Glenn v. Holder

Decision Date07 September 2010
Docket NumberCase No. 10-10429-BC
Citation738 F.Supp.2d 718
PartiesGary GLENN, Levon Yuille, Rene Ouellette, James Combs, Plaintiffs, v. Eric H. HOLDER, Jr., Defendant.
CourtU.S. District Court — Eastern District of Michigan

Robert J. Muise, Ann Arbor, MI, for Plaintiffs.

Judith E. Levy, U.S. Attorney's Office, Detroit, MI, for Defendant.


THOMAS L. LUDINGTON, District Judge.

On February 2, 2010, Plaintiffs Gary Glenn, Levon Yuille, René Ouellette, and James Combs filed a complaint [Dkt. # 1] against U.S. Attorney General Eric H. Holder, Jr., challenging the constitutionality of the criminal provisions of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act ("Hate Crimes Act"), 18 U.S.C. § 249(a)(2). The Hate Crimes Act generally provides criminal penalties for intentionally causing bodily injury to another person when the injurywas motivated by the actual or perceived religion, race, color, national origin, gender, sexual orientation, gender identity, or disability of the victim.

According to the complaint, Plaintiff Gary Glenn is a resident of the State of Michigan and the President of the American Family Association of Michigan, an organization that promotes the "Judeo-Christian ethic and ... all things necessary to promote ... the traditional and natural family in our society." Compl. ¶ 15. Plaintiff Levon Yuille is also a resident of the State of Michigan, a pastor of The Bible Church in Ypsilanti, Michigan, the National Director of the National Black ProLife Congress, and the host of a radio talk show known as "Joshua's Trail." Id. ¶ 18. Plaintiff René Ouellette is a resident of Michigan and the pastor of First Baptist Church of Bridgeport, Michigan. Id. ¶ 21. Plaintiff James Combs is the "lead" pastor of Faith Church, The Point Church, The Rock Church, and The River Church, all of which are located in Michigan. Id. ¶ 23. Each of the Plaintiffs are identified as Christian, though they have furnished little information about their theological beliefs and the extent to which those beliefs are commonly held, with two exceptions. Each of the Plaintiffs believe that violence is not to be condoned. Id. ¶ 41. They also strongly believe that homosexuality is biblically prohibited by provisions in both the Old and New Testaments and that the "complementarity of the sexes reiterates a truth that is evident to right reason and recognized as such by all the major cultures and religions of the world." Id. ¶ 34; see also id. ¶¶ 28-40. Important to their lawsuit, they contend that Christians generally, and that they, as a part of their public ministry specifically, must be "clear and emphatic [in] their opposition to homosexuality, homosexual activism, and the homosexual agenda." Id. ¶ 37.

Plaintiffs allege that the Hate Crimes Act violates their First Amendment rights to express their opposition to homosexuals and homosexual behavior in several ways. First, they contend that the Act is vague when it does not explain what it means for an offender to cause bodily injury "because of" the sexual orientation or gender identity of the victim. Second, they believe that the statute is overbroad in that it criminalizes their constitutional right to express their opinion that homosexual orientation is morally wrong. For similar reasons, they also contend that the Act will chill like-minded people from free association, a right also protected by the First Amendment. Plaintiffs also allege that the Act violates their rights under the Free Exercise Clause of the First Amendment because it penalizes their religious beliefs about homosexuals and their behavior.

While conceding that the Act itself might provide them protection, to the extent that it punishes bodily injury inflicted by individuals based upon an actual or perceived religious belief of the victim, Plaintiffs allege that the Act violates their Equal Protection rights because it creates an irrational distinction between different religious viewpoints on homosexuality. They contend that the Act disfavors individuals with their belief that homosexual behavior is wrong, in order to protect those who believe it should be tolerated. Finally, Plaintiffs allege that the Hate Crimes Act is unconstitutional because it is not justifiable under the Commerce Clause.

Plaintiffs seek a pre-enforcement declaration that § 249(a)(2) of the Hate Crimes Act violates their above-identified constitutional rights and that Congress lacked authority to enact the Act. They also seek an injunction enjoining the enforcement of § 249(a)(2) of the Act, and an award of attorney fees and costs pursuant to theEqual Access to Justice Act, 28 U.S.C. § 2412.

Now before the Court is the U.S. Attorney General's motion to dismiss [Dkt. # 9], filed on April 15, 2010. Plaintiffs filed a response [Dkt. # 13] on May 5, 2010; the Attorney General filed a reply [Dkt. # 17] on May 20, 2010; and Plaintiffs filed a sur-reply [Dkt. # 21] on June 8, 2010. A hearing was held on July 14, 2010. The Attorney General argues that Plaintiffs do not have standing and that their claims are not ripe for review by a court, and that the Hate Crimes Act does not violate the First Amendment, the Equal Protection Clause, the Tenth Amendment, or the Commerce Clause.

As will be further explained below, the Attorney General's motion to dismiss will be granted because Plaintiffs lack standing and their claims are not ripe when they have not alleged that they intend to "willfully cause[ ] bodily injury to any person," or even to "attempt[ ] to cause bodily injury to any person, because of ... the actual or perceived ... sexual orientation [or] gender identity ... of any person," in violation of the Hate Crimes Act. See § 249(a)(2). In addition, it is entirely speculative that Plaintiffs' conduct would be prosecuted under the Act.


The Hate Crimes Act was enacted by Congress and signed into law by the President in October 2009. Pub. L. No. 111-84, Div. E, 123 Stat. 2190 (Oct. 28, 2009). The Act provides criminal penalties for "[w]hoever ... willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person," 18 U.S.C. § 249(a)(2)(A), or "because of the actual or perceived race, color, religion, or national origin of any person," id. § 249(a)(1). With respect to offenses involving "religion, national origin, gender, sexual orientation, gender identity, or disability," the Act requires evidence of an injury's connection to interstate commerce as an element of the offense. Id. § 249(a)(2)(B). For example, the connection could be that the injury "occurs during the course of, or as a result of, the travel of the defendant or the victim across a State line or national border." Id. § 249(a)(2)(B)(i)(I).1

The term "bodily injury" is defined as "a cut, abrasion, bruise, burn, or disfigurement; ... physical pain; ... illness; ... impairment of the function of a bodily member, organ, or mental faculty; or ... any other injury to the body, no matter how temporary." Id. § 249(c)(1) (citing 18 U.S.C. § 1365(h)(4)). The Act clarifiesthat "bodily injury" "does not include solely emotional or psychological harm to the victim." Id. § 249(c)(1). Along with, yet separate from the Hate Crimes Act, Congress also enacted "Rules of Construction," one of which provides that the Act "applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability of a victim." Pub.L. No. 111-84, Div. E, Sec. 4710(1)-(6), 123 Stat. 2841 (Oct. 28, 2009) (emphasis added).2 While Plaintiffs question the materiality of the Rules of Construction, they also acknowledge that they "were duly enacted by Congress and are as much a part of the statute as any other language in the Act." See [Dkt. # 21, p. 5].

Generally, penalties include up to ten years of imprisonment, a fine, or both. Id. §§ 249(a)(2)(A)(i), 249(a)(1)(A). Imprisonment may be up to life when "death results from the offense," id. §§ 249(a)(2)(A)(ii)(I), 249(a)(1)(B)(i), or if "the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill," id. §§ 249(a)(2)(A)(ii)(II), 249(a)(1)(B)(ii).

The Act also contains a "certification requirement," which means that, before a prosecution may occur, the U.S. Attorney General, or a designee, must certify in writing one of the following:

(A) the State does not have jurisdiction;(B) the State has requested that the Federal Government assume jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or
(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

Id. § 249(b)(1).

Congress made several statutory findings when it enacted the Act, including the following:

(1) The incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim poses a serious national problem.
(2) Such violence disrupts the tranquility and safety of communities and is deeply divisive.
(3) State and local authorities are now and will continue to be responsible for prosecuting the overwhelming majority of violent crimes in the United States, including violent crimes motivated by bias. These authorities can carry out their responsibilities more effectively with greater Federal assistance.
(4) Existing Federal law is inadequate to address this problem.
(5) A prominent characteristic of a violent crime motivated by bias is that

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