By Peter J. Smith

WASHINGTON, D.C., July 17, 2009 ( – The United States Senate approved an amendment yesterday adding “hate crimes” legislation to the annual Defense Authorization bill, which would add “sexual orientation” and “gender identity” to the list of federally-protected classes.

The Senate voted 63 – 28 to attach S.909, the Matthew Shepard Hate Crimes Prevention Act (MSHCPA), to the $680 billion defense bill meant to support US troops fighting wars in Iraq and Afghanistan. Senate Democratic Majority Leader Harry Reid of Nevada favored attaching the hotly-debated bill as an amendment, instead of putting it forward as a stand-alone bill, in hopes of easing its passage, but his tactic drew outcry from Senate Republicans.

“Those of us who oppose this legislation – and it is important legislation – will be faced with a dilemma of choosing between a bill which can harm, in my view, the United States of America and its judicial system and a bill defending the nation,” protested Sen. John McCain, who denounced Reid's tactic as an “abuse of power.”

Critics have warned that the bill has a chilling effect on religious free speech against homosexuality, pointing out that similar laws in other nations have facilitated the prosecution of Christians who speak against homosexuality, particularly in Canada and the United Kingdom. More importantly, they charge, “hate crimes” laws violate the guarantees of equal protection under the law by creating preferential classes for justice.

“'Hate crimes' laws contradict the 14th Amendment to the Constitution and create unequal justice by elevating some groups of victims at the expense of others,” said Wendy Wright, president of Concerned Women for America. Wright pointed out that under the proposed law, “Victims who engage in homosexual, transgender, or other sexual behavior get special treatment over victims who are military officers, police officers or veterans,” such as the military recruiter who was slain in June by a Muslim convert at a shopping mall in Little Rock, Arkansas.

Sen. Sam Brownback (R-KS), however, submitted an amendment to the “hate crimes” measure in an effort to temper any effect the bill may have on free speech and the exercise of religion. Brownback's Senate colleagues adopted the measure by a vote of 78-13, which states that the “hate crimes” law will not be applied in a way that infringes upon freedom of speech or that “substantially burdens any exercise of religion   speech, expression, [or] association, if such exercise of religion, speech, expression, or association was not intended to   plan or prepare for an act of physical violence; or   incite an imminent act of physical violence against another.”

However the Senate version of the “hate crimes” bill does not yet reconcile with the House version, the Local Law Enforcement Hate Crimes Act, which alarmed conservative lawmakers as the bill fails to define or restrict the term “sexual orientation.” One Democratic representative heaped praises on the bill for granting heightened federal protection for all 547 “paraphilias” or sexual aberrations documented by the American Psychological Association.

Should the Senate approve the defense bill, the National Defense Authorization Act for Fiscal Year 2010 (S. 1390), the two “hate crimes” versions would have to be reconciled before it became law.

Although a great deal of concern has been expressed over protections regarding the freedom of speech and free exercise religion guaranteed under the First Amendment, the Federal Civil Rights Commission last month objected to the extension of “hate-crimes” laws, because it creates a situation in which a citizen can be prosecuted twice for the same crime: once by his state government, and again by the federal government.

 ”We believe that MSHCPA will do little good and a great deal of harm,” stated the commissioners in a letter to Senate leaders warning, “Its most important effect will be to allow federal authorities to re-prosecute a broad category of defendants who have already been acquitted by state juries – as in the Rodney King and Crown Heights cases more than a decade ago.”

“DOJ [Department of Justice] officials have argued that MSHCPA is needed because state procedures sometimes make it difficult to obtain convictions,” continued the letter.

“Such an argument should send up red flags. It is just an end-run around state procedures designed to ensure a fair trial.” 

Curiously, President Barack Obama may end up being the one who vetoes the “hate crimes” legislation if the Senate passes the Defense Authorization bill. The bill, just like the House version, includes funding for F-22 jets, which Obama has vigorously opposed. Obama has threatened to veto the defense bill, if it includes funding for the F-22.

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See related coverage:

Federal Civil Rights Commission Warns Hate Crimes Bill Poses “Menace” to Civil Liberties

Hate Crimes Bill to be Smuggled through Senate as a Legislative Amendment

Focus on the Family's Dobson on Hate Crimes Bill: “Utter Evil” Coming out of Congress

Obama Urges House of Representatives to Pass Sexual Orientation “Hate Crimes” Bill

Free Speech Concerns Ignored as “Hate Crimes” Bill Passes Fed. Judiciary Committee