Had the Utah Legislature not balked so vehemently at any hate-crime legislation that included protections for gays and lesbians, the state might now have better tools to prosecute those committing hate crimes against members and property of the LDS Church.
That's the irony emerging from the ugly aftermath of California's Proposition 8 vote banning gay marriage in that state. Because members of The Church of Jesus Christ of Latter-day Saints, at the urging of their ecclesiastical leaders, played such a prominent role with their money and time in the passing of the proposition, their church is now a target.
Church services have been disrupted by protesters, members have been blocked from entering churches, glue has been poured into the locks of church buildings, glass doors of churches have been shattered by BB guns, LDS temples have received packages containing mysterious white powder that proved harmless, and church buildings and signs have been spray-painted.
But the perpetrators, if caught and charged in Utah, don't face penalty enhancements for targeting a specific group for harassment. That is because a majority of Utah legislators, not wanting to appear to be coddling people who are gay, refused to include them in hate-crime legislation as a special class.
The best that LDS victims of hate crimes can hope for in Utah is that their suffering be considered an aggravating factor when judges sentence a perpetrator and parole boards determine how much of the guilty party's sentence must be served before granting parole.
Legislators could have included a penalty enhancement for a hate crime. If, for example, a crime normally would be charged as a third-degree felony, it could be bumped to a second-degree felony if committed against a protected class.
Indeed, that was the model of hate-crimes legislation that proponents tried for a decade to pass. But in order to constitutionally justify a penalty enhancement, which most states include in such laws, protected groups must be defined.
That was always the stumbling block on Capitol Hill. For a hate-crime enhancement, it had to be shown the victim was targeted because of race, religion, ethnicity, gender, age, disability or -- the bill killer -- sexual preference.
Rep. David Litvak, D-Salt Lake City, sponsored the bill that finally passed in 2007. He acknowledges it is not as tough as it could have been, but the compromise was necessary to get it through the Legislature. There are no protected groups defined in the marshmallow law and prosecutors must show the crime had a negative effect on a whole class of people before it can be considered an aggravating factor.
Many of the legislators who fought against the hate-crimes bills expressed concern about discrimination against Mormons.
A few years ago, Sen. Margaret Dayton, R-Provo, led the move to force a legislative audit of the University of Utah's medical school because of speculation that male Mormon applicants were being discriminated against. So now, because of the anti-gay sentiments expressed at the Mormon-majority Legislature, when LDS Church members actually are singled out for harassment or discrimination, their tormentors get a pass, pretty much, even if their actions can be proven to be hate crimes.
LDS Church leaders did not oppose including sexual orientation in the earlier versions of the bill. When the church issued a statement to that effect, Gayle Ruzicka, head of the right-wing Eagle Forum, said the church was implicitly opposing the legislation because its statement did not say it supported the language.
That prompted a church spokesman to say that the Eagle Forum does not speak for the LDS Church.