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Hate Crimes Law May Have Loopholes

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Federal hate crimes legislation that just passed the House would make it illegal to discriminate against someone based on their sexual preferences. Critics claim the bill could open up a Pandora’s box of conflicts.


One of the most pressing concerns is that the bill, the Local Law Enforcement Hate Crimes Prevention Act (HCPA), could target acts of violence that were carried out for reasons unrelated to sexual preference.

Brian Walsh, senior legal research fellow at the Heritage Foundation, said HCPA did not require any proof that a crime was committed because of a person’s sexual identity, so prosecution could be willy-nilly.

The “amorphous standard would federalize almost all incidents of violent crime, even those that have nothing to do with bias, prejudice, or animus toward the victim because of his or her membership in a particular group,” he said.

Walsh pointed out that most violence is committed because of some racial or gender bias, for example, robber targeting a woman because she offers less resistance than a man. But claiming those violent acts are worse than violent acts against other American citizens is simply unfair.

“Justice will now depend on the race, gender, sexual orientation, disability or other protected status of the victim. It will allow different penalties to be imposed for the same crime,” said Rep. Lamar Smith (D-Tex.), ranking member on the Judiciary Committee.


Smith also said HCPA could target those who opposed gay marriage and forms of unconventional sexual expression.

“Some of my colleagues on the other side claim that the bill protects religious speech. But religious leaders could still be subjected to criminal investigations, and be reluctant to preach the teachings of their faith as a result of this bill,” said Smith.

Republican staff pointed to an amendment that Democrats rejected during the discussion of the bill, which would have prohibited prosecution of those who simply spoke about sexual identity issues. Because of this exclusion, the prohibition against prosecuting speech had no teeth.

Democratic Rep. Alcee Hastings disagreed. “The bill specifically protects against physical harm and does not impinge pubic speech or writing in any way,” said Rep. Hastings (D-Fla.).

Ilya Shapiro, senior fellow in Constitutional studies at the Cato Institute, said that unless speech against such things incited violence, prosecution wouldn’t be possible under HCPA.

“Speech that incites violence is not protected by the Constitution. Speech that does not incite violence is protected by the Constitution. This bill does not change that,” he said.


That didn’t stop Rep. Louie Gohmert (R-Texas) from speaking out against HCPA at a conference Tuesday with other members of Congress and Christian leaders. A host of clergy denounced the bill’s potential to censor their speech.

“It’s going to cause at a critical moment in American history a chilling effect on the pulpit where we cannot preach about biblical morality and sexuality,” said Bishop Harry Jackson, senior pastor of Hope Christian Church in Beltsville, Md.

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