Sunday, May 3, 2009

Hate crimes and hate speech

Last week the U.S. House of Representatives passed HR 1913 , the Local Law Enforcement Hate Crimes Prevention Act. This piece of legislation has been opposed by many conservative Christian groups that fear prosecution under the proposed law if a pastor spoke out against homosexuality. Howard Friedman at Religion Clause has been following the discussion of the bill , so if you're unfamiliar with the proposal, you should check it out. Since it's in the news, I thought I would put in my two cents about hate crime laws and the closely related hate speech laws and codes. I personally oppose them, for both legal and pragmatic reasons.

For starters, I think hate crime and hate speech laws are patently unconstitutional. There are definitely some Equal Protection problems when a crime against a member of one ethnic or racial group is treated differently than the same crime committed against a person of another group. But the primary problem with hate crimes and hate speech is that they punish thought. Even though it is deplorable, it is not illegal to hate a minority or to believe that your particular race is the superior, pure race. I think it is unconstitutional and indefensible to punish a person (or increase that person's punishment) for believing something when those constitutionally protected beliefs are the motives for a crime. If the First Amendment protects an idea, it must protect that idea no matter how it is used.

My second reason for opposing hate crimes and hate speech is less of a legal reason and more of a pragmatic one. I noticed that the progressive think tank ThirdWay recently argued that the Hate Crimes Prevention Act is actually good for religious groups, since it would expand protection for religious groups. So it might seem that a religious person like myself should support the legislation. But from a common-sense standpoint, this is a bad idea. If we pass laws punishing constitutionally protected ideas, that opens the door for similar laws that can restrict our own ideas.

Where I went to law school the university had considered enacting a hate speech code on campus in the 1990's, and had consulted with several law school professors and student groups in the process. One of the constitutional law professors told them it was a terrible idea and almost certainly unconstitutional, but the school was still determined to enact the hate speech code until the local Lamda fraternity weighed in. They said that they recognized the fact that the hate speech code would protect homosexual students, but they did not support the proposal. They knew that any rule or law advocating one ideology or punishing another can open the door to similar laws advocating different ideologies. Hate speech codes and hate crime laws essentially turn over to the democratic process the job of protecting the rights of minorities. But majorities can change in a relatively short period of time, and very purpose of the First Amendment is to ensure that the rights of minorities are not in the hands of the majority.

The Hate Crimes Prevention Act might afford my religious beliefs additional protections, but only how and when the current majority chooses. When the majority changes its mind, my protections go out the window. So from a pragmatic standpoint, I would oppose any sort of hate crime legislation, leaving standard penal codes to do the work they were intended to do.

1 comment:

  1. If you look at the language of the bill, you'll notice that the bill protects those suspect and protected classes of people that the Supreme Court protects under the 14th Amendment. Race, religion, national origin, gender [I think I saw gender in there], and then proceeds to "squeeze in" sexual orientation. According to United States v. Morrison, the Congress has no authority to create protected classes of people, that job is for the Supreme Court; to interpret the meaning of the Constitution. So, yes, I agree that the bill may be unconstitutional with regard to the Equal Protection issue; that is, creating a new protected class of people. The argument goes like this: "How is it that someone who is gay, gets more protection from violence than someone who is not gay when we are both equally situated people (victims of violence).

    Notwithstanding this argument, the Congress passed the bill pursuant to its Commerce Powers (like the Violence Against Women Act), and through its Spending powers, not through the 14th. Spending powers means that Congress conditioned money on states enacting laws and certain programs; in this case, those that protect a protected class (homosexuals). The critical difference, is that the Supreme Court has interpreted the 14th Amendment to include gender as a suspect class, but not homosexuality. This may pose an issue in the future with regard to the SCOPE of Congressional power to enact law that protects a certain class of people pursuant to its broad Commerce and Spending power. However, at the moment, the bill is presumed to be facially constitutional.

    Congress can enact any bill that is constitutional and condition money for the states to enforce the bill or enact further legislation pursuant to the bill. The process works like this: 1) Congress creates a law, 2) Congress conditions money to the states for the states to create legislation or enforce a federal law. Think, “No Child Left Behind”. When Congress conditions money, and the states accept, then the states must keep the promise that comes with the money. As I understand it, the Hate Crime Bill conditions money for states to enact Hate Crime programs, which is completely constitutional. In other words, it may be constitutional for Congress to condition money for states to enact hate crime law within their states, but nevertheless, unconstitutional for congress to make Hate Crime a federal offense.

    Politically, this bill comes at a very interesting time. There is a vacancy on the Supreme Court, and President Obama, a strong advocate for homosexual equality, will no doubt fill the vacancy with a “liberal” judge. If and when someone is charged for a Hate Crime as a federal offense, the new vacancy that Obama fills may determine the Hate Crime bill’s fate. With a more liberal court, the Supreme Court may be more inclined to include homosexuals as a suspect class, albeit an “intermediate scrutiny” suspect class. As with some things in the law, we’ll just have to wait and see what happens.
    Fundamentally, however, my personal belief is that this bill is a step in the right direction. It’s a sad truth that violence, at times, targets those who are weak and defenseless. Think, senior citizens, blacks (back in the days), woman, children etc. Gays are a super-minority, less than 10% of the population some advise, and violence pursuant solely based on sexual orientation is no different that preying on another minority group simply because they are “weaker” or hold less political power. Indeed, the bill addresses this issue. Perhaps the focus should be less on whether gays deserve higher protection in this context, and more on the historical perspective that super-minorities should be protected in general. Criminal acts that pursue super-minorities for the sole reason of their “Mere Human Status” of being gay deserve a higher punishment because such criminal mindsets are a gross deviation from common principles of equality and a free democratic society.