Gary Glenn, et al. v. Eric Holder

On October 28, 2009, President Barack Obama signed into law the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, commonly known as the “Hate Crimes Act”.  On February 2, 2010, Gary Glenn, president of the American Family Association of Michigan, and Michigan-based pastors Levon Yuille, Rene Ouellette, and James Combs filed a lawsuit against U.S. Attorney General Eric H. Holder, Jr., challenging its constitutionality.

At issue is Section 249(a)(2) of the Act, which criminalizes so-called “bias” crimes motivated by a person’s “actual or perceived” “sexual orientation” or “gender identity.”  According to the Act, any conduct or act that “causes” [or counsels, commands, or induces a person to cause] “bodily injury” to a person because of that person’s “actual or perceived . . . sexual orientation [or] gender identity” is proscribed by this criminal statute and subjects the perpetrator to ten years in prison.

Section 249(a)(2) states:

(2) Offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability. (A) In general. Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person [shall be imprisoned, fined, or both].

A closer look at the “Definitions” section of the Act reveals that “the term ‘bodily injury’ does not exclude “emotional or psychological harm.” And for purposes of the Act, the term “bodily injury” means: “(A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness; (D) impairment of the function of a bodily member, organ, or mental faculty; or (E) any other injury to the body, no matter how temporary.

Thus, if person (A) “causes” person (B) “emotional” or “psychological” harm that is accompanied by some physical pain or illness, “no matter how temporary,” such as a stomachache or a headache, on account of person (B)’s “actual or perceived . . . sexual orientation [or] gender identity,” person (A) is punishable as a felon under the Act. Or, if person (A) “causes” person (B) to commit suicide on account of person (B)’s “actual or perceived . . . sexual orientation [or] gender identity,” person (A) is punishable as a felon under the Act. There is nothing “hypothetical” about these examples; they are permitted by the plain language of the Act.

As Christians, Glenn and pastors Yuille, Ouellette, and Combs are called to spread God’s Word, including God’s Word regarding homosexuality, which they do as an integral part of their public ministry. Indeed, according to the Bible, homosexual acts are acts of grave depravity that are intrinsically disordered. Consequently, they have an obligation to state clearly the immoral nature of homosexuality so as to safeguard public morality and, above all, to avoid exposing young people to erroneous ideas about sexuality and marriage.

Accordingly, as alleged in the complaint, Glenn and pastors Yuille, Ouellette, and Combs have “willfully” engaged in and will continue to “willfully” engage in expressive conduct—conduct that supporters of the Act describe as violent “hate” speech and “hateful words”—that is proscribed by the language of the Act because the Act does not limit its reach to physical acts of violence, but expressly includes within its reach any conduct, including religious exercise, speech, expression, and association, that causes “bodily injury,” as that term is broadly defined by the Act.

In fact, the percentage of “hate crimes” committed in 2007 and in 2008 that were actual crimes of physical violence “motivated by bias based upon sexual orientation” was a mere fraction of 1%. Nationally, that amounts to approximately 240 such crimes per year, and it is likely that those numbers are inflated. Consequently, Section 249(a)(2), “is more about . . . marginalizing Biblical teachings against sexual immorality than it is about protecting people from acts of violence.”

As noted by the brief in the Sixth Circuit written by AFLC Co-Founder and Senior Counsel Robert Muise: “This statute is all about elevating certain persons (homosexuals) to a protected class under federal law based on nothing more than their choice to have sex with persons of the same gender, while marginalizing strong religious opposition to this immoral choice.”

On April 15, 2010, the Attorney General filed a motion to dismiss the complaint.  And on September 7, 2010, the district court granted the Attorney General’s motion on standing and ripeness grounds, dismissing the complaint for lack of jurisdiction.

AFLC Co-Founder and Senior Counsel Robert Muise appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit.  On December 6, 2010, Muise filed his opening brief, and on February 4, 2011, he filed his rely brief.  You can read the briefs here and here.

Muise argued the case before a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit on January 11, 2012, and the decision was issued on August 8, 2012.

CASE UPDATE (August 8, 2012): Sixth Circuit ruled that the plaintiffs lacked standing to challenge the law and dismissed the case. Read the ruling here.

CASE UPDATE (October 31, 2012): AFLC filed a petition for a writ of certiorari in the United States Supreme Court, asking the Court to review the Sixth Circuit decision on standing issue. Read the petition here.

CASE UPDATE (March 7, 2013): AFLC filed a reply brief in the U.S. Supreme Court in support of its petition for a writ of certiorari.  The brief is in response to the Solicitor General’s opposition to the petition, which was filed on February 4, 2013.

CASE UPDATE: The Supreme Court denied review.  Case closed.