Sixth Circuit holds that three Michigan pastors lack standing to challenge constitutionality of the Hate Crimes Act
August 6, 2012
By Scottie Thomaston
The Thomas More Law Center, on behalf of three Michigan pastors, filed a constitutional challenge to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, signed into law in 2009 by President Obama. The Law Center alleged that the Act punished “thought crimes” and speech, although the Act’s purpose is to deter violent crimes against minority groups. The district court ruled that the pastors don’t have standing to challenge the Act, because they had not committed a violent crime against one of the groups protected by the act, and they had no intention to do so. Last week the Sixth Circuit Court of Appeals affirmed the decision that they lack standing.
The constitutional attack on the Act, the panel writes, is really only a political attack:
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.
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 law does not target speech, but rather violent acts:
And they filed this lawsuit in an unnecessary effort to ensure that the Hate Crimes Act will continue not to prohibit them from “publicly denounc[ing]” others.
Plaintiffs oppose the Hate Crimes Act. Somewhat inconsistently, they also say they oppose “crimes of violence.”
The panel says that plaintiffs want to say things in opposition to gays and lesbians, and since nothing in the Act prohibits that, there’s no challenge here that’s ripe:
Plaintiffs say they want no more than to “publicly denounce homosexuality” and “spread God’s Word” based on their interpretation of the Bible, without engaging in unprotected forms of expression such as “fighting words,” “true threats,” or “advocacy [that] is directed to inciting or producing imminent lawless action,” The Act does not prohibit Plaintiffs’ proposed course of speech.
The First Amendment does not cover violent acts:
Plaintiffs provide no legal authority for the proposition that constitutionally protected speech—that is, other than “fighting words,” “true threats,” or “advocacy [that] is directed to inciting or producing imminent lawless action,” Black, 538 U.S. at 358-59—is a “violent act” that “causes bodily injury.” We looked; there isn’t any.
And, no, no one will get arrested under the Hate Crimes Act for quoting the Bible:
They try, for example, [to explain the type of speech they want to use that will criminalize them under the Act] 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.
And expression of religious beliefs through speech does not lead to the conclusion that there is intent to commit a violent act:
However, Plaintiffs point to no case in which mere expression of religious beliefs—even those in accordance with Leviticus 20:13 or similar passages—was found to establish such intent. Similarly, Plaintiffs cite no authority for the proposition that the possibility of an erroneous conviction makes a criminal statute unconstitutional. Obviously, it does not. Plaintiffs lack standing.
The pastors claim that “homosexual activists” have accused them of violating the Act and that has a chilling efect on their speech:
That chill, Plaintiffs say, comes froma combination of “a vocal group of homosexual activists in Michigan” and from supposedly supportive federal prosecutors. Plaintiffs say they have “set forth specific instances in which they have been accused of engaging in [conduct proscribed by the Act] by the very ‘community’ the Act was intended to protect.” These instances consist of several undated quotes by various people and organizations which generally accuse Plaintiffs and other homosexuality opponents of supporting or promoting violence through their religious messages. Of course, these comments say nothing about Plaintiffs’ actual intent, what the Act says, or how the Act might be applied to Plaintiffs by those with actual authority to implement it.
Indeed there is not even an expressed or implied threat of religious persecution under the Act:
And conspicuously absent from Plaintiffs’ allegations is any express (or even implied) threat of official enforcement of the Hate Crimes Act against Plaintiffs or any other religious leaders for the type of conduct they seek to practice: there is nothing that objectively supports “a credible threat of prosecution.”
And the government is not going to put people under surveillance for engaging in protected religious speech:
The same is true of Plaintiffs’ claim that the Hate Crimes Act will subject them to adverse law enforcement action short of prosecution, such as investigation and surveillance: they have 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.
So the pastors lack standing to pursue a constitutional challenge to the Act.
A concurring opinion adds quite a bit more interesting information about the legislative history of the Hate Crimes Act, which makes is very clear the Act was intended to protect against violent crimes, not speech or religious activity.