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As Howard Friedman notes on his Religion Clause blog, a group of pastors and the "American Family Association of Michigan" filed suit in federal court on Tuesday challenging the constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, which criminalizes violence motivated by a victim's "actual or perceived" sexual orientation.  In particular, the complaint alleges that the law "elevates those engaged in certain deviant sexual behaviors to a special, protected class of persons under federal law."  In a nice Orwellian flourish, the plaintiffs go on to suggest that the the law makes gays "more equal than others" before the law.  This is an old and largely failed argument (see Romer v. Evans) that, in this incarnation, attempts to cast religious believers as the real victims of oppression--again, in the plaintiffs' words: "[T]he homosexual agenda seeks[s] to vilify and criminalize deeply held religious beliefs"--but it is made particularly ironic in this case because the specific provision at issue (18 USC s 249(a)(2)) actually includes a victim's "actual or perceived religion" on the list of prohibited motivations.  Now, I have my own discomforts with "hate crime" legislation, which I can get into more later, but am I the only one who finds this latest challenge confusing (to put it charitably)?  Can the same statutory provision both "elevate" and "criminalize" religious beliefs?

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