08/27/2014 04:01 pm ET Updated Oct 27, 2014

Is Beard Cutting a Hate Crime?

Mark Wilson via Getty Images

Nearly two years ago, in September 2012, a federal jury in Cleveland answered "yes" to that question after three weeks of deliberation. The jury convicted Sam Mullet Sr., bishop of a renegade Amish clan, and 15 of his followers for forcibly cutting off the beards of Amish men in nighttime home invasions in 2011. The jury struggled with two big questions: Was cutting off a beard temporary disfigurement? And were the attacks motivated by religion?

Federal prosecutors sought to convict the defendants of hate crimes under the 2009 Shepard-Byrd Hate Crimes Prevention Act. This statute defines a hate crime as bodily injury inflicted because of a victim's actual or perceived religion, gender, sexual orientation, race, national origin, or disability.

Shepard-Byrd stipulates that disfigurement, however temporary, is one type of bodily injury. According to its foreman, the jury focused on two words: disfigurement and temporary. One juror argued that cutting a beard does not disfigure the body: "Hair is not my body. Skin is my body, but hair is not." Eventually, the jury agreed that shaving a beard did constitute temporary disfigurement. Had the word temporary been missing in the statute, the case for hate crimes may have crumbled or at least reduced the number of convictions. Some of the charges would have still applied because bodily injuries -- burns, bruises, cuts, and bleeding -- were apparent on some of the Amish victims.

Secondly, the jury considered whether religion drove the attackers. Initially, the foreman said, "we were focused on the attackers' religion while we should have zoomed in on the victims' religion." What mattered for the Shepard-Byrd Act was not the religion of the perpetrators, but whether their assaults were motivated by their disdain for the victims' religion. In the end, the jurors agreed that the assailants cut beards because they deplored how the victims practiced their Amish religion.

In late February 2013, the defendants filed an appeal to the United States Court of Appeals for the Sixth Circuit in Cincinnati. Attorneys from each side made oral arguments in late June 2014.

Several significant legal questions hovered over this case. First, did federal prosecutors wield unconstitutional powers in their application of the 2009 hate crimes statute to obtain the convictions? In other words, is the Shepard-Byrd Act itself unconstitutional? The constitutionality question hinges on whether the US Congress violated the Constitution when it tied some elements of the 2009 hate crimes law to interstate commerce in order to grant federal jurisdiction over a crime.

Moreover, was the evidence of interstate commerce (use of vehicles and travel on interstate highways; out-of-state manufacturing of the shears and clippers used in the cuttings; and use of the US Postal Service) adequate to merit federal jurisdiction of the case?

Did Congress intend for the hate crimes statute to cover religiously motivated violence within a religious group? Does beard cutting, as temporary disfigurement, qualify as a form of bodily injury for a hate crime victim?

And, finally, does the 2009 Shepard-Byrd Act infringe on the First Amendment rights of the defendants to freely practice their religion? The beard cutters were prosecuted because the First Amendment does not protect religiously motivated violence. Shepard-Byrd criminalizes violent conduct; it does not criminalize beliefs or thoughts. The First Amendment safeguards beliefs and speech, however deplorable they may be.

On August 27, 2014, the US Court of Appeals for the Sixth Circuit, in a 2-1 decision, overturned the hate crimes convictions on a technicality related to the lower court's instructions to the jury. The appellate court based its decision on a case (Burrage v. United States, 2014) that was decided after the Bergholz trial.

There were several possible appellate court outcomes: the court might have (1) upheld the convictions of the jury, (2) required a new trial because of prejudice or procedural errors in the original one, or (3) determined that the hate crimes statute is unconstitutional for all hate crimes or unconstitutional as it was applied to the beard-cutting case. Interestingly, the appellate court did not challenge the constitutionality of the Shepard-Byrd Hate Crimes Prevention Act.

The next steps might involve new trials or an appeal by federal prosecutors to the full bench of judges in the Sixth Circuit Court (en banc) or to the US Supreme Court. The other non-hate crime convictions pertaining to the defendants were not overturned.

Although the Supreme Court hears very few petitions, this case may be of interest due to the constitutional issues at stake and possible inconsistencies between federal circuit courts' interpretations of the Shepard-Byrd Act.

Meanwhile, the question of whether cutting a beard is a hate crime remains uncertain.


Donald B. Kraybill is senior fellow in the Young Center and distinguished professor at Elizabethtown College (PA). A longtime scholar of Amish life, he is the author of the new book Renegade Amish: Beard Cutting, Hate Crimes, and the Trial of the Bergholz Barbers and coauthor of The Amish, a definitive study of the Amish in America.