One of the reasons I’ve had a hard time believing conservative “Christians” regarding their stand on a federal hate crime legislation. Many have been making the “thought crime” argument against the bill commonly known the Matthew Shepard Act because it includes protections based on the thoughts of the criminals.  

The rebuttal argument against this “thought crime” meme is provided below the fold, in excerpts from the Supreme Court Of The United States’ (SCOTUS’) Wisconsin v. Mitchell. Essentially, in the SCOTUS decision defending hate crime punishment enhancements, Associate Justice Scalia wrote for the majority:

In determining what sentence to impose, sentencing judges have traditionally considered a wide variety of factors in addition to evidence bearing on guilt, including a defendant’s motive for committing the offense.

…Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm…The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases.

…The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.

Often in arguing the “thought crime” meme, religious right figures make points to the effect of this one from Focus On The Family:

Those who speak out against homosexuality, including pastors, could face prosecution for “inciting” violence against gay individuals.

Unless the “[t]hose who speak out against homosexuality, including pastors” have committed bias motivated crimes, then any hate speech is protected speech; their freedom to make hateful statements could only be considered “evidentiary use of speech to establish the elements of a crime or to prove motive or intent” only if a bias motivated crime — likely a violent crime. Statements, such as convicted hate crime murderer Allen Ray Andrade‘s statements,…

Gay things must die.

And…

It’s not like I went up to a schoolteacher and shot her in the head or … killed a law-abiding straight citizen.

…became significant for conviction of a bias motivated crime in the Angie Zapata Hate Crime Murder Trial, and for sentencing — specifically because these statements went to a bias motivation for Angie’s brutal murder.

There are federal hate crime protections already on the books. Some of the protected classes include race and religious creed, so it’s always been rather disingenuous for religious right organizations and figures to call the Matthew Shepard Act a “thought crime” bill while not calling on repeal of hate crime laws that list religious creed within their protected classes.

Matt BarberWell, the first religious right figure to call for a repeal of all hate crime laws is Matt Barber of the Liberty Council. in his piece in the American Daily — entitled Repeal All ‘Hate Crimes” Laws (where oddly, Matt Barber quotes himself in third person), he states:

The U.S. Senate is preparing to vote any day on S. 909, a bill that would grant specially preferred government status to a select few citizens based on the behaviorally driven, fluid and undefined concepts of “sexual orientation” and “gender identity;” this, to the express exclusion of other citizens.

While the House version of the bill was being considered, some lawmakers attempted to make it more inclusive and curtail its inherent discriminatory nature by offering an amendment that would include other identifiable groups such as veterans, the elderly and the homeless. The bill’s sponsors inexplicably rejected that request without explanation.

“This underscores the fact that all ‘hate crimes’ laws, both state and federal, inarguably advance ‘unequal’ protection of the laws,” said Matt Barber, Director of Cultural Affairs with both Liberty Counsel and Liberty Alliance Action. “This flies in the face of the Fourteenth Amendment to the U.S. Constitution.

“For this reason I am calling for lawmakers on both sides of the aisle, in Washington and around the country, to not only reject S. 909, but to begin working toward repeal of all state and federal ‘hate crimes’ laws.”

I’d strongly disagree with his reasoning that gets him to the point where he calls for the repeal of all hate crime laws, but in calling for removal of all hate crime laws — even ones that cover the protected class to which he personally belongs — is being consistent. That he’s the first says something about the inconsistency of other religious right figures, and highlights the hypocrisy of Focus On The Family and its figurehead James Dobson, the Concerned Women For America and its figures Wendy Wright and Beverly LaHaye, and other religious right organizations and figures that haven’t made the same kind of statements that Matt Barber has now made in calling for the repeal of all hate crime statutes.

If any of these religious right organizations or leaders make such a call, it would be interesting to see how it would impact their recent alliances with African-American pastors on Homosexual Agenda™ related issues.Excerpts from the SCOTUS decision Wisconsin v. Mitchell:

In determining what sentence to impose, sentencing judges have traditionally considered a wide variety of factors in addition to evidence bearing on guilt, including a defendant’s motive for committing the offense. While it is equally true that a sentencing judge may not take into consideration a defendant’s abstract beliefs, however obnoxious to most people, the Constitution does not erect a per se barrier to the [508 U.S. 476, 477]   admission of evidence concerning one’s beliefs and associations at sentencing simply because they are protected by the First Amendment. Dawson v. Delaware, 503 U.S. 159; Barclay v. Florida, 463 U.S. 939 (plurality opinion). That Dawson and Barclay did not involve the application of a penalty-enhancement provision does not make them inapposite. Barclay involved the consideration of racial animus in determining whether to sentence a defendant to death, the most severe “enhancement” of all; and the state legislature has the primary responsibility for fixing criminal penalties. Motive plays the same role under the state statute as it does under federal and state antidiscrimination laws, which have been upheld against constitutional challenge. Nothing in R.A.V. v. St. Paul, supra, compels a different result here. The ordinance at issue there was explicitly directed at speech, while the one here is aimed at conduct unprotected by the First Amendment. Moreover, the State’s desire to redress what it sees as the greater individual and societal harm inflicted by bias-inspired conduct provides an adequate explanation for the provision over and above mere disagreement with offenders’ beliefs or biases. Pp. 485-488.

And…

Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought [508 U.S. 476, 488]   to inflict greater individual and societal harm…The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases. As Blackstone said long ago, “it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness.” 4 W. Blackstone, Commentaries *16.

And…

The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.