Does the cutting of a religious man’s beard remind you of Nazi persecution? If so, you may be pleased that the US government is trying 16 men and women for the “hate crime” of forcibly shearing the beards and hair of Amish believers.
But there’s a twist: Those on trial are not haters of the Amish. They are Amish themselves — members of a dissident group that has broken away from the larger Amish community in Ohio.
These nasty assaults, which occurred over several weeks last fall, deserve to be punished. (Traditionally, Amish men stop shaving their beards after they marry as a symbol of religious devotion.) But charging the defendants with a federal hate crime is misconceived, a potentially harmful extension of the original hate-crimes law that was already drastically expanded in 2009. If the Amish beard cutters are convicted and their convictions are upheld, it will mark a defeat for religious and civil liberty, not a victory for equality.
When the federal hate-crimes law was first passed as part of the Civil Rights Act of 1968, it had a very specific purpose. It protected blacks from racist violence that was aimed at preventing them from voting, going to school or taking advantage of other state-provided activities to which they had gained equal access through the civil rights movement. The statute did not simply prohibit violence based on hate. It punished violence based on race, religion or national origin that was intended to interfere with federally sponsored activities.
In 2009, Congress passed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. The law extended protection to violent hate crimes motivated by a victim’s actual or perceived sexual orientation, gender or gender identity. Including anti-gay crimes was logical enough, but Congress did not stop there. It also dropped the requirement that the violence be aimed at interfering with a federally sponsored act. It became a purer hate-crimes law, aimed simply at violence motivated by bias.
This change, though little noticed, was a significant philosophical shift in the law’s purpose. It’s one thing to believe that racists shouldn’t be able to intimidate people trying to vote. It’s another to believe that two identical acts of violence should be punished differently because of the racist beliefs of one perpetrator. This view goes beyond practical enforcement of equality — it amounts to a moral condemnation of bias-hatred as especially heinous.
To some critics, this moral view smacks of mind control. Surely, they say, we should punish the act and not the thought.
Yet in truth we constantly judge a defendant’s state of mind, not to mention what the common law so poetically called his “depraved heart.” The whole theory of criminal law as we know it depends on condemning the same physical act with the same consequences differently, based on our belief that, say, malice aforethought is much worse than a spontaneous outburst.
So is an attack based on racist hate worse than the same attack based on greed or individual contempt? Under some circumstances, the answer is yes. The physical harm may be the same, but there is an extra harm in being attacked for who you are (or who you are imagined to be). Our collective commitment to equality and dignity needs to be vindicated when someone is singled out for violence on such a basis. As a society, we ought to condemn hatred-based violence — and a hate-crimes law is one effective way to do so.
The catch is that, having expanded hate-crimes laws, we need to be careful not to extend them to heinous conduct that isn’t a hate crime in the classic sense of the term. The killing of six Sikhs in their Wisconsin temple on Aug. 5 seems to be an archetypal hate crime in that the gunman targeted the victims because of what he believed to be their religion (even if he mistakenly believed the Sikhs were Muslims).
Amish believers attacking others to make a point about the nature of their shared religion is trickier to classify. In literal terms, this may be an act committed “because of” the victims’ religion. And it should in principle be just as bad for an Amish person to demean violently one of his co-religionists as for a non-Amish person to do so.
But the real-world consequences of punishing intra-religious disputes as hate crimes are troubling. The core of the problem is that a person who holds a comprehensive religious world view is especially likely to interact with others “because of” their religion.
As a result, if a deeply religious person commits an even slightly violent crime, the odds are good that it could be defined as a hate crime. If, for example, two gangs of ultra-Orthodox Hasidic teenagers from competing sects rough each other up, that could count as a federal hate crime because the groups are defined largely by their religious commitments.
Any dispute that takes place in the context of a church, mosque or synagogue would be ripe for federal intervention. Over time, a hate-crimes law designed as a shield to protect religious groups against bias could easily become a sword with which to prosecute them.
Beard-cutting is repugnant and wrong. But it’s a mistake to make everything immoral into a federal case.
Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist.