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The Senate is expected to pass legislation that would broaden the hate crimes law to include sexual orientation, a proposal that has set-off alarm bells for conservative Christian groups in the last several months.

The House passed a different version of the bill in April that would allow federal aid to investigate crimes committed because of an individual's sexual orientation. Last week, the House voted 281-146 to approve the legislation, which includes new language that could alleviate some religious freedom concerns, says Carl H. Esbeck, law professor at the University of Missouri.

The bill protects an accused person's free exercise of religion, speech, and association unless it is intended to "plan or prepare for an act of physical violence" or "incite an imminent act of physical violence."

Groups opposed to the bill were concerned that if a religious leader were to preach against homosexuality and a parishioner were to later commit a hate crime against someone for being gay, the minster could be charged with aiding and abetting the crime.

The act states, "Nothing in this division shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs."

That language suggests that in most circumstances, a religious leader could not successfully be prosecuted under this act, Esbeck said.

"I'm grateful for the work that was done by others to make this act far, far more accommodating to religious freedom concerns, which were legitimate," he said.

However, Erik Stanley, senior legal counsel for the Alliance Defense Fund, believes that the provisions do not offer anything new that isn't already protected under the Constitution.

"While the wordings are nice, the amendments are really meaningless," Stanley said. "Treating them as a panacea that would treat the problems of the hate crimes law would be wrong."

Stanley fears that once a hate crimes bill becomes law, a law preventing hate speech could follow, citing examples from Sweden, Canada, and Australia, where pastors have been prosecuted for sermons they have preached.

Religious leaders could be called as witnesses against a person charged with committing a violent act against an individual based on that individual's sexual orientation or gender identity, which concerns groups like Family Research Council (FRC).

"Our fear is that it would create silence in churches, said Tom McClusky, vice president for government affairs for FRC. "They're less likely to preach against homosexuality if they think the FBI will be knocking on their door."

Charles Haynes, senior scholar at the First Amendment Center, believes that the bill would not have hindered religious freedom when it was first introduced.

"If we look to Europe, there certainly are examples of hate speech legislation being used to question religious speech. In the United States, we have such a strong legal protection for religious speech that it would be very unlikely for that scenario to play out here," Haynes said. "Even though it might be apparent under the law that religious speech is protected, it's better to have it in the legislation and make sure it's clear they understood this law is not intended to target religious speech."

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act is named in part for Matthew Shepard, a gay, 21-year-old Wyoming college student who was murdered 11 years ago Monday. President Obama has promised to sign the bill, praising the measure in his speech Saturday to the Human Rights Campaign.

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October (Web-Only) 2009, Vol. 53