The US Capitol Building, Washington, DC

Some constitutional scholars feel that this legislation is a violation of the US Constitution’s 14th Amendment. The 14th Amendment is the Equal Protection Clause. Although the 14th Amendment guarantees all citizens equal protection under the law, hate crimes legislation elevates some victims of violent crimes over others.

If a person commits violence against a homosexual and the crime is motivated by perceived bias against the victim’s sexual orientation, the perpetrator would be charged with a federal "hate crime", in addition to being charged under a state criminal statute. If the same violent crime were perpetrated on a child, the act would not classify as a "hate crime".

The bill is moving, despite the fact that there has been no dramatic rise in sexual-orientation "hate crimes" in the United States. A Focus on the Family Action, Hate Crimes Fact Sheet notes that:

• In 2007 (the most recent year reported), almost 51% of all "hate crimes" were motivated by racial bias. The next largest category is religion, at 18.4%. Sexual orientation is third at 16.6% and is fairly steady over the years both in percentage and raw numbers. There is simply no evidence of a dramatic rise in the number of reported sexual orientation "hate crimes".
• In 2007, a total of 7,426 incidents of "hate crimes" were reported in the U.S., including race, religion, gender and other categories. Of these, 1,265 (approximately 16.6 %) were classified as motivated by "sexual orientation" bias. Seventy-five percent of these fell into categories such as vandalism, name-calling, and pushing or shoving.
• In 2007, 855,856 cases of aggravated assault were reported. Of those, 242 were allegedly motivated by sexual orientation bias – approximately 3 out of every 10,000.

Many people feel that if this legislation becomes law it will evolve into "hate speech" penalties, as has already happened in Sweden, Canada and Great Britain. In these countries, "hate crimes" laws have been used to prosecute Christians speaking their disapproval of homosexual behavior, thus posing a serious threat to religious liberty and free speech. Even in the United States, Christians peacefully protesting a gay-pride rally were arrested and jailed in Philadelphia under a local "hate crimes" provision.

Some legal minds argue that if a minister teaches what the Bible says about the homosexual lifestyle, and someone hearing the message created a crime against a homosexual, the minister, as well as the person committing the crime, could be charged under the federal "aiding and abetting" statute (18 U.S.C § 2). This bill will likely lead to restricting what ministers might say in their spiritual teachings.

When the bill passed in the House of Representatives, all 26 Congressional New York State Democrats voted for the legislation, and 14 of them were cosponsors. The three Republican Congressmen, King, McHugh and Lee, voted against the bill.

The bill, H.R. 1913, awaits action in the Senate Judiciary Committee, where the Senate version of the bill, S909, has been introduced. Senator Ted Kennedy (D –Massachusetts) sponsored S909, and it has 41 cosponsors, which includes both of New York State’s US Senators, Schumer and Gillibrand. Because of Senator Kennedy’s poor health, there is a move to pass this legislation while he is still alive.