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Sixth Circuit holds that three Michigan pastors lack standing to challenge constitutionality of the Hate Crimes Act

Hate Crimes

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.


  • 1. AnonyGrl  |  August 6, 2012 at 10:17 am

    Excellent ruling, and well thought out.

  • 2. AnonyGrl  |  August 6, 2012 at 12:30 pm

    I support the pastors' right to preach things (stopping short of inciting people to violence). That is what the law says they can do. I would hope that those same pastors would support MY right to call them bigots and bastards for doing so, which is MY right, as long as *I* don't encourage people to commit violence against them.

    The problem is, what the religious right tends to forget is that freedom of speech does not guarantee them an audience. It does not guarantee them that I won't speak louder, and it does not guarantee them that no one will disagree with what they say.

    The Hate Crime laws do not infringe on freedom of speech. That we call them out on their bigotry has nothing to DO with the Hate Crime laws. It has to do with OUR freedom of speech to say that they are awful and evil and should think about what they do, or shut up and go home (the latter, by preference). I am not taking them to court, just standing next to them while they preach their hatred and shouting them down, which is my right.

  • 3. fiona64  |  August 7, 2012 at 8:43 am

    IMO, the whole thing hinges on them not wanting to be held accountable if they say something "inciteful" (for lack of a better term) and one of their whackjob congregants is arrested for gay-bashing (or worse).

    I wholeheartedly concur that people conflate freedom of speech with freedom from judgment, and that it is beyond tiresome.

  • 4. AnonyGrl  |  August 6, 2012 at 12:50 pm

    In NOMblog thread discussion that ended up being about violence against homosexuals as compared to violence against Christians, a NOMbie posted about the LGBT community "We're "hurting" nobody. You choose to be hurt."

    I am disgusted that I am not allowed to post there and say the following:

    "Yes, of course we do. In fact, when a woman has homosexual slurs carved into her skin, it is obviously her CHOICE to be hurt by this. When two young women are shot in the head and one dies, she certainly CHOSE to expire. When a toddler is beaten to death by his mother's boyfriend for the supposed crime of "acting gay" it is clearly the toddler's fault for CHOOSING to let the man kill him."


  • 5. SoCal_Dave  |  August 6, 2012 at 2:14 pm

    This ruling is awesome. Not just because we won (which is pretty damn great), but because it is based on FACTS, not myths, or made-up conclusions or outright lies. This gives me hope.

  • 6. Paul Fleege  |  August 6, 2012 at 4:20 pm

    OMG!!! Someone should tell them that Canada and England are separate countries AND they have different laws/Constitutions regarding free speech and hate crimes then the United States of America has. Outside of showing how ignorant they are about US law and the Constitution—-and Geography—–they love to use examples from both of those countries so they can say they will be victims if same gender marriage were/was allowed. It is an embarrassment=====>is it bad private education or home schooling (like from Michele Bachmann) or what???

  • 7. Mike in Baltimore  |  August 6, 2012 at 4:47 pm

    About the only things Canada and Great Britain have in common today are:

    1. Queen Elizabeth is the head of state;
    2. Both countries speak a version of the English language;
    3. Both countries' laws are based upon the Magna Carta and English common law.

    Come to think of it, items 2. and 3. mostly apply to the U.S., too (although item 2 much more uniformly than in the U.S.), but I don't think most people would confuse the US with Canada and/or England.

  • 8. Paul Fleege  |  August 7, 2012 at 4:02 pm

    Mike, most bright people would know and understand that. Unfortunately I have two examples where people who should know better were blurring the geographic lines.

    Example # 1) American Family Association put out a DVD labeled "Speechless: Silencing the Christians". So one would assume that it contained examples of American (rightwing) Christians having a "hate crime" law used to silence them. Well low and behold who are they interviewing but a British couple that was being prosecuted in England for speaking out against homosexuality. Not any chance of that happening in the United States—but who cares about reality. If they can scare you into thinking the government will be busting down the church door, you are more likely to get them to do whatever you tell them to do to prevent that from happening here in America.

    Example 2) Archbishop Nienstedt of St. Paul/Minneapolis said this:

    "…we are not the only North American country where Catholics are being tested in terms of religious freedom. In Canada, the legislature voted a few years ago to alter the definition of marriage to include same-sex couples.

    Recently, Catholic schools there have been told they must establish “gay-straight clubs” for students with same-sex attraction, as well as for transgendered students. These are clubs in which a lifestyle choice deeply damaging to human dignity is being put forward as acceptable and even laudable, despite the strong objections of the church.

    In essence, the state has told Catholic schools that the position of the church on this issue does not matter. What matters is that the state has the authority to decide, even when it means that the rights of the Catholic conscience are trampled upon.

    Many people have said that altering the definition of marriage here in the state of Minnesota would have little impact on the culture or the free expression and practices of churches." Again using another country as a reason why Americans should be very scared if Marriage is NOT defined as one man/one woman in the state Constitution.

    Ultimately with the rightwing nuts, truth and reality doesn't matter.

  • 9. Paul Fleege  |  August 7, 2012 at 4:07 pm

    Opps, I forgot to include his conclusion,

    "But I believe our Catholic brothers and sisters to the north would argue otherwise in light of this recent experience. This is just one more reason for ensuring that the definition of marriage as a union between one man and one woman should be guaranteed by a constitutional amendment."

  • 10. Sagesse  |  August 7, 2012 at 4:37 pm

    Bearing in mind also that the Catholic schools in question are publicly (government) funded. And the law, oddly enough, is intended to protect the rights of the students.

    Speaking as a Canadian and a resident of Ontario, where the GSA kerfuffle is going on.

  • 11. Reformed  |  August 6, 2012 at 9:38 pm

    If their interpretation of their bible says that gay people should be put to death, how could any rights be granted to gay people, except maybe due process and a speedy trial?

  • 12. JayJonson  |  August 7, 2012 at 6:48 am

    The concurring opinion rebukes the bigots for lying. I like that.

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