Flamingly Unconstitutional: Is Catholicism A Hate Crime?
Apr. 29, 2016 (Mimesis Law) — The LAPD, together with campus police, is investigating an employee of a private Catholic university for committing a “hate crime” by telling three gay activist students that the Catholic Church doesn’t hold with more than two genders.
The basic facts are clear. On April 14, three Loyola Marymount University seniors were hanging up “LGBTQ+ Awareness Week” posters on campus. They were approached by an as-yet unnamed employee with LMU’s Alumni office, who broke off a conversation with LMU alumnus A.J. Gonzalez to make sure the students had permission to put up their signs.
According to her husband, who sent an email about the incident to the California Catholic Daily, the employee noticed that the posters endorsed “PanSexuality,” loosely defined as feeling attracted to any sex or gender. (Implicit, of course, is the suggestion that a large number of sexes and genders exist.)
When the employee asked the students about “PanSexuality,” one of the girls supposedly declared that she identifies as a lesbian and accused the employee of “not loving women.” In response, the employee said that the Church calls upon her to love everyone, then explained that she feels labels like “pansexual” are ultimately more harmful than helpful because they serve to confuse and promote lifestyles at odds with the teachings of the Church.
Gonzalez, the alumnus who witnessed the exchange, said that the employee remained unfailingly kind and polite, and did no more than accurately relay Catholic teachings to the students. According to the husband, the students suggested LMU put up signs “promoting the Catholic idea of relationships” alongside their own during next year’s LGBTQ+ Awareness Week. The girls and the employee then thanked each other, shook hands and departed.
(The students’ version of events, as reported in the campus newspaper, is substantially the same; the main difference is that the girls claim the employee came up with the idea of hanging up countervailing posters, which are now described as “anti-LGBTQ+.” There is some disagreement over the time.)
My goodness! Call the trauma cops!
By the next day, the campus newspaper had published its entirely one-sided article and the employee was suspended. One of the students involved, Cosette Carleo, told The College Fix that the employee’s words “den[ied] transgenderism.” In her world, this constitutes a hate crime.
Tragically, it seems LA cops are just as far removed from reality. According to the university’s vaguely-empowered “Bias Incident Response Team,” campus police are cooperating with the LAPD to investigate the incident.
Now, since LMU is a private institution, the employee’s suspension doesn’t have any First Amendment implications. But under what theory could she possibly have committed a hate crime?
California’s hate crime definition is set forth in section 422.55(a) of the Penal Code; it’s part of Title 11.6, Civil Rights. Essentially, a California hate crime is a sentencing enhancement. It applies to an act criminalized by a separate law if it was committed because of certain “actual or perceived characteristics” of the victim (such as gender, which expressly includes the victim’s “gender identity.”) Therefore, we need to find a California law that, under the circumstances of the LMU encounter, would criminalize espousing Catholic teachings.
Section 422.55(b) helps us out here: it stipulates that a violation of section 422.6, a criminal statute custom-created for Title 11.6, counts as a hate crime. 422.6(a) provides:
No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.
This is broadly reminiscent of 18 U.S.C. § 242 (“deprivation of rights under color of law,”), but much more expansive. Notably, you don’t have to be acting in an official, governmental capacity to run afoul of the statute. So can Ms. Carleo argue that the LMU employee “intimidated” or “oppressed” her out of exercising some right with her terrible Catholic hate speech?
Alas, no. There’s that “force or threat of force” clause, and section 422.6(c) expressly provides:
[…] However, no person may be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat.
The students and the cops never got a chance to run into the brick wall of the Constitution. Even California’s hate crime laws preclude prosecuting the employee for what she said.
Dear LAPD: please stop wasting taxpayer money. Dear LMU: please stop pandering to the lowest common denominator. Finally, dear students: please grow the hell up.