Published April 30, 2009
A Senate hate crimes bill that would extend federal protection to gay and transgender victims is rousing the ire of social conservatives who say their right to free speech will be jeopardized if it becomes law.
"In and of itself this law can be applied to speech. The nature of assault -- putting someone in fear of their safety -- what will that mean for someone preaching against homosexuality?" said Mathew Staver, founder of the Liberty Council, a law firm that works on religious freedom cases.
"It elevates homosexuality to the same protective category as race. It's all part of the radical homosexual anarchist agenda," Staver said.
For much of the last decade gay rights activists have been fighting for inclusion within the federal hate crimes law, which places greater penalties on crimes that are committed based on race, ethnicity and religion. Social conservatives, including former President George W. Bush, have fought the legislation on the grounds it could be used to prosecute religious groups who say homosexuality is morally wrong.
But with Democrats now controlling both houses of Congress and the White House, gay rights activists are confident the law will pass and President Obama will sign it. The bill passed the House of Representatives on Wednesday, 249-175.
"This is one of the most supportive environments we've had," said Thomas Howard, Jr., programs director for the Matthew Shepard Foundation, an advocacy group named for the gay University of Wyoming student whose 1998 murder became a rallying point for homosexuals.
"The issue is when someone is targeted as a direct result of who they are. This isn't about telling people what they can and can not say."
Frederick Lawrence, a law professor at George Washington University, said there is nothing within the language of the hate crimes bill that would allow for the prosecution of individuals who simply speak out against a particular sexual or ethnic group.
"The only language that would be criminalized is language that would be meet the requirements of conspiracy or solicitation or direct incitement," he said. "Sharing opinions on things, even opinions others consider discriminatory, can not be criminalized."
But that is doing little to calm conservative bloggers, who are outraged by the possibility that a suspect acquitted of a crime in state court can be retried in federal court if the case becomes categorized as a hate crime.
"That is true and it's not unique to the hate crimes arena," said Lawrence. "There is an exception to double jeopardy called the dual sovereignty doctrine. But the Department of Justice has a very strict set of regulations when they can retry someone."
During the debate on the House floor Wednesday, Rep. Virginia Foxx, R-N.C., angered gay rights activists by claiming Shepard was murdered in a robbery, and not because he was gay.
"(The) hate crimes bill was named for him, but it's really a hoax that that continues to be used as an excuse for passing these bills," Foxx said.
The congresswoman later apologized, calling the word hoax "a poor choice of words," according to The Associated Press.
In 2004 the ABC television news program 20/20 ran a story in which Shepard's murderers said they killed the 21-year-old for drugs and money in a robbery gone wrong, and not because he was gay -- contradicting the testimony of some witnesses at his murder trial.
The piece went on to portray Shepard as a troubled individual and included an interview with a Wyoming police detective who said he believed the murder was not based on Shepard's sexual orientation.
"It's something we hear quite a bit," Howard said. "I'd like to ask (Foxx) if she has read the trial transcript. Certain individuals completely changed their stories."