The Senate finalized congressional action on the effort to extend hate crimes protection to homosexuals by passing the controversial proposal Oct. 22 as part of an annual military bill. Senators voted 68-29 for the 2010 National Defense Authorization Act.
The bill will go to President Obama, who has promised homosexual activists he will sign it into law. When Obama signs the legislation, it will mark the most significant federal legislative victory to this point for the homosexual-rights movement.
After the Senate vote, Joe Solmonese of the Human Rights Campaign described the hate crimes provision as the country's "first major piece of civil rights legislation for lesbian, gay, bisexual and transgender people." The Human Rights Campaign is the country's largest homosexual rights organization.
The hate crimes language, however, could result in threats to the freedoms of those with biblically based convictions regarding homosexual behavior, some of its foes said afterward.
The legislation has the "potential for chilling religious speech regarding homosexuality," said Barrett Duke of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).
Tony Perkins, president of the Family Research Council, said in a written statement the bill "is part of a radical social agenda that could ultimately silence Christians and use the force of government to marginalize anyone whose faith is at odds with homosexuality."
The hate crimes provision in the defense bill would add "sexual orientation" and "gender identity," as well as disability, to the current categories -- such as race, religion and gender -- protected from hate crimes. "Sexual orientation" includes homosexuality and bisexuality, while "gender identity," or transgendered status, takes in transsexuals and cross-dressers.
The ERLC and others fear the measure, combined with existing law, could expose to prosecution Christians and others who proclaim the Bible's teaching that homosexual behavior is sinful. For example, if a person commits a violent act based on a victim's "sexual orientation" after hearing biblical teaching on the sinfulness of homosexual behavior, the preacher or teacher could be open to a charge of inducing the person to commit the crime, some foes say.
The final version of the bill approved by the Senate and House included language designed to protect freedom of speech and the free exercise of religion, but some religious liberties organizations do not consider the protections adequate.
The hate-crimes language "allows for federal prosecution of someone whose speech was 'intended to' incite violence against homosexuals," Duke, the ERLC's vice president for public policy, noted in a written commentary. "The concern here is over how 'intention' will be determined. No doubt, there will be instances where federal prosecutors will be scrutinizing sermons about homosexuality, parsing the language that is used and the inflection in the voice, to attempt to discern whether or not the speaker intended to incite violence."
Another concern is the measure's approach to a person's attitude toward homosexuality, he said.
"The bill leaves open the possibility that someone could be prosecuted for a hate crime on the basis of what he thought about homosexuality, whether this attitude motivated the attack or not," Duke said. "In this case, Congress has opened the door to special federal prosecution not only for the act of violence but for what the attacker thought about the victim at the time of the attack.
"Whether or not these possibilities become realities is yet to be seen," Duke said.
He also said," [N]o one should engage in an act of violence against another person because that person is a homosexual."
Erik Stanley, senior legal counsel for the Alliance Defense Fund, told Christianity Today the language to protect freedom of speech and religion was insufficient.
"While the wordings are nice, the amendments are really meaningless," Stanley said. "Treating them as a panacea that would treat the problems of the hate crimes law would be wrong."
During floor debate Oct. 22, Sen. Jim DeMint, R.-S.C., expressed concerns that the bill would lead to the policing of thoughts and words. He pointed to a case in Canada in which a youth pastor, Stephen Boissoin, was fined $7,000 by the Alberta Human Rights Commission for writing a letter to the local newspaper critical of homosexuality. The ruling is being appealed.
Boissoin wrote, in part, "From kindergarten class on, our children, your grandchildren are being strategically targeted, psychologically abused and brainwashed by homosexual and pro-homosexual educators. Your children are being warped into believing that same-sex families are acceptable; that kissing men is appropriate."
DeMint said, "Canadians right now live under this kind of regime, where so-called human rights commissions operating outside the normal legal process prosecute citizens for espousing opinions the commissioners disagree with. Today in the United States only actions are crimes. If we pass this conference report, opinions will become crimes. What is to stop us from following the lead of the European countries and American college campuses where certain speech is criminalized?
"Can priests, pastors and rabbis be sure their preaching will not be prosecuted if it says certain things are right and wrong?"
U.S. Attorney General Eric Holder commended the Senate's action, saying enactment of the hate crimes legislation has been one of his "highest personal priorities" since he took office in January.
In a written statement, Holder called congressional passage "a milestone in helping protect Americans from the most heinous bias-motivated violence. Hate crimes victimize not just individuals, but entire communities. Perpetrators of hate crimes seek to deny the humanity that we all share, regardless of the color of our skin, the God to whom we pray, or whom we love."
The legislation would authorize the attorney general to provide assistance to state and local officials in the investigation and prosecution of hate crimes.
The House of Representatives voted 281-146 on Oct. 8 for the same defense bill, which was used as a vehicle for the hate crimes measure though it is not directly related to the controversial provision.
The House voted 249-175 in April for hate crimes expansion as a stand-alone bill. The Senate approved similar hate crimes language as part of the defense authorization bill in July. The different versions of the defense legislation went to a conference committee made up of members of both chambers to work out a compromise. That committee reported the bill out with the hate-crimes language included.
The Senate roll call Oct. 22 saw eight Republicans join with 58 Democrats and two independents in voting in favor of the defense bill. Opposing the measure were 28 Republicans and a Democrat, Russ Feingold of Wisconsin.
Before their vote on final passage, senators voted 64-35 to invoke cloture, or stop debate, in order to bring the defense legislation to the floor. In the cloture vote, 34 Republicans and Feingold voted "nay." Cloture requires 60 votes to be successful.
Under the provision in the defense bill, people convicted of a hate crime would be subject to more prison time and penalties than people who commit a crime that falls outside the class of hate crimes.
According to the hate-crimes language in the bill, it "applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim."