Smackdown in the Sixth: Court Rejects Challenge to Hate Crimes Law

Posted by MK on Aug 7, 2012 @ 8:18 pm
The ruling affirms the dismissal of a challenge to the federal Hate Crimes Prevention Act, with an opinion that may have implications for challenges to school antibullying policies.

Posted by MK on 8/7/12

Part I

The federal appeals court for the Sixth Circuit has, in a case called Glenn v. Holder, affirmed the dismissal of a constitutional challenge to the 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA). Because the arguments raised in the challenge parallel arguments made against school antibullying laws, the court’s resounding rejection of the challenge might prove helpful to safe-schools advocates, to a limited extent at least. On the other hand, at least one statement from the court’s decision helps perpetuate a myth that can harm efforts to enact safe-schools measures.

This post looks at the court’s critical–even derisive–treatment of the plaintiffs’ constitutional arguments, and it quotes some of the court’s (highly amusing) language that belittles the plaintiffs’ extremist position.

In a follow-up post, I’ll comment on how the court’s rejection of the claims could help LGBT-equal-rights advocates in debates over safe-schools legislation. I’ll also offer some thoughts on the one statement in the court’s decision that I find decidedly unhelpful to those pushing for stronger antibullying laws.

The Hate Crimes Prevention Act

First, briefly, some background: Many civil-rights advocates believe that “hate crimes”–that is, bias-motivated crimes–are uniquely harmful and therefore require targeted remedies that go beyond the criminal punishments that would ordinarily apply to the conduct in question. Violent, bias-motivated attacks are especially pernicious, these advocates often argue, because the attacks are “more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”[1. Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993) (describing arguments in favor of enhanced penalties for bias-motivated violence, in a unanimous opinion upholding a Wisconsin hate-crimes law).] Laws targeting hate crimes can take various forms: some state statutes, for example, provide for sentencing enhancements where a defendant, acting based on some trait or characteristic of the victim (like race or sexual orientation), violates an already existing criminal law. Other statutes make bias-motivated violence an independent criminal offense. The HCPA takes the latter approach, creating a new federal crime. Under the statute, a person is subject to federal prosecution if he or she “willfully causes” a person “bodily injury” because of the person’s actual or perceived race, color, religion, national origin, sexual orientation, gender identity, religion, disability or gender. (There are some limitations and exceptions not relevant here.)

Not all opponents of hate-crimes laws are anti-gay or against other civil rights laws. Some people strongly support LGBT-inclusive antidiscrimination provisions but nevertheless think that laws like the HCPA are unnecessary, ineffective, or even counter-productive.

The plaintiffs in the Sixth Circuit[2. The United States Court of Appeals for the Sixth Circuit decides all appeals arising out of federal courts in Kentucky, Michigan, Ohio, and Tennessee.] case, however, hardly fall into the “LGBT-supportive opposition” camp; they are unabashedly anti-LGBT-equality, and their M.O. is to spew the kind of virulent antigay religious rhetoric that can tear families apart, encourage discrimination against (and other mistreatment of) LGBT people, and terrify LGBT youth.[3. A well-known anti-gay legal group, the Thomas More Law Center, served as plaintiffs' counsel.] As the Sixth Circuit opinion suggests, moreover, their lawsuit was likely just an attempt to make a political statement against the HCPA. Their legal arguments bordered on the frivolous, and the court rightly tossed the suit.

“So why are Plaintiffs here?”

           The court’s language is entertaining enough (for a court decision, at least), and the plaintiffs’ worldview is scary and extreme enough, that I’ll quote the decision at length rather than summarize it–something I promise not to do too often! The court describes the plaintiffs’ stance as follows:

Plaintiffs . . . say that homosexuality is “forbidden by God.” They claim they “have a [religious] obligation to state clearly the immoral nature of homosexuality” that requires them to “publicly denounce homosexuality, homosexual activism, and the homosexual agenda as being contrary to God’s law and His divinely inspired Word.”

. . . .

[Plaintiffs] say the Act [i.e., the HCPA] will allow government officials to deem certain (i.e., Plaintiffs’) ideas, beliefs, and opinions as criminal and to undertake “inherently divisive” prosecutions. According to Plaintiffs, the Act’s criminal provisions will deter, inhibit, and chill their speech and activities and will subject them to “increased government scrutiny, questioning, investigation, surveillance, and intimidation on account of their strong, public opposition to homosexual activism, the homosexual lifestyle, and the homosexual agenda.” Plaintiffs—who, by the way, do not allege that they have been subjected to any government action stemming from the Hate Crimes Act—say that “[t]he enforcement history of similar ‘hate crimes’ legislation, the public statements of homosexual activists, and the influence of homosexual activists within the federal government demonstrate that Plaintiffs’ fears of adverse enforcement action under the Act on account of their deeply held religious beliefs are credible.”

The court describes the lawsuit as “unnecessary,” saying it is nothing more than “a political statement against the Hate Crimes Act.” The judges also mock the plaintiffs’ interpretation of the HCPA, commenting in a footnote that

Plaintiffs have a (sincere, apparently) belief that the Hate Crimes Act “is all about elevating certain persons (homosexuals) to a protected class under federal law based on nothing more than their choice to have sex with persons of the same gender, while marginalizing strong religious opposition to this immoral choice.”

The court then forcefully, though indirectly, rejects plaintiffs’ arguments. I say “indirectly” because the court technically decided the case on a procedural ground, holding that the plaintiffs lacked “standing.” That is, the court found that the plaintiffs did not even have the procedural right to challenge the HCPA because they had not been injured in any way by the law, and there was no reasonable possibility that they would be injured. For example, there was no risk of prosecution, as the plaintiffs alleged no intent to commit violent attacks. (The basic rule here is that you can’t challenge a law in federal court if the law doesn’t cause you any real harm.) Like many rulings on standing, however, the court’s ruling, while technically procedural, also contains a heavy dose of language interpreting the law’s substantive scope. So if you have trouble distinguishing “procedural” from “substantive” here, you are not alone, and you shouldn’t sweat it. The two types of issues blend together.

The court explains:

Plaintiffs have not established standing because they have not alleged any actual intent to “willfully cause[] bodily injury,” the conduct proscribed by the Act. To the contrary, Plaintiffs explicitly denounce “[a]ll crimes of violence perpetrated against innocent individuals,” . . . . Plaintiffs say they want no more than to “publicly denounce homosexuality” and “spread God’s Word” . . . .

      The Act does not prohibit Plaintiffs’ proposed course of speech. . . .

     . . . Plaintiffs can’t quite pinpoint what it is they want to say that could subject them to prosecution under the Hate Crimes Act. They try, for example, when they hypothesize that they might be subject to enforcement actions for quoting Biblical references to homosexuality, but even there only one such quotation contains any suggestion of “bodily injury.” That’s Leviticus 20:13—“If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.” Whatever meaning Plaintiffs attribute to this passage, they have not alleged any intention to do more than merely quote it. About that, the Hate Crimes Act has nothing to say. . . . .

. . . .

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? Plaintiffs answer that they fear wrongful prosecution and conviction under the Act. Not only is that fear misplaced, it’s inadequate to [give them standing.] . . .

. . . . Plaintiffs cite no authority for the proposition that the possibility of an erroneous conviction makes a criminal statute unconstitutional. Obviously, it does not. . . .

. . . . [Plaintiffs have also] presented no actual facts to support an assertion that the government has taken or intends to take any investigatory actions under the Act against those merely engaging in protected speech. . . .

. . . . [T]hey do not have standing to challenge the Act.

Judges appointed by three different presidents–Presidents Clinton, Bush II, and Obama–signed on to the opinion.

Coming soon

In a follow-up post, I’ll comment on how the court’s decision may help or hurt advocates for antibullying policies in schools.

MK

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