Conservative claims about being victimized by the so-called homosexual agendamay reap thousands of dollars in fundraising pitches, but as the Proposition 8 trial demonstrated, the arguments are rooted in fear, not fact, and simply don’t stand up in court. Yesterday, Judge Thomas L. Ludington of the Eastern District of Michigan — a Bush appointee — granted Attorney General Eric Holder’s “motion to dismiss the challenge” to the Hate Crimes law, throwing out the claim that the law “violates their First Amendment rights to express their opposition to homosexuals and homosexual behavior in several ways.”
Ludington ruled that the plaintiffs lacked jurisdiction and argued that “Plaintiffs’ fear of prosecution is speculative; they do not allege that they have violated the Hate Crimes Act in the past, nor that they intend to violate it in the future“:
The Attorney General once again emphasizes, however, that the Act only prohibits violent conduct, not speech, and that Plaintiffs do not allege that they intend to engage in any such violent conduct….The Attorney General’s arguments are persuasive. Plaintiffs do not have standing to pursue their claims when they do not allege an“injury in fact,” that is both “concrete and particularized,” and “actual or imminent.” In other words, they have not demonstrated that there is an existing “case or controversy” within the meaning of Article III of the U.S. Constitution. Most importantly, Plaintiffs do not allege that they intend to “willfully cause” any “bodily injury.” This is true even if one accepts Plaintiffs’ proposed definition of “bodily injury,” to include simple headaches and stomachaches, because Plaintiffs do not allege that they intend to “willfully cause” headaches and stomachaches.
Moreover, that fact, in combination with the Attorney General’s denial that the Hate Crimes Act applies to Plaintiffs’ conduct (a conclusion that is supported by the text of the statute, the Rules of Construction, and the legislative history), supports the conclusion that Plaintiffs have not demonstrated that “there exists a credible threat of prosecution” under the Act. Babbitt, 442 U.S. at 298. Plaintiffs’ fear of prosecution is speculative; they do not allege that they have violated the Hate Crimes Act in the past, nor that they intend to violate it in the future. [...]
Plaintiffs present hypothetical situations in which they believe that they will be prosecuted or subject to investigation under the Hate Crimes Act. They have not demonstrated that such situations are of “substantial and of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. Plaintiffs allege their own personal beliefs and assertions of third party members of the general public to suggest that they would be subject to prosecution and investigation under the Act, rather than any concrete, “reasonably founded in fact,” threat of prosecution or investigation.
The Attorney General acknowledged that prosecutors may use “evidence of speech,
expression, or associations” to prove one’s motive, but stressed that a violent act would first have to be committed. Lawyers for the plaintiffs had “previously said that if they didn’t prevail, they planned to appeal the decision all the way to the Supreme Court.”