Announcer: Chapman University School of Law and Department of Religion present lorin Geitner on Issues of Law and Religion, in the News. Lorin Geitner

Between September and November of last year, five Amish men and women were attacked in Ohio. The attackers cut off the beards of the men, cut short the hair of the women, and took photographs of them in that state.

Who would want to attack Amish people, known not only for their distinctive attire, aversion to modern technology, close family and community ties, who are members of one of the few religions which have a uniform exemption from military service becase of their deep religious belief in pacifism? And why were they attacked in such a bizarre fashion?

That’s where the story gets even stranger. The attackers were fellow Amish. These Amish, followers of an Amish leader named Sam Mullet, perpetrated these attacks in revenge after a group of Amish bishops shunned Mullet.

As of June 14, 16 members of Mullet’s community are under Federal indictment in Cleveland, ohio. They are being tried under the 2009 Mathew Shepard and James Byrd Jr. Hate Crimes Prevention Act. This will be only the seventh time someone has been tried under this law, and the first time where the attackers and victims belong to the same religions.

Why did they choose to attack members of their own, pacifist, religion, and why did they do so in such a strange way? To get more insight into this case, let’s start with talking about the ….

The Amish are an off-shoot of the Mennonite religion, which was founded by Menno Simons in 1525 and which, in turn, grew out of the Anabaptist movement in the Netherlands. The Amish split from the Mennonites in Alsace and Switzerland in 1693, under the leadership of Jacob Amman, from whom they take their name. This division occurred because of issues involving the severity of shunning of errant members, the practice of ceremonial foot-washing and how frequently they should observe communion.

The Amish began emigrating to the New World in the early 1700s. In the late 1800s, some groups started incorporating such practices as using meeting-houses, Sunday schools, speaking English in their worship services and suchlike. The groups that defied these innovations came to be known as the “Old Order Amish”, and they are the one’s most people think of as “Amish”: they have not allowed the tractor to supplant the horse in field work, and oppose the use of electrical devises in their homes. There are, however, other Amish sects, the Amish Mennonites, the Conservative Amish Mennonites and the Unaffiliated Amish Mennonites, who vary in the extent to which they differ from the practices of the Old Order Amish.

As with the Mennonites and the Hutterites, the Amish ground their religiousity in certain practices more than in complex theology. These practices include adult baptism, separation from non-Amish society, and pacificism. They also believe that the Bible indicates that men should grow their beards and women their hair after marriage, which is why being shorn is deeply shameful to them – it is an attack on their status as Amish.

That then brings us to examining the relevant law …. :
Sound FX: Judge’s Gavel

…. What legal standards apply in this case?

The Mathew Shepard and James Byrd Jr. Hate Crimes Prevention Act, named after two victims of notorious hate crimes, expanded on prior law by adding sexual orientation, gender and disability to the categories of race religion and nationality as protected categories. It also expanded Federal jurisdiction to prosecute such crimes, from attacks which impacted activities which had Federal protection, to any attack against people within these categories, by invoking the commerce clause.

The application of this law in this case raises a couple issues. First: the defense has argued against the use of this law because both attackers and victims are members of the same minority religion. On the surface, this seems a reasonable objection. If, for example, an Orthodox Jew were to attack another Orthodox Jew, we might reasonably infer that the attacker did so not because of the victim’s religious status, but for personal reasons.

This issue has been resolved for now, however: in early June, U.S. District Court Judge Dan Polster ruled that the protected status of the victim, not the attacker, triggers use of this law. The Judge reasoned that, “While hate crimes are often committed by a member of one religious … group against another, history is replete with examples of internecine violence …. By the defendant’s logic, a violent assault by a Catholic on a Protestant or a Sunni Muslim on a Shiite Muslim … would not be prohibited by the statute.”

The second, subtler, but in some ways more troubling issue rests upon the choice of the commerce clause as the sole basis for Federal jurisdiction. For this rationale to attach, prosecutors must show that something used in the crime involved or affected interstate commerce. In this instance, Federal jurisdiction rests on the history of the shears used in these attacks: specifically that they were manufactured in New York and shipped for sale to Ohio.

This rationale raises a couple different problems. First, is this government overreach? Milwaukee attorney David Ziemer criticized the law in Wisconsin Law Review, and has observed that the, quote, “Interstate commerce (clause) has been interpreted broadly enough to make any garden-variety criminal activity a Federal offense”, unquote.

But another problem strikes me about this rationale. But, before I get to that, I should get this out of the way: