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

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Announcer: Chapman University School of Law and Department of Religion present …. Lorin Geitner on Issues of Law and Religion, in the News.
Lorin Geitner
When is a hate crime arguably not a hate crime? And how little, or how much, should it take to trigger Federal jurisdiction to make a hate crime a …. Federal matter?

Both those questions are raised by a criminal case currently taking place in Ohio, involving Amish who transported …. shears with malicious intent to ….. barber.

That is today’s …..

Sound F/X: Printing press
Lorin Geitner
: …. story – in the news.

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 ….

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Lorin Geitner: ….religion, of the Amish.

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 …. :
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…. 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:

Announcer: Any opinions expressed by this speaker are his alone, and do not necessarily reflect the opinions of Chapman University, it faculty or its administration.
Lorin Geitner:

The Mathew Shepard act gives this reason for making these crimes a federal matter: “violent crime motivated by bias … devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected.”

That makes entire sense to me: it may not be evident from this recording that I fall into one of these protected categories. I am deaf. I know for myself that if I read about fellow deaf people being attacked for using sign language in public, for instance, that would directly impact my feeling of security, and may inhibit my communicating with others in public. If you belong to any of those categories, would you not feel the same, if people sharing that same trait were being attacked for that trait?

Moreover, it strikes me that if premising this law on the commerce clause constitutes government overreach, it could result in under-reach as well, for aribitrary and sometimes even absurd reasons: What if these attacks had occurred in New York state, for instance? Are we to take it that these crimes wouldn’t merit the weight of Federal prosecution if the means used happened to occur in the same state where it was manufactured? Would the crime be any the less heinous if the attackers had used a club made from a tree branch taken from one of their own farms?

This is all the more troubling in light of the opinion rendered in the case of National Federal of Independent Business v. Sebelius by Justice Roberts, just a couple days ago as I am recording this podcast on June 30, 2012, in which Justice Roberts found that the Affordable Care Act’s claimed basis for Federal jurisdiction via the commerce clause rested on too broad a reading of that clause. If insurance companies, some of which operate nationwide, aren’t sufficient in themselves to trigger Federal jurisdiction under the commerce clause, then what does this suggest about use of that same clause on the basis of a pair of shears shipped from New York to Ohio?

Is the commerce clause the best rationale for claiming jurisdiction in such cases? Surely, if hate crimes are a matter of nationwide concern, there should be some rationale for Federal jurisdiction that makes more sense, which is not as subject to absurd and arbitrary applicability.

…. But, that’s just my opinion. Which side of this issue do you favor, and, more to the point, why? Let me know!

You may find the sources I’ve relied upon in this chat on our host webpage, along with a full transcript. We are planning to set up online bulletin boards for this podcast eventually, but, in the meantime, you can email me at, and I will share the most interesting observations on a later podcast of….

Announcer: Lorin Geitner on “Issues of Law and Religion, in the News”. This has been a presentation of Chapman University School of Law and Department of Religion. All opinions expressed by those of this speaker alone, and do not necessarily reflect the opinions of Chapman University, its faculty or its administration.
Lorin Geitner: For next time …. under what conditions do laws which limit religious practice deserve being given strict scrutiny, and when can such be given, pretty much, a free pass …. And how does a Mennonite youth driving a tractor on the highway in Iowa give rise to this question in the Supreme Court of Iowa?

Announcer: Thank you for listening. Your announcer has been Adam Laborde.

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