Sunday, May 24, 2009

Cutting Through the Rhetoric Regarding Hate Crimes Legislation

The House of Representatives recently passed H.R. 1913 -- "The Local Law Enforcement Hate Crimes Prevention Act of 2009." Now, this bill and a similar measure ("The Matthew Shepard Hate Crimes Prevention Act") are currently pending in the Senate. The proposed legislation has triggered partisan support and opposition. The House measure, for example, passed by a vote of 249-175. Only 18 Republicans supported it.

The American Thinker has published an essay that condemns the proposed measures. The article, written by John Griffing, makes many familiar arguments, including that the proposed law would violate freedom of expression. Griffing's article, however, contains many distortions that greatly undermine his analysis.

Freedom of Speech
Griffing argues that, if passed, the hate crimes measure would violate the First Amendment, and he likens the proposed law to the notorious Sedition Act of 1789, which made it a crime to "write, print, utter or publish" material criticizing the President, Congress or the United States. The proposed legislation, however, provides no support for Griffing's claim.

The measure that recently passed in the House, for example, would create federal criminal liability when a person "willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person" due to the "actual or perceived race, color, religion, or national origin of any person" or "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person." The proposed statute also contains language stating that its terms shall not "be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution."

As the Supreme Court held in the 1993 Wisconsin v. Mitchell decision, laws that prohibit acts of bias-motivated violence generally do not violate the First Amendment. The Court's unanimous opinion, authored by staunch conservative Chief Justice Rehnquist, concluded that Wisconsin's hate crimes statute did not impermissibly punish speech or thought because the measure reflected the state's finding that bias-motivated crimes "inflict greater individual and societal harm" than ordinary violent crimes. The Court also analogized the hate crimes statute to federal employment discrimination laws, which had already survived a First Amendment challenge.

The Court's second observation is worthy of elaboration. Consider the following hypothetical scenarios. One year, a company refuses to give any employee a pay raise due to financial constraints. Unless the decision violates an employee contractual provision, then it likely constitutes an unassailable business decision.

Suppose, instead, that the same company refuses to give any employee a pay raise because only white workers passed a performance test that the company used to determine who would qualify for the salary increase. Without additional information, most people would not believe that the second scenario constitutes a legitimate business decision shielded by the First Amendment. Instead, as conservatives have passionately argued with respect to Ricci v. DeStefano, the racially motivated employment decision might violate federal antidiscrimination laws. Racial motivation, however, is the only factor that separates the two hypothetical scenarios and that transforms an ordinary business decision into a violation of federal law. If conservatives truly believe laws that punish behavior motivated by discriminatory ideas or thoughts violate the Constitution, then they should withdraw their objections to Ricci and to affirmative action.

The government's interest in preventing the prohibited conduct seems even more compelling in the hate crimes context than in the employment situation. Stripped of biased motivation, the underlying decision in the employment setting is generally lawful. The removal of bias in the hate crimes scenario, however, does not render the underlying behavior legitimate. Indiscriminate acts of arson, gun violence, and fire bombings, for example, usually lack a legitimate purpose and are likely illegal.

This distinction also reveals the fundamental flaw in Griffing's effort to analogize hate crimes legislation to the Sedition Act of 1789. The Federalist Party passed the Sedition Act in order to punish Democratic-Republicans and political commentators who criticized the Adams administration in writings and speeches. Political speech is a core interest of the First Amendment.

The First Amendment, however, offers no protection for a person who tosses a bomb into a black church or a synagogue -- even if the perpetrator acts upon strongly held political beliefs. Similarly, the First Amendment would not shield an individual from prosecution if he or she, acting on political ideology, commandeers an airplane and crashes it into a national monument. Thus, if the proposed measure ultimately becomes law, the Fred Phelps congregation could still march across the country spreading the "good news" that "God hates fags." Church members, however, could not seek solace in the First Amendment if their own hatred of "fags" led them to inflict bodily injury upon GLBT people.

Special Protection
Finally, Gillings makes the factually inaccurate claim that the hate crimes measure would create "special" rights for "homosexuals." Gillings argues that: "The legislation contains provisions that will increase the penalties for acts committed against certain protected groups . . . and giv[e] special legal stature to homosexuals and those with sexually-related "disabilities" (Apparently, Gillings has misread the proposal as regulating violence motivated by the victims' "sexually-related disabilities" rather than "disability").

Gillings's argument fails in two important respects. First, Gilling describes remedies for particular societal harms as unfair "special" advantages. This is an inaccurate characterization of the law. The Constitution, for example, protects the "free exercise" of religion because the country emerged out of a particular history of religious intolerance in England -- not because the Framers wanted to give religious people "special" advantages.

Gilling's special rights argument also fails because the proposed measure is drafted neutrally and would apply to any person with a "sexual orientation," race, "gender," etc. The religious freedom analogy helps here as well. Religious freedom protects the atheist and the believer. Similarly, the neutrally drafted hate crimes legislation would protect whites and persons of color, men and women, GLBT people and heterosexuals, etc. In fact, the Mitchell decision discussed above applied the Wisconsin hate crimes statute to a black-on-white racial hate crime.

Even though I tend to support hate crimes measures, I am doubtful that they deter the prohibited offenses. But, as conservatives often remind us, the criminal law metes out punishment in addition to deterring offenses. I am primarily supportive of these laws because they allow the government to make an important statement about the nation's values, which I suspect many Americans believe should include disapproval of all forms of violence, including hate crimes.

In the abortion context, conservatives have argued -- and the Supreme Court has agreed -- that Roe v. Wade does not prohibit states or the federal government from passing laws that express a preference for "childbirth" over "abortion" (e.g., by denying funds for abortion-related services and requiring mandatory waiting-periods and the distribution of information intended to encourage women not to have abortions). Given this precedent, the proposed legislation does not strike me as being constitutionally impermissible or aberrational.

1 comment:

Decidere said...

I'm not much on the categories of discrimination. It places the government in the position of psychoanalyzing behavior rather than banning and punishing particular behavior. Is there something really that makes it more of a crime for frat boys to chase me because they think I'm gay than for someone to fire a shotgun into a crowd of fans for the wrong football team? People frequently do crimes because of differences, period. But then violent domestic crime is typically with similar people. I once went through a bunch of laws for breach of contract, and they all seemed to say I would only have recourse if the breach was for gender, race or age, rather than say having to do with matters unrelated to execution of the contract. You can add religion, and someone will discriminate based on natural physical appearance - too ugly to hire. Whack down that mole, and up pops one on political party or being vegetarian or country mouse-city mouse. Oddly through all this I do support affirmative action efforts in cases of huge discrimination and distortion, but trying to codify equinanimous living gets us down into a thicket with no easy resolution.

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