When an unwanted shave is a crime.  Photographer: Stan Honda/AFP/Getty Images
When an unwanted shave is a crime.  Photographer: Stan Honda/AFP/Getty Images

When Amish breakaway leader Samuel Mullet and eight followers were charged with the “hate crime” of cutting co-religionists’ beards, it seemed to me that the otherwise conscientious U.S. attorney, moved by the Nazi-esque spectacle, had gone too far. Now the U.S. Court of Appeals for the Sixth Circuit has struck down the conviction for relying on too broad a reading of the federal hate-crimes law. The decision is right on the law -- and the U.S. attorney should not refile.

The basis for overturning the convictions was the trial judge’s charge to the jury. The law says that to count as a federal hate crime, an attack must occur “because of” the victims’ religious beliefs. The trial judge told the jury that, to meet this definition, it was enough for the prosecutors to show that the victims’ religion was a “significant factor” in the attacks. The appeals court, by a vote of 2-1, said no: Religion must be the predominant factor, not just one among many. The opinion was written by Judge Jeffrey Sutton, a highly respected, legally scrupulous conservative nominated to the bench by George W. Bush.

The ordinary meaning of the words “because of” doesn’t determine the issue in this case. Depending on context, the words could mean that something is one factor, or that it is the predominant factor -- what lawyers in our un-philosophical way like to call a “but-for” cause.

Sutton wrote that Supreme Court precedent required him to read “because of” to mean, in essence, that the attack must have been predominantly caused by the victim’s religion. Given that criminal law should be interpreted as narrowly as possible, this approach is legally reasonable.

But the real reason the Sixth Circuit was right lies in the policy that the hate-crimes law is meant to effectuate -- and the real-world consequences of its application. The law was aimed at punishing true hate crimes, classically committed by members of one group against another. It was never meant to criminalize all attacks among members of a group who define themselves on the basis of religion.

Yet as applied by the trial judge, the law would have covered almost any case where co-religionists attacked one another as part of an intra-religious dispute. In such cases, the religion of the victim is certainly a significant factor. Mullet and his followers were trying to sanction their Amish victims in part for violating what they believed to be Amish norms. And the symbolic nature of the attacks made sense only if the victims were Amish.

Yet in cases of intra-religious controversy, the victim’s religion is almost never the main cause of the attack. Mullet’s victims weren’t singled out primarily because they were Amish -- a classic hate crime -- but because there was a dispute among various Amish people about internal ideological and political matters.

If the hate-crimes law is used to punish intra-religious crimes, it could change from a shield to protect minorities into a weapon against them. Religious groups whose beliefs pervade their whole world view see everyone in terms of religion. Any assault they commit might be considered a federal crime.

The defendants in the Amish case asked the appellate court to rule that the law never applies to intra-religious disputes. This might have made sense as a matter of policy, but not as a legal matter in the case at hand. As the law is written, it covers hate crimes by co-religionists. The court instead pragmatically restricted the law’s reach to cases where a religious motive predominates.

In practice, however, the result will be similar, because a co-religionist, even one in the grips of an internal religious dispute, rarely attacks his fellow mainly because of his religion. Other motives -- of power, authority and hierarchy -- usually move him as well.

And if a religious believer were to target a co-religionist solely because of his faith, the law could still reasonably be applied. It is possible in theory to be a Jewish anti-Semite or an Amish hater of your fellow Amish. Someone who acts on such biases is morally no different from an outside hater.

Now it is up to U.S. Attorney Steven Dettelbach to decide whether to try Mullet and his co-defendants under the new rule. There are three good reasons not to. First, the trial has already satisfied moral outrage; the world now knows that beard-cutting will be treated as an serious offense in the U.S.

Second, under the new standard, the defendants might well be acquitted. The court’s panel noted there was “considerable evidence” that disagreements based on family and personality had “sparked the attacks.” A trial followed by a well-publicized acquittal might reverse the moral message sent by the initial prosecution.

Third and most important, not refiling would confirm that the appeals court read the subtle facts correctly. Beard-cutting does look like a hate crime at first glance. But the social meaning of the assaults in this case was more complex. Ordinary assault law is more than sufficient to punish the offenders -- and to protect marginal religious minorities from federal intervention in their affairs.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Mary Duenwald at mduenwald@bloomberg.net.