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In October of 2009 President Obama signed into law the Matthew Shepard and James Byrd Hate Crimes Act as part of the National Defense Authorization Act. This legislation created a firestorm of controversy, with exaggerated and unfounded claims being made on all sides. According to some, pastors who preach against homosexuality from the pulpit, or even quote passages of the Bible pertaining to homosexuality, will be guilty of a hate crime. Is this fear warranted?

Background

In 1969, Congress enacted a "hate crime" law making it a crime to use force or threat of force to "willfully injure, intimidate or interfere with" any person "because of his race, color, religion or national origin" in enjoying any "benefit, service, privilege, program, facility or activity" administered by the federal or any state government.

Over the years several attempts were made to add sexual orientation to the definition of a "hate crime" under this legislation, and to criminalize all hate crimes rather than just those directed at persons participating in a government program. All of these attempts failed until 2009, when the Matthew Shepard and James Byrd Hate Crimes Act was passed by both houses of Congress and signed into law by President Obama.

Text of the new law

The Matthew Shepard and James Byrd Hate Crimes Act (the "Act") makes it a federal crime to "willfully cause bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempt 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." Persons who violate this law may be imprisoned for up to 10 years, and may be assessed a monetary fine. Stricter penalties, including the death penalty, apply if death results from an offense.

The Act defines "bodily injury" to mean a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary. However, the Act adds that bodily injury "does not include solely emotional or psychological harm to the victim."

The Act contains the following four explicit protections for religious speech:

First, it states that it shall not be construed or applied in a manner that substantially burdens any exercise of religion, regardless of whether compelled by, or central to, a system of religious belief, so long as an exercise of religion is not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another.

Second, it states that it "shall not be construed to allow prosecution based solely upon an individual's expression of … religious … or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs."

Third, it states that it "shall not be construed to diminish any rights under the First Amendment to the Constitution of the United States."

Fourth, it states that it "shall not be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment to the Constitution of the United States and peaceful picketing or demonstration."

Constitutionality

Will the Matthew Shepard and James Byrd Hate Crimes Act be struck down by the courts as unconstitutional? Possibly, but not likely. There are two possible challenges:

• Violation of the First Amendment. The several protections the Act contains for religious speech make it unlikely that a court will find that it violates the First Amendment.
• Commerce clause. Congress can only enact legislation pursuant to authority delegated to it in the United States Constitution. The Matthew Shepard and James Byrd Hate Crimes Act, like many federal laws, is based on congressional authority to regulate interstate commerce. The Act clarifies that it only applies to conduct that "affects interstate commerce," which has the effect of bolstering its constitutionality.

In 1993, the United States Supreme Court upheld a Wisconsin hate crimes law that allowed judges to increase criminal penalties for certain crimes if a perpetrator selected a victim on the basis of race, religion, color, disability, sexual orientation, national origin, or ancestry. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The Supreme Court, in upholding the Wisconsin law, stressed that the law did not punish motive or thought, but rather increased the criminal penalty for criminal conduct. According to this ruling a pastor could not be prosecuted for preaching against homosexuality, since this would involve punishment of thought rather than conduct. This is the very distinction that is embedded in the Matthew Shepard and James Byrd Hate Crimes Act.

Conclusions

The Matthew Shepard and James Byrd Hate Crimes Act makes it a crime to:

(1) Willfully cause bodily injury to another person because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of the person; or

(2) Through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempt to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of that person.

Bodily injury is defined to exclude emotional or psychological harm.

The Act includes several explicit protections for religious speech. It would be difficult to imagine what more the Act could say to make clear that ministers who address homosexuality from the pulpit, even critically, are not committing a hate crime.

Also, note that the Act's protections go well beyond sexual orientation, and include religion. This means that persons who cause bodily injury to others because of their religious beliefs will be subject to the very same sanctions as those who injure persons because of their sexual orientation.

Example. A pastor quotes verses from the Bible during a sermon that condemn homosexuality. The pastor has not violated the Matthew Shepard and James Byrd Hate Crimes Act for the following reasons: (1) The pastor did not cause bodily injury to any person due to that person's sexual orientation. (2) The Act states that it shall not be construed or applied in a manner that substantially burdens any exercise of religion, regardless of whether compelled by, or central to, a system of religious belief, so long as an exercise of religion is not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another. (3) The Act states that it "shall not be construed to allow prosecution based solely upon an individual's expression of … religious … or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs." (3) The Act states that it "shall not be construed to diminish any rights under the First Amendment to the Constitution of the United States. (4) The Act states that it "shall not be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment to the Constitution of the United States and peaceful picketing or demonstration." (5) Finding a pastor guilty of a crime based on thought or bias without any underlying conduct would violate the First Amendment according to the United States Supreme Court's ruling in Wisconsin v. Mitchell, 508 U.S. 476 (1993).

Example. Same facts as the previous example except that persons in the congregation claim that they suffered emotional distress due to the content of the sermon. The pastor has not violated the Matthew Shepard and James Byrd Hate Crimes Act since he did not cause bodily injury to anyone due to their sexual orientation. The Act only punishes the infliction of bodily injury on others due to several grounds, including sexual orientation, and it specifically excludes emotional or psychological harm from the definition of bodily injury.

Example. A pastor physically assaults a person on church premises following a worship service due to the person's perceived sexual orientation. This conduct constitutes a hate crime in violation of the Act.

Example. A pastor refuses to perform a marriage ceremony for a same-sex couple. The pastor has not violated the Act.

Example. A Christian is severely beaten because of his religious beliefs. This is a hate crime that violates the Act.

Example. A pastor encourages and incites the congregation during a sermon to physically assault a named person because of his sexual orientation. This conduct may constitute a hate crime in violation of the Act.

Adapted from an article that first appeared in Church Law & Tax Report, 2010.http://www.ChurchLawAndTax.com/cltrinfo.php

Richard Hammar is an attorney, CPA, and best-selling author specializing in legal and tax issues for churches and clergy.