A Sixth Circuit ruling earlier this week is a victory for critics of federal hate crime legislation, as well as the defendants in the case, a group of Amish men and women who forcibly cut the hair and sheared the beards of their Amish victims. The defendants, members of the Bergholz Amish community, admitted to a series of attacks against other Amish with whom the defendants had longstanding feuds. In the Amish community, men wear long beards and women grow long hair as signs of piety and view voluntarily cutting one’s own hair as a sign of contrition. Cutting another person’s hair is a forceful condemnation of the victim. Prosecutors had argued that the defendants assaulted their victims because of their religious identity. The case is the first appellate case involving a religious hate crime brought under The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The statute prohibits “willfully caus[ing] bodily injury to any person . . . because of the actual or perceived . . . religion . . . of [that] person.”
In one of the instances at issue, Martin and Barbara Miller’s children and their children’s spouses cut Barbara’s hair and sheared Martin’s beard. The children insisted at trial that they attacked their parents to punish them for “bad parenting.” The kids thought Martin and Barbara were cruel, punitive, and spiteful as a father and mother. The kids did not argue that Martin and Barbara’s “bad parenting” justified assaulting them. The kids only argued that they didn’t attack their parents because their parents were Amish, or even because they believed that their parents’ bad parenting was a sign of them being lousy at being Amish. Rather, they attacked their parents because they believed that their parents were lousy at being parents.
Assaulting your parents in a way that is particularly hurtful to their religious values is a good way to make clear that you won’t be attending the next family picnic, but is it a good way to commit a federal hate crime?
The majority of the Sixth Circuit panel found that the jury in this case had been improperly instructed regarding the federal hate crime law. The majority describes the dispute over jury instructions at trial:
Before trial, the district court acknowledged that “[s]ome [defendants] suggested . . . the ‘but for’” instruction. It then rejected the request, reasoning that it would be “impossible” “to ask the jury to determine beyond a reasonable doubt the defendant[s] would not have done this but for the victim’s religion or perceived religion.
Since the trial, the U.S. Supreme Court issued its opinion in Burrage v. United States, clarifying how courts must treat criminal statutes using the term “because of” to require a showing of but-for causality. It is now clear that the trial judge erred. The Sixth Circuit this week found that the error was not harmless — that it does not appear beyond a reasonable doubt that the error did not contribute to the verdict obtained — and so remanded the case.
One member of the appellate panel, Judge Edmund Sargus, dissented. He examines Burrage, citing examples of where more than one but-for cause exists. Where there are concurrent but-for causes, the prosecution meets its burden where it can prove that at least one of the causes relates to the victim’s religion. Judge Sargus writes:
The pertinent but-for causality inquiry, then, is whether even if all of the other contributing or but-for factors remained, the prohibited conduct (the beard and hair cutting) would have occurred but for or in the absence of the victims’ Amish religion. In more concrete terms, would Defendants have cut the victims’ hair and beards if the victims were Catholic, atheist, or any other non-Amish faith?
The dissent is, of course, correct that more than one but-for cause can exist. However, the disagreement between the majority and dissent may lie in the role that the particular mode of the underlying assault crime occurred, rather than in a disagreement about the nature of causality. The dissent appears to frame the central inquiry as: Would the defendants here have chosen to cut the hair of their victims, as opposed to any other method of assault, if the victims were not Amish? The majority appears to frame the inquiry as: Would the defendants have assaulted the victims, by any method, if the victims were not Amish?
The answer to the dissent’s version is probably “no.” It is reasonable to conclude that the Amish assailants chose to attack their parents in this particular way because of the significance that hair holds within the Amish religion and the victims’ membership in the religion. Proof of that fact is, in the dissent’s view, enough to sustain a conviction under the hate crime law. It does not matter that the defendants might have found other specific methods of assaulting the victims if they weren’t religious.
Would the defendants have assaulted the victims if the victims were not Amish? The answer to this, the majority’s, version of the inquiry, is probably “yes.” (More properly: the defendants presented enough evidence at trial that a properly instructed jury could have found the answer could be “yes.”) The defendants in this case were adult children who had it out for their parents. They presented plenty of evidence that, regardless of their parents’ Amish identity, the defendants still might have attacked their parents.
Apparently, picking a particular method of punishment because of the victim’s religion does not a hate crime make. It’s not enough for religious symbols to be involved in the commission of the crime. It’s not enough for the way the crime was perpetrated to invoke religious beliefs or values. In order for someone to be guilty of a federal hate crime, the victim’s religion (or other protected status) must be the but-for cause of the defendant’s decision to attack the victim, and the jury must be so instructed.
If I wanted to torture my atheist dad, strapping him to a chair and forcing him to watch Joel Osteen sermons would be an effective way to do it. But unless I was torturing him because of his religious beliefs (or lack thereof), I would not be guilty of a hate crime. Force-feeding bacon to an underweight observant Jew is not a hate crime unless the defendant does it because the person is Jewish. Of course, it’s probably assault (tasty, tasty assault), but it’s no hate crime. If a Satanist nails a Catholic priest to a cross, and the Satanist can convince a jury that he crucified the priest because the priest cut him off in traffic, then it’s no hate crime. If Courtez McMillian can convince a jury that he and twenty other suspects kicked the crap out of Ralph Weems outside of a Waffle House in Tupelo, Mississippi simply because McMillian thought Weems was a jerk, it’s no hate crime. It’s just an assault against a white guy who had been warned that the restaurant wasn’t safe for white people because of racial unrest in the wake of the Michael Brown shooting. Also, it’s another good reason to avoid Waffle Houses.
A crime might not be a hate crime, but it still warrants punishment. Hate is morally blameworthy. The Sixth Circuit’s ruling this week manages to distinguish between being guilty of a federal offense and being an angry Amish kid who went too far.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at firstname.lastname@example.org