Retired Law Professor Howard Friedman has an interesting blog he calls Religion Clause. He posts several items daily, relating to court cases and legislative actions that impact the first amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
This morning, Professor Friedman reported on Congressional action on the so-called “Matthew Shepherd Hate Crimes Protection Act”. Matthew Shepherd was the young man from Wyoming who was brutally tortured then murdered for no apparent reason except that he was gay. His mother is now the leading advocate for the bill. Friedman reports,
On Thursday night, the U.S. Senate agreed to add the Matthew Shepard Hate Crimes Prevention Act as an amendment to the 2010 National Defense Authorization Act. First by a vote of 78-13, the Senate agreed to an amendment clarifying that the hate crime provisions should not be construed or applied to infringe on First Amendment rights. Then the Senate voted 63-28 to invoke cloture on the hate crimes bill [overriding a Republican filibuster attempt]. Voice vote passage immediately followed.
The essence of the bill is to increase the juridical penalties when a defendant is convicted of a felonious act of violence against another and the act was proven to be motivated by:
prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim
What is most curious about the whole issue is the nature of the opposition.
Senator McCain pontificated his righteous indignation that the bill was attached to the National Defense Act. Whether one agrees or disagrees with the process of legislative wrangling, at least the Senator from Arizona had some rational basis for his opposition. The same cannot be said of the right wing rumor mongering that is downright false.
Lie number 1, which comes from James Dobson’s Focus on the Family:
Because the liberals in Congress would not define sexual orientation, we have to assume that protection under the law will be extended to the 30 sexual disorders identified as such by the American Psychiatric Association. Let me read just a few of them: bisexuality, exhibitionism, fetishism, incest, necrophilia, pedophilia, prostitution, sexual masochism, urophilia, voyeurism, and bestiality.
Indeed, some right wing organizations refer to the Matthew Shepherd bill as the “Pedophilia Protection bill.” Spaulding reports that the estimable Pat Robertson suggests the bill will “protect people who have sex with ducks.”
Here’s the truth:
Pedophilia is not a sexual orientation by anyone’s definition – only in the imagination of Religious Right organizations and political figures trying to derail the legislation with the most inflammatory charge they can come up with. As Rep. Tammy Baldwin pointed out during debate, sexual orientation is explicitly defined in the federal hate crimes statistics act as “consensual heterosexuality and homosexuality. And in spite of the Right’s claims about paraphilias, the American Psychiatric Association defines sexual orientation very clearly as homosexuality, heterosexuality, or bisexuality.
Despite Dobson’s lie that the “the liberals in Congress would not define sexual orientation", the bill clearly does that. Secondly, “sexual orientation” is clearly defined by the American Psychiatric Association as “homosexuality, heterosexuality, or bisexuality”. Pedophilia and the rest of Dobson’s list that rolls off his tongue so easily are not included in the definition of sexual orientation.
Lie number 2, the bill violates rights to free speech and expression and also violates the freedom of religion.
“if anybody speaks out about homosexuality, says it’s a sin, says its wrong, says it’s against the Bible, that individual would be charged with a quote, hate crime.”
These are Robertson’s words, but they reflect the false claims of a broad swath of the religious right.
Here’s the truth:
First, according to Professor Friedman, the Senate yesterday passed an amendment 78-13 that clarified that the act “should not be construed or applied to infringe on First Amendment rights.” According to the language of the act itself,
3) CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall 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 and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.
(4) FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.
Second, the act presupposes a felonious act of violence against another. In other words, it is not speech or thought or expression or association that is actionable – it is only a physical act of violence against another that rises to the level of a felony. The act does not criminalize behavior that was previously legal; it merely adds penalities to actions that are already criminal when that criminal act is motivated by hate against a protected group.
As an active member of a Christian congregation and a Christian denomination, I am galled at the self-righteous, judgmental, and deceptive actions of the self-appointed watchdogs of morality on the religious right whose behavior seems to me to be decidedly unchristian. One has to wonder about the religious right’s abject failure to follow the command, You shall not bear false witness against your neighbor. Mr. Dobson, Mr. Robertson, and the rest of your ilk, you do not speak for me.