Hate Crimes Bill Infringes First Amendment Rights
We’ve been sliding down this slope for too long.
When I joined the American Bar Association, I understood it was about making better laws and lawyers. It wasn’t supposed to have a social agenda, left or right. For example, the ABA offered model codes regarding appropriate objectivity and fairness from judges and lawyers that the attorneys in each state were to consider as the most appropriate rules for governing their professional actions.
In the 1980's lawyers with a social agenda began filling the ranks of the ABA. It began to show itself in the resolutions being made and passed. By 1988, the Association adopted a policy urging its members not to hold business or professional functions at clubs that discriminate on the basis of sexual orientation. In 1989, the ABA adopted a policy of urging the federal government, state governments and local governments to enact legislation prohibiting discrimination on the basis of sexual orientation in employment and housing. I recall seeing in the ABA Journal that states should be encouraged to send more homosexual delegates to the convention around that same time. Also, the ABA passed a controversial resolution in support of keeping abortion legal. Even some members who were pro-choice felt that the ABA was not the place to be pushing social issues. But the bar association had become the place to get social engineering done.
The model code of conduct for judges, called the ABA Model Code of Judicial Conduct, actually was improved in a number of ways by the early 1990's. One of the changes for judges, though, was that "A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice . . ." followed by a list of things most would agree on including "race, sex, religion, national origin, disability, age . . ." The laundry list then added a surprise to many in attorneys as it inserted the words "sexual orientation" as well as "socioeconomic status."
This created concern in some circles that the ABA was now into social engineering and trying to move an agenda with vague language that created problems for judges. Some writers following the new model code expressed concern that it would prevent a judge from even mentioning that a lazy, able-bodied defendant being put on probation should get a job and start making something of himself rather than being a burden.
States were pushed to adopt the ABA Model Code of Judicial Conduct and come out, as the social engineers felt, of the dark ages. Some states' legal elites did not want to be considered intellectually inferior, so they began to give in. Even in Texas, where the Texas Supreme Court decides on such changes to its own code for all judges, the court was mostly composed of quite conservative jurists at the time. However, they too did not want to be accused of intellectual inferiority, so they quickly moved to adopt it. Chief Justice Tom Phillips and Justice Nathan Hecht were both considered very conservative, socially and politically. But, all nine signed on to the new provisions to make it the guiding ethical rule for all state judges in Texas.
When Judge Cynthia Kent and I with other Smith County judges expressed concern to our friend, Justice Hecht, he felt we were over-reacting. I said that this new change will ultimately prevent a child custody judge from considering that one of the spouses practices homosexual conduct in front of the child. He said, "It will never come to mean that on my watch." He was wrong.
As I pointed out then and continue to point out in the hate crimes debate, words have meaning. And although right now "sexual orientation" may be said by some to include only heterosexual and homosexual preferences, someday some judges will begin to say that "sexual orientation" means exactly what it says. It means whatever you are oriented toward sexually cannot be held against you. So, if you are oriented sexually toward children, or toward animals, or corpses, or shoes, or whatever, that's ok. Who are we to judge?
In the Hate Crimes hearings last week, the Democratic proponents made immensely clear they did not want any definition in the bill to restrict its application. It was mentioned during debate that there was a definition of the term in another law that restricted its meaning to heterosexuality and homosexuality, but there was no reference allowed in our bill to that definition, so it does not control the Hate Crimes bill.
We pointed out that the Diagnostic and Statistical Manual of Mental Disorders IV had at least 30 different types of sexual orientation. Surely, we felt, the majority would allow at least some restriction to keep the new law from being too offensive. So, Steve King offered an amendment to at least exclude pedophiles from the special class of extra protection. However, this was voted down on party lines.
Every Democrat voted against excluding pedophilia from heightened protection, and each Republican voted to exclude pedophiles from any more protection than anyone else in America gets. As I pointed out at the hearing, other types of sexual orientation could be included if the term is given its plain meaning and even listed in the current DSM, including exhibitionism, voyeurism, or even necrophilia.
So far, 40 states plus the District of Columbia have been coerced into basically adopting the ABA Model Code of Judicial Conduct for judges. Under it, no state judge can say anything about sexual practices without risking grievances being filed and potentially being sanctioned or even removed from office. Iowa is not one of the thirty-seven who adopted it for judges, but they did adopt the prohibition for all lawyers. Since all of the higher level court judges have to be lawyers, the judges are actually governed. And isn’t the single most numerous profession in any legislature in the country the lawyers? What does that tell you about the laws they can make without violating their own cannons of ethics?
The battle in Texas to insert the "sexual orientation" language into the model codes for all attorneys was probably typical of some other states as well. Some lawyers objected to being muzzled permanently, but narrowly the new change passed the vote of the State Bar, thus becoming the rule for attorneys. In debate over whether lawyers’ religious beliefs about sexual orientation should be stymied by the new lawyers’ ethical cannons, a major argument was that the judges had to comply so why shouldn’t the lawyers, too. So the first step was to control the judges; then parlay that to prevent all lawyers from expressing their religious beliefs on sexuality if it differed from those who had overtaken the ABA.
After the model codes for all judges and lawyers prevented them from saying or doing anything to reflect the belief that such conduct was inappropriate, things could move more smoothly for anyone pushing a gay rights agenda. How could it not? Any judge or lawyer who said there were any orientations that were not appropriate risked then be skewered and deemed unethical. Unsuspecting litigants wanting to uphold traditional values of marriage or heterosexuality were walking into courts with the decks completely stacked against them. If a judge supported their position, he was unethical. So, should we be surprised by the judicial holdings in states like tradition-oriented Iowa regarding gay marriage when no lawyer there can ethically claim that homosexuality is inappropriate?
Overlapping that period, there has been a noble fight to finally diminish and defeat unfair prejudice based on race, creed, color, or gender. In that battle, those seeking to overcome unfair racial or gender bias have welcomed help from all sources. As the civil rights advocates were joined by those with a homosexual agenda, they were glad for the company. Homosexual advocates hitched their wagon to the racial and gender civil rights movement and attempted to equate all rights movements. Many of the civil rights warriors were driven by their Christian beliefs that all races should be treated equally as we are equal in God's eyes.
Many of those same ministers have seen societal damage to those who have practiced what the ministers saw as sexual immorality. Those ministers never dreamed that after the homosexual rights proponents arrived on the civil rights platform that those same gay rights advocates would someday turn and say, "Now you ministers have no right to say my homosexual conduct is inappropriate." They had no idea that they would now be muzzled by the same people who rode their movement to the capital.
It was a great honor for me to stand with dozens of African-American ministers who understand what sexual immorality can do to the foundation of a nation. Chuck Colson once pointed out that you cannot demand the morals of Woodstock and not expect a Columbine. The truth is that when a society is guided by "If it feels good, do it," then it is deteriorating into the most base of animal instincts. We leave behind the ability to override base animal instincts for the good of society. Animals do not have the ability to override instincts. They can choose between instincts as to which takes priority, but only humans can choose to override all base instincts including self-preservation, fight or flight, or even sexual instincts for a higher good of those around us. For example, if you are hungry as are strangers around you and you find food, you could choose to share with perfect strangers. Animals cannot set aside all instincts for societal good. Humans can.
Hate crimes legislation may bring an end to the ability to advocate that sexual immorality is unhealthy, as propounded in many religions including Christianity, Judaism, and Islam. In the legislation before the Judiciary Committee this week, hate crimes proponents claim that religious objections are specifically protected. The bill says that it does not restrict Constitutionally-protected speech, unless it relates to the underlying offense. But that’s clearly untrue: the underlying offense can be religious teaching or even quotes from religious books. There is no protection for religious speech negatively addresses sexual orientation. That, after all, might induce someone to do something violent.
The hate crimes legislation purports to address only crimes of violence or attempted crimes of violence. However, under Article 18 U.S.C. § 2(a) of the Federal Criminal Code: "Whoever . . . aids, abets, counsels, commands, induces or procures" a crime's commission, is punishable just as if he is the principal.
Here is one scenario about which every minister, rabbi, and imam would have to worry. A minister, rabbi, or imam preaches that homosexuality is wrong and leads to the ultimate destruction of moral society. Perhaps one might even quote language in sacred writing saying homosexuality is an "abomination." Then some nut who hears such preaching goes out and shoots a homosexual. When arrested, the mental defective says that the teaching of the minister/rabbi/imam is what "induced" him into committing the act. The minister/rabbi/imam could be argued to have induced the shooter. It raises a fact question that a prosecutor could demand be submitted to the jury at the religious leader's trial.
It also would follow that someone reading scripture that indicates homosexuality is wrong might be attempting to induce a Hate Crime. Criminal attempts can get someone arrested as well. Even if a minister were not convicted, arrests alone have a way of sending chills throughout the religious communities.
Any atheist might say he could care less about the foregoing arguments. But, if he is honest, he cannot disagree with the facts. The facts are that hate crimes are not an epidemic as some claim. There are horrible case scenarios which proponents of the bill say justify federal legislation. One such case is the horrible dragging death in Jasper, Texas. Yet, two of the three defendants in that case received the death penalty under state murder law (not hate crime law), and the third was sentenced to life in prison. No proposed Hate Crimes bill enhances the sentences there.
I, personally, could probably have supported a sentence in that case that allowed the victim's family to choose the method and location by which the defendants would be dragged to death. But, that is not before us in any of the hate crimes proposals, which would do nothing to alter the cases that are most often touted as reasons to have hate crimes legislation. I even offered a death penalty provision for the federal Hate Crimes bill so that would at least be an option in some states that did not have it. That too was voted down in committee on a party line vote.
There was the tragic case of Nicholas West in my home county where the young man was clearly targeted for being a homosexual, was kidnapped, and brutally killed. The defendants were charged with Capital Murder, convicted and have had the death penalty already inflicted. There is no proposed hate crime law anywhere that would have meted out a tougher penalty or had any affect on that case.
FBI statistics show that the incidence of hate crimes has declined over the last ten years for which we have available data. The FBI statistics show that the number of crimes alleged (many self-reported) to have involved some type of bias or prejudice in 2007 is actually lower than it was in 1997.
Alleged “hate crimes” comprise a fraction of one per cent of the actual violent crimes in America. There is no epidemic, yet proponents keep saying the evidence is clear that the instances require action. They won’t cite evidence to support their idea, but they will say it is out there and everyone just knows. Instead they constantly site terribly egregious cases in which hate crime legislation would have made no difference.
Every potential victim deserves protection. Every victim deserves help. Who one sleeps with should not be a reason to give that person heightened protection over any other victim. Hate Crime laws do. We even offered amendments to say that if you are determined to set up these special classes of people who deserve more protection than others, let’s include the military in there too. That was voted down on party lines as well. Every Democrat felt it was more important to protect someone because of whom he or she sleeps with than those who protect our very freedoms.
It just seems insane to this former judge that a defendant charged with a federal Hate Crime could literally come into court having committed a heinous attack on someone and his defense could be that he randomly selected his victim. He just wanted to hurt somebody, anybody. Therefore, if he convinced the jury of his random selection for his brutality, he would have to be acquitted of all federal hate crime charges. According to the Hate Crime bill, we just don’t think randomly select victims deserve as much protection.
The bottom-line message of all Hate Crimes legislation is this: If you are going to hurt me, shoot me, brutalize me, but please don't hate me. Make it a random, senseless crime of violence instead. You’ll walk free from the federal charges under the new Hate Crimes bill if you do.
Louie Gohmert, a Republican, has represented the First Congressional District of Texas in the U.S. House of Representatives since 2005.