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.