear, not all clergy are against The Matthew Shepard Act. In fact some have put up a website in support of it. It is a complex and controversial issue. The U.S. Department of Justice under Janet Reno created A Policymaker’s Guide to Hate Crimes to address this issue in 1997. It’s 77 pages long and the issues have only become more complicated since then.
The Matthew Shepard Act provides funds for expanding coverage of federal hate crimes legislation and for fighting hate crimes, and specifically says it cannot usurp constitutional law–that would include the First Amendment’s guarantee of free speech. I personally think, given the precedents I’m aware of (R.A.V. v. City of St. Paul, Minn. and Wisconsin v. Mitchell explained in the above document), if the the Matthew Shepard Act is passed what we will end up with will allow for added penalties for crimes committed that include a bias rather than outlawing speech. However I’m not a lawyer. If people know of other aspects of this law that would change the above precedents I would really like to know about it.
Isn’t it time to put an end to prejudice on the books?
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One of our most basic cultural values is freedom of expression from prior government restraint. This is why every law infringing on freedom of speech is subject to strict scrutiny.
Laws against criminal threats, conspiracy to commit crimes, and perjury can be justified. A law against saying that God hates fags can not be justified.
Precisely my point although a law adding an extra penalty for someone committing the murder or inciting the murder of a gay man while saying “God hates fags so we should kill the fags” would probably be as constatutional as adding an extra penalty to an attack on a black man by a group of white men who were calling him racially offensive names while they beat him.
This type of law doesn’t single out specific crimes before they are committed but recognizes expression, is protected by the first amendment, while conduct is not protected by the Constitution. So as they say it’s all fun and games until someone loses a constitution liberty.
Lisa
Bishop Jackson has religious liberty. He can practice the rituals and hold onto the beliefs of his faith with virtually no risk that anyone will tie him with barbed wire and beat him to death. It’s false for him to skew the discussion by saying he doesn’t have what he does indeed have.
Matthew Shepard’s right to liberty, in this case the freedom to love who he loved without fearing for his life, is what was denied. The crime of his murder isn’t worse for the fact that the word “God” was used to justify it, but it certainly does display the true colors of those who are doing so. They are the enemies of liberty, as proved by their readiness to use deadly violence to punish a man who followed his own path to fulfillment.
As for Bishop Jackson’s reference to racism, I would ask him, why is the victimization of one man less important than another’s? Af-Ams who have been attacked for having dark skin are victims of terrible injustice because they were stripped of their humanity by their attackers, their value as people ignored in favor of a virulent form of ignorance and hate. So was Matthew Shepard.
It isn’t the mentioning of God that makes a crime worse but rather the obvious bias toward a specific group of people. In otherwords to attack someone based on the group they belong to, rather than for some other cause. That is why extra punishment is allowed for crimes based on hate to show that society does not approve of hate or bias as an excuse for crime.
I agree with your point about victimization. Many people have a hard time trying to compare suffering which I think is a losing game. Injustice is always important to the person who is suffering and you can’t compare any forms of victimization without getting into angry useless fights. So while I agree with you I don’t think we can win any converts on that point
I’m still working on the idea that the sentiment in the mind of the criminal (e.g. hate for this or that demographic) ought to be grounds for added punishment. It’s not that I directly reject it, but it hits me oddly to think that the heinous nature of Shepard’s killing, or (to piggyback on the racism reference above) the intimidation tactics used by the KKK against non-Caucs, are not sufficiently bad in and of themselves. In other words, maybe (and as I say, I’m still mulling this over) simple punishment of murder and threats against innocent people is the point, rather than trying to use law to shape people’s minds. Surely discouragement of irrational hatred is a good idea, but I wonder about trying to prohibit it by way of law. The history of prohibition, of anything, material or psychological, doesn’t suggest that it’s an effective tactic. I can’t think of a single time it has really worked. Anyway, I don’t mean to sharpen my point, and if hate-crime law truly discourages the next racist or homo-hater from attacking, it’s fine by me. As for winning converts to humanism in this time of resurgent fundamentalism, I try to focus on things that people find meaningful and worth sticking up for that humanism upholds, like freedom, recognition of their inherent value as people, the benefits of access to more (and more varied) knowledge, prevention of majoritarian bullying of cultural minorities, and the like. The law can be used to bolster some of these, particularly protection of cultural minorities from big-group aggression. I’m all for it.
In this case I don’t think the law is for discouragement but to show disapproval and perhaps meant as retribution. It is meant as a mitigating factor against the accused as opposed to a mitigating factor for the accused. Whether it works or not I have no idea. That’s just my understanding of why it was proposed and is used. It might help the surviving family to know that someone got x more years for harming their child or father or whoever because he was gay or black or Jewish. Or it may not. I don’t know. I don’t believe in the death penalty because I think it prolongs the sense of justice for the family, does nothing to help either the survivors or the criminal and doesn’t deter crime.
Hate crime legislation may be like this as well, but I don’t know about any studies on it. It is an interesting question. I’ll have to look into it.