As the Utah Legislature considered whether to adopt hate-crimes legislation in the 1990s, opposition to protections for gay, lesbian, bisexual and transgender people led lawmakers to avoid naming groups covered by the bill.
The statute they ultimately passed has never resulted in a conviction that has held up.
Now, as the Legislature prepares to consider a fourth proposal in recent years aiming to give that law more teeth, legislators and advocates say that the same objections that hampered the original law a quarter century ago remain a sticking point.
“If you had a bill that did not include LGBT, I think it would have a much better chance of passing,” said Sen. Todd Weiler, R-Woods Cross. “I think all of the energy for and against the bill — well, not all of it, but 80 percent of the energy against the bill over the last two or three years — has been about expanding this to LGBT protection. And that’s why it’s been controversial.”
Weiler, who said he plans to support the measure this year after voting against it in 2016, speculates that continuing controversy is because the Legislature passed a law in 2015 to enact Utah’s first statewide nondiscrimination protections for the gay and transgender community while also providing safeguards for religious liberty.
That compromise legislation on housing and employment discrimination came after seven years of debate and received the blessing of both The Church of Jesus Christ of Latter-day Saints and the LGBT community — and it may be as far as the Legislature wants to go for now, Weiler said.
“What I’ve heard for the last two years is ‘Hey, we kind of struck this deal, this balance, this compromise in 2015 with anti-discrimination in housing, and we’re not going to come back every year and try to elevate LGBT rights,’” he said. “'Let’s let the dust settle on that compromise.'”
Equality Utah Executive Director Troy Williams agreed that the LGBT provision has been holding up passage of the bill. But he argued specifically that it’s the church’s position on those protections that’s acting as a roadblock.
“This is kind of the unspoken thing that’s up there on Capitol Hill,” he said. “It doesn’t make sense to me. This valley was founded in its current form by a church that was fleeing hate-crimes persecution. So if there’s any group of people that ought to be promoting sensible and inclusive hate-crime laws, it’s the Latter-day Saints.”
The church has long been perceived to be entangled in hate-crimes legislation. When his proposal on the issue failed in 2016, for example, former Sen. Steve Urquhart, R-St. George, said opposition from the church had “snuffed out” the bill. Church officials made no public comment on the issue in 2017 or 2018, but Sen. Daniel Thatcher’s bill died in both legislative sessions without a hearing, and he has argued that the faith’s neutrality was perceived by some lawmakers as objection.
“The church has never expressed opposition to me,” said Thatcher, R-West Valley City, as he gears up to propose a third hate-crimes proposal. “I believe that the opposition is perception, and the only way that clears up is with an affirmative statement.”
Marty Stephens, the church’s government-relations director, noted that the faith had not supported the hate-crimes bill in 2016 in an effort to preserve the balance established with the anti-discrimination law the year before. Since then, the church has stayed neutral, he said, as it is on “most of the legislation at the Capitol.”
“Perhaps the perception is that the church is more involved than that,” he said.
Stephens declined to offer a stance on the LGBT provisions or on this year’s bill, noting that its language has not yet been distributed publicly.
“It seems strange that there are those that don’t want us to be involved in the public arena when our views oppose theirs, but they do want us to be involved when they are hoping we’ll support their position," Stephens, a former Utah House speaker, said. “We’ve not taken a position on hate crimes and we’ll see what the bill is when it’s actually filed, and we’ll make a determination at that time if we want to do anything with the bill.”
‘A heck of a fight’
Salt Lake County District Attorney Sim Gill has often criticized the state’s current hate-crimes statute — under which only misdemeanor assaults can be enhanced as hate crimes — for lacking teeth and falling short of protecting several classes of people.
Frank Pignanelli, a lobbyist and former lawmaker who sponsored the bill in the 1990s, also expressed disappointment in the law, which he said hasn’t served its original intent.
“I’m frustrated because when I passed something, we thought it was going to be enough, and it seems like it’s never enough for the enforcement,” said Pignanelli, a licensed attorney. “And so it would be nice to come up with something that really does work in enforcement. And maybe we never will because of the First Amendment rights and things like that.”
Objections at the time of the original bill’s passage came both from “ultraconservative groups” and left-wing ones, Pignanelli said, which feared the measure would target speech rather than conduct. (That’s why today, Thatcher prefers the term “victim targeting” rather than hate crimes, arguing that you can’t prove hate but you can prove someone specifically chose a target.)
At that time, opponents also pushed back on some of the bill’s specific protections.
“It was a heck of a fight,” Pignanelli said. “We had to make some accommodations. For example, there was some pushback on sexual orientation.”
In a 1992 Deseret News editorial, the paper came out in favor of passing hate-crimes legislation, arguing that opposition to it was based on the “wrong reasons."
“Some foes decry the bills on the grounds that they would give ‘extra protection’ to homosexuals,” the editorial reads, arguing that although “homosexuality is vile," the move to eliminate the portions of the bill that protected members of the LGBT community was “as unjustifiable as it was cruel.”
The Salt Lake Tribune’s editorial board at the time said there were “legitimate reasons” to oppose the hate-crimes legislation. But it criticized the effort to remove protections for sexual orientation, calling that “the same kind of bigotry the bills were designed to deter.”
Today, LGBT people are twice as likely to be the targets of hate crimes as African-Americans, and the rate of hate crimes against them has surpassed that of crimes against Jews, according to a 2016 New York Times analysis of FBI data.
In Utah, a mob chased a group of gay people after the Utah Pride Festival last summer while yelling homophobic chants and slurs. And, in 2015, two gay men were attacked after exchanging a good-night hug in Salt Lake City. Their assailants appeared out of the darkness, calling them “f------," a gay slur, according to one of the victims.
With this history in mind, Williams said it’s important that legislation ensures the LGBT community is included in hate-crime protections.
“Our community, like other minority communities, is often targeted with violence by people who are driven and motivated by hate,” he said. “So, of course, we want to make sure that everybody is protected in the legislation.”
Thatcher’s bill, which has not yet been filed, would allow judges to increase the penalties for a charged crime if a defendant is convicted of targeting someone based on ancestry, disability, ethnicity, gender identity, national origin, race, religion or sexual orientation. Someone must first be convicted of a crime before additional penalties would apply.
Pignanelli said he supports efforts that would give prosecutors and law enforcement officials the tools they need to curb crimes targeting a person based on his or her characteristics — but he expressed frustration that the conversation is ongoing.
“If you would have told me in the early ’90s when I passed this bill that we’d still be fighting over this, I would have said, ‘No way, we’ll get it all resolved,’” he said. “I guess on the one hand it’s disappointing. But it’s also invigorating that people still want to fight the fight.”
‘A better chance this year’
Utah’s hate-crimes law gained national attention in November, when a man who was charged with beating Jose Lopez, a Latino, and his son outside their Salt Lake City tire shop while yelling about how he wanted to kill a Mexican did not face any enhancements for a hate crime.
Thatcher said the media attention highlighted deficiencies in the current law that could help make his case to the Legislature for amendments in the coming session and demonstrated that the issue of hate crimes extends beyond just the LGBT community.
He also speculated that the inauguration of a number of newly elected lawmakers coming into the Legislature may help his cause.
“We have a better chance this year than we’ve had in years past," he said. “Part of it is the high-profile Lopez case happening when it did. I think we’re going to have new people coming on board this time."
Weiler said the proposed changes to the hate-crimes bill have come a long way since Urquhart’s proposal in 2016 and will successfully punish people not for what they think but for whom they select as their victims. And while he sees good arguments on both sides, he feels a moral imperative to address the issue.
“There are some crimes that tend to send a chilling effect throughout a certain community, and I do think those crimes are different and maybe should be treated differently,” he said. “And that’s what I think is the most compelling argument in favor of passing beefed-up hate-crime legislation in Utah. That’s the one argument I can’t overcome.”
Incoming Senate President Stuart Adams, R-Layton, said he is unsure how the majority of lawmakers view Thatcher’s bill but raised concerns that the protections for groups are “too specific” and should be broadened.
“If you’re a BYU student that gets beat up because you love the Cougars, you are covered under Sen. Thatcher’s proposed bill,” he said. “But if you’re a University Utes student who gets beat up because you love the U., you’re not covered. The definition of who’s covered I think has been where most of the hang-up has been.”
An overwhelming majority of states have hate-crime laws, but they vary, to some degree. Most designate race, religion and national origin as motivations, but 13 states do not include sexual orientation and 33 do not include gender identity, according to The Center for Public Integrity.
Moving into the legislative session, which begins Jan. 28, Thatcher said that even if protections for the LGBT community doom his bill, he won’t be backing down. If you don’t enumerate groups, he said, you can’t offer them protection.
“In my opinion, it would be cruel and immoral to pass a law that does not apply to all Utahns."