By A.C. Thompson and Patrick G. Lee, Propublica
Last year, lawmakers in South Carolina introduced legislation that would have increased the standard penalties for anyone who assaults, intimidates or threatens another individual if they did so because of the victimâ€™s â€œrace, religion, color, sex, age, national origin, or sexual orientation.â€
Drafted by Democratic legislators after white supremacist Dylann Roof murdered nine African-American parishioners at a church in Charleston, the bill never even came up for a vote. It was a familiar fate. In recent years, at least a half-dozen other hate crimes proposals have died in the South Carolina statehouse.
Much the same story played out in Indiana, where Republican state Sen. Susan Glick authored similar legislation in 2016; Glickâ€™s bill would have increased time behind bars for those convicted of harming or intimidating someone if the assailantâ€™s motivation was driven by the victimâ€™s gender identity, disability, sexual orientation, race, religion or immigration status
The legislation passed in the Senate by a vote of 34-16 but died in the House without so much as a hearing.
In the five states without hate-crime laws, there is little question that Christian activists have had an impact.
Since the 1980s, nearly every state in the union has enacted some sort of hate crimes law, as have Washington, D.C., and the federal government. While the laws vary from state to state, they generally bolster penalties for those who commit crimes â€” assault, vandalism, credible threats of physical violence, among others â€” because of some sort of bias against the victim.
South Carolina and Indiana are among a small handful of states that have failed to pass such laws. Wyoming, Arkansas and Georgia are the other hold-outs.
Much of the opposition to creating hate-crime legislation in these states has come from well-organized groups of Christian fundamentalists who on religious grounds disapprove of any sort of legal protections for gays, lesbians and transgender people. For these critics, the primary concern is legal language stepping up punishment for crimes motivated by contempt for the LGBT populace, measures they view as a small but dangerous part of a broader â€œhomosexual agenda.â€
One of the Christian groups is the Family Research Council. Contacted by ProPublica, the FRCâ€™s national office directed questions about hate crimes to Ryan McCann, an Indiana activist and lobbyist who works with the organization.
McCann views hate crimes laws as a sort of Trojan Horse: If Indiana adopts such a law, McCann said, LGBT advocates will use the precedent to argue for further legal safeguards, including anti-discrimination statutes, which he opposes.
Christian conservatives such as McCann have become potent activists against hate-crime legislation â€” lobbying, organizing their followers to petition statehouse lawmakers, and providing many of the key arguments against the laws.
â€œHomophobia and resistance to providing protections for LGBT people obviously play a role in the push back,â€ said Robin Maril, associate legal director for Human Rights Campaign, a national LGBT advocacy organization.
Statehouse experts are quick to point out that Christian conservatives arenâ€™t the only people who can be hostile to hate crimes laws.
Jeannine Bell, a law professor at Indiana Universityâ€™s Maurer School of Law, said some legislators in that state believe the laws will create an inequitable justice system that â€œserves particular groups and not others.â€ (Bell, who has studied the laws, disagrees: â€œThat is a misunderstanding. Everyone has a race.â€)
Lynne Bowman of Human Rights Campaign noted that, in general, Republican-controlled legislatures have not been supportive of hate crimes bills regardless of the language.
The range of concerns can include worries about limiting free speech or doubts that police and prosecutors can truly know a perpetratorâ€™s state of mind or motivations at any given moment. There have even been some expressions of misgiving among civil rights advocates that the legal hurdles created by hate-crime laws â€” establishing with certainty, for instance, someoneâ€™s specific motivations â€” can be counter-productive.
Decades ago, in a landmark 1993 ruling, the U.S. Supreme Court examined the fundamental fairness of hate-crime legislation. The court held that carefully crafted hate crimes laws do not infringe on the free exercise of speech, a finding that resolved the major constitutional questions on the matter. The case centered on a racially motivated incident in Wisconsin in which an African-American man assaulted a white teen, leaving the victim in a coma.
In the five states without hate-crime laws, however, there is little question that Christian activists have had an impact.
Bowman, a senior field director with Human Rights Campaign, said â€œhomophobiaâ€ gives lawmakers â€œan easy excuse to stand up against these bills.â€
For the past two decades, much of the resistance to hate crimes legislation has been orchestrated by a trio of intertwined conservative Christian groups.
The oldest and most prominent is Focus on the Family, the Colorado-based ministry founded by James Dobson. The sprawling organization, which produces a vast array of media on biblical topics and funds anti-abortion counseling centers for pregnant women, operated on a budget of nearly $90 million in 2013, the last year for which full tax records are available.
Focus on the Family portrays hate crimes laws as part of a plot to marginalize Christians and ban them â€œfrom the public arena.â€
Dobsonâ€™s ministry helped to spawn the Alliance Defending Freedom, a network of fundamentalist Christian lawyers who have argued that the laws infringe on religion while â€œcreating additional legal protections for those engaged in homosexual behavior that are not available to everyone else.â€
But it is the FRC, a third offshoot based in Washington, D.C., that has emerged as perhaps the most effective foe of hate crimes legislation.
When Congress took up the issue in 1999, an FRC leader told the Senate Judiciary Committee that revising the federal code to cover hate crimes could lead to the prosecution of â€œpeople who merely oppose homosexual activism.â€ Ten years later, as Congress debated the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the FRC decried the act as a â€œthought crimesâ€ bill.
Since then, the â€œthought crimeâ€ claim has become a common talking point in conservative Christian circles and the FRCâ€™s regional chapters have sought to halt hate crimes legislation at the state level.
Itâ€™s absolutely not true. But it sounds scary and it plays into peopleâ€™s fears.
In 2007, the FRC chapter in Arkansas urged lawmakers there to vote against hate crimes legislation authored by a veteran Democratic legislator. The bill failed. In a blog post, chapter leader Jerry Cox proudly touted the groupâ€™s accomplishments, saying it had spent years fighting â€œto make sure Arkansasâ€™ civil rights and hate-crimes laws are not used to promote a homosexual agenda.â€
McCann of the FRC is straightforwardly explicit about the groupâ€™s thinking.
â€œThe gay-rights groups and the folks on the left only want to get the terms â€˜sexual orientationâ€™ and â€˜gender identityâ€™ into the law,â€ said McCann. â€œUnfortunately, thatâ€™s all they care about â€” their agenda.â€
In Indiana, groups affiliated with the FRC have enjoyed great success in killing hate crimes bills over the past decade. The Republican Party currently enjoys a super-majority in the state, controlling both legislative chambers and the governorâ€™s office. But â€œeven under Democrat rule these hate crimes bills didnâ€™t get a hearing,â€ said McCann, who helps to lead the Indiana Family Institute, a group associated with the FRC and Focus on the Family.
Currently McCann is pushing legislators to stop five different hate crimes bills pending in the statehouse.
Though the FRC describes its mission as the advancement of â€œfaith, family and freedom in public policy,â€ critics take a very different view: The Southern Poverty Law Center has dubbed it an anti-gay â€œhate group.â€
The FRC has vigorously denied the characterization. The allegations are â€œan attempt to discredit FRCâ€™s work and cut us out of public policy debates and media coverage over homosexuality and same-sex â€˜marriage,â€™â€ the organization said in a 2010 statement.
The FRC has cultivated powerful allies, some of them in the White House. As Wired recently reported, both President Donald Trump and Vice President Mike Pence appeared at the organizationâ€™s â€œValues Voter Summit,â€ while a range of current or pending administration officials â€” Reince Priebus, Mike Pompeo, Tom Price, Jeff Sessions â€” have all spoken at FRC events. Ed Prince, the father of Betsy DeVos, provided millions of dollars in funding to the FRC in the groupâ€™s early days. DeVos, a Michigan billionaire, has been tapped by the Trump administration to serve as U.S. secretary of education.
While 45 states have enacted hate crimes laws, the statutes vary dramatically around the country. In 15 of those states, the laws do not cover gays and lesbians; in 28 they donâ€™t cover gender identity or transgender individuals.
In Georgia, state Sen. Vincent Fort, a Democrat, said he has sponsored at least five bills that have been defeated largely because they covered sexual orientation. â€œSome people have said, â€˜If you donâ€™t include gay people, it might pass,â€™â€ he recalled. Still, he insists heâ€™ll never support â€œany bill that excludes gay people. Iâ€™m not going to have anything to do with a hate crimes law that, in effect, is discriminatory. Wouldnâ€™t that be ironic?â€
Wendell Gilliard of South Carolina tells a similar tale. A Democrat from Charleston, Gilliard has introduced â€œfour or five hate crimes billsâ€ in the state House of Representatives â€” and all of them have come to nothing. The lawmaker, who is African-American, said heâ€™s been barraged with angry emails and phone calls about his bills â€” not about race but from people â€œquoting biblical verses about homosexuality.â€
Opponents of the bills under consideration in Indiana claim the legislation, if passed, could be used to prosecute preachers who portray homosexuality as a sin. â€œLetâ€™s pray that silencing speech is not the next step in the â€˜gayâ€™ agenda that the media embraces and pushes in the statehouse,â€ wrote Micah Clarke, an Indiana lobbyist and leader of an FRC chapter, in a newsletter sent to his groupâ€™s members.
Clarke declined to be interviewed.
â€œThere are gay-rights activists all over the country who are trying to silence those who donâ€™t agree with them,â€ said McCann, the Indiana lobbyist. As far as heâ€™s concerned, the bills provide special treatment to members of â€œfavored political classesâ€ and are likely to muzzle fundamentalist Christians.
â€œThose are â€˜alternative facts,â€™â€ said one clearly frustrated lawmaker, Greg Taylor, a Democrat from Indianapolis who has authored two hate crimes bills currently pending in the state Senate. â€œItâ€™s mind-boggling.â€
Robin Maril of Human Rights Campaign describes the rhetoric coming from her political foes in Indiana as â€œirresponsibleâ€ fear-mongering.
â€œItâ€™s absolutely not true. But it sounds scary and it plays into peopleâ€™s fears,â€ Maril told us. â€œNone of this legislation would ever impede an individualâ€™s ability to speak out. ... We are not policing ministersâ€™ ability to give sermons.â€
A.C. Thompson covers criminal justice issues for ProPublica. He has been a reporter for 12 years, mostly in the San Francisco Bay area.
Patrick Lee is a reporting fellow at ProPublica.