Congress is about to pass Federal Hate Crimes Legislation that undermines our Constitution and conflicts with state law. No one condones violent hate motivated crimes but there is much more to the question of whether a new and additional criminal statute is needed than simply reaching a consensus on our common disdain for hate.
For eight years running (prior to 2006), Democrats in the Utah Legislature tried to pass “hate crimes” legislation that would add “sexual orientation” to their special class of citizens who they contend are entitled to heightened protection and enhanced criminal prosecution. Although there are many tragic and reprehensible instances of acts involving a violent mental state, the degrees of criminal offenses in our laws all the way up to first degree murder and capital punishment are sufficient to provide justice unless an added social statement is desired to establish special classifications of citizens that must call for increased punishment.
“Sexual Orientation” is Not a Separate and Privileged Classification of Citizens Under the Law
Courts apply an established body of law regarding a recognized “suspect class” of citizens (race, religion and ethnic origin). A “strict scrutiny” test is applied to any legislation regarding such groups. The inclusion of “sexual orientation” in “hate crimes” legislation is proposed by supporters of same-sex marriage who want this law and other legislation to give them the public sanction and endorsement they seek for same-sex couples. They want to treat “sexual orientation” under the law the same as constitutionally protected race, religion and ethnic origin. That, however, is unfounded and unnecessary.
Utah’s “Hate Crimes” Statute
In 2006, I went to the Utah “Hate Crimes” Bill sponsors and discussed this with them in detail. I presented supporting legal authority and explained that if they had no other agenda than to create a penalty enhancement for extreme criminal acts that have an additional terrorizing effect for all citizens (who are all created equal), we could work together to pass an appropriate Bill and not simply defeat their version yet again. They agreed and together we went from overwhelming defeat to overwhelming approval. Through those combined efforts, the Utah Legislature passed and adopted the following legislation:
Utah Code 76-3-203.4 —- Aggravating Factors
- The sentencing judge or the Board of Pardons and Parole shall consider in their deliberations as an aggravating factor the public harm resulting from the commission of the offense, including the degree to which the offense is likely to incite community unrest or cause members of the community to reasonably fear for their physical safety or to freely exercise or enjoy any right secured by the Constitution or laws of the United States.
- The sentencing judge or the Board of Pardons and parole shall also consider whether the penalty for the offense is already increased by other existing provisions of law.
- This section does not affect or limit any individual’s constitutional right to the lawful expression of free speech or other recognized rights secured by the Constitution or laws of the state or by the Constitution or laws of the United States.
Congress should follow Utah on “Hate Crimes”
Congress should follow Utah’s lead and not make “sexual orientation” a separate defined class of citizens or a modifier of our existing laws governing all citizens. Notice that the focus of the Utah statute as “an aggravating factor” is “public harm resulting from the commission of the offense, including the degree to which the offense is likely to incite community unrest or cause members of the community to fear for their physical safety or to freely exercise or enjoy any right secured by the Constitution of the state of by the Constitution or laws of the United States.”
We did not seek to alter the Constitution or attempt to create new rights or a special class of uniquely protected citizens. We tied ourselves to established law and focused on the public good and the community as a whole. No special list of individual groups is needed. The use of such special groups (as some states have done and as Congress is about to do) has serious side effects. Such a law significantly alters our Constitution. We also made sure in Utah that freedom of religious speech and expression of moral opposition to same-sex marriage and other related proposals are not “hate speech” or “hate crimes.”
Utah Code 76-3-203.3 also corrected a weakness in Utah’s former “hate crimes” statute by not limiting it to the specific intent of the criminal offender. It now includes that which has the effect of causing a person (and not a special list of citizens classified by their sexual orientation) to reasonably fear to exercise or enjoy a recognized constitutional right.
Now, President Obama and the Democrat majority in Washington are about to adopt what Utah expressly rejected. This will seriously undermine our Constitutional law. Obama has pledged to repeal the Defense of Marriage Act and is committed to expanding abortion and “gay rights”. The proposed new “Hate Crimes” Bill in Congress is part of that agenda.
The proposed Federal legislation unnecessarily creates a new and additional criminal law that singles out and treats acts of violence against one class of citizens different than all others as if all human life is not of equal value. It also creates special protection for “sexual orientation” in other areas of the law. It is a known “means to an end” that goes far beyond the stated purpose of the proposed legislation. It is all part of the same-sex partner agenda intended to publicly endorse and sanction such relationships as a matter of official public policy. Our criminal laws already have the degrees and enhancements required to address shocking and repulsive levels of aggravated criminal acts without separating the victims into separate classifications of citizens.
There is nothing wrong with “penalty enhancement” statutes generally. (They exist in numerous areas of criminal law such as repeat offenders). However, the U.S. Supreme Court has ruled that a critical distinction must be made between speech, expression and thought, which are protected and conduct, which is not.
State “Hate Crime” Laws
In reviewing the various state statutes across America in this area, they tend to use one of five different approaches to address what are characterized as “hate crimes”:
- Criminalizing interference with the lawful exercise of recognized civil rights as defined in state and federal Constitutions.
- Creating a new freestanding statute that creates new rights and criminall, y penalizes their violation (such as malicious behavior, harassment or ethnic intimidation based on prejudice).
- “Coat tailing” statutes that add a “hate crimes” dimension to existing law. (Added penalties are provided for religious or ethnic prejudice).
- Reclassification of crimes to identify and increase the punishment of those that are based on prejudice.
- Penalty enhancement for what amounts to a “bias crime”.
Utah has taken the first approach. As you can see, under most statutes, the focus is usually on the thoughts and motivation of the criminal. And yet, all violent crimes are malicious and escalating penalties are already provided in the law. (For example, how do you further enhance or elevate a crime above first degree murder and capital punishment when applied to the most heinous acts as outlined in the law?).
What is happening now is that extraneous social agendas are being advanced by rewriting our criminal laws and filling them with additional specific prohibitions (“thou shalt nots”) that serve as a forerunner to future mandates (“thou shalts”) and the affirmative use of the force of law to advance their social objectives. (This is the same tactic used by those who have imported from California and elsewhere various Bills which they hope to use to insert the term “sexual orientation” into Utah law and conjure up claims of “discrimination”. These are packaged as the “Common Ground Initiative” but are actually very uncommon and ground breaking).
“Suspect Class” and “Sexual Orientation” under current Constitutional Law
Putting the term “sexual orientation” in our laws has serious Constitutional implications. Anything that creates a new “suspect class” of citizens based on that criterion can cause the “rational basis” test to be replaced by the “strict scrutiny” test. What is that and why does it matter? The rational basis test respects the separation of powers and defers to the Legislative Branch as the people’s elected representatives. It is a principle of analysis and standard of review used by the Courts in applying the due process and equal protection clauses of the Constitution.
Whenever someone sues and claims that a law is “discriminatory” and must, therefore, be overturned and set aside, the Court typically applies the deferential “rational basis” test to such claims. The Court upholds all legislation passed by the Legislative Branch if it has a rational or reasonable basis. The Court does not substitute its own opinion or reasoning. (Only the most liberal and activist judges would ever think or attempt to legislate from the bench).
The merits and soundness of the rational basis test is evidenced in the ruling of the Federal Eleventh Circuit Court of Appeals in the case of Lofton v. Secretary of Department of Children and Family Services, 358 F.3d 804 (2004 U.S. App.), aff ‘d 377 F.3d 1275 (2004) (en banc)). While upholding the Florida Legislature’s prohibition of adoption by same-sex couples, the Court acted as a model of judicial restraint and stated:
“We do not sit as a super Legislature to award by judicial decree what was not achievable by political consensus.”
In contrast, when a statute pertains to or touches upon a recognized Constitutional right such as the protection of race, religion, and ethnic origin, the Court will apply the much more stringent “strict scrutiny” test. Then, the legislation is presumed invalid and the burden of proof shifts. The law can then be set aside if the Court concludes, in its opinion, that the law does not sufficiently serve a “compelling state interest.”
Supporters of same-sex marriage want to elevate “sexual orientation” and treat it as the constitutional equivalent of the enumerated liberties set forth in the Bill of Rights and established constitutional law. This has far reaching consequences. In California and Iowa, State Supreme Courts ignored generations of precedent and chose to apply “strict scrutiny” rather than “rational basis” in an attempt to legalize same-sex marriage by judicial decree and not the will of the people. This is what is at stake when the type of “hate crimes” legislation is enacted that Congress is about to pass under Obama, Reid, Pelosi and the Democrat majority in Washington.
Voice Your Opposition to the Democrat’s Proposed Federal Hate Crimes Legislation
As occurred in Utah, the Democrats in Washington have tried and failed for years to pass “hate crimes” legislation based on “sexual orientation.” Now, they believe they have the votes and the President to do so. We respectfully submit that the Utah model is more appropriate. It accomplishes what the Bill sponsors say they want to achieve without expanding what supporters of same-sex marriage speak of and seek to promote as “gay rights.” The proposed Federal “hate crimes” statute is an unwise and unnecessary criminal law that only serves a thinly disguised and seriously flawed public policy objective.
Posted by: LaVar Christensen