What Is wrong with the federal hate crime law?

By John Rutherford

After 12 years of protracted debate, it looks as if the nation will finally get a federal hate crimes law that includes gay people as a protected class. All this despite the fact, according to the FBI, that of the nearly 1.5 million violent crimes in the U.S. in 2007, only 1,460 were reportedly based on sexual orientation.

Repeated attempts have been made over the past decade to expand the Civil Rights Act of 1968 to include crimes motivated by a person’s actual or perceived sexual orientation, gender identity or disability. The most recent legislative attempt, the Matthew Shepard Act, in memory of a gay college student who was savagely beaten to death in Wyoming in 1998, was passed by both houses of Congress in 2007, only to be vetoed by President Bush. However, President Obama has been vocal about his support for the Act and has made clear his desire to see federal hate crimes legislation strengthened, expanded and vigorously enforced.

"The bottom line is simply that you cannot legislate an end to ignorance, prejudice and bigotry, and that’s the problem with the Hate Crimes Act. All legislation will do is punish actions and sweep in more innocent people. But it won’t change hearts and minds — and that’s where you have to start in combating hatred and bigotry."

The Local Law Enforcement Hate Crimes Act of 2009, currently before the House Judiciary Committee, is expected to be sent to the House of Representatives for a vote later this spring. This proposed law gives federal officials greater authority to engage in hate crime investigations at the local and state level. It also removes the current prerequisite that the victim be engaging in a federally protected activity like voting or going to school. In other words, it opens the door for federal law enforcement officials (whether it be agents from the FBI, the Department of Homeland Security and so on) to crack down on undesirable behavior wherever it occurs. The problem, which few want to acknowledge for fear of being labeled politically incorrect, or worse homophobic, is that in order to crack down on hateful behavior, hateful thoughts and expression must also be targeted — which runs diametrically counter to the First Amendment’s protections for free speech and expression.

Even the ACLU, which refused to support earlier versions of proposed hate crime bills, has finally caved. In a recent letter to Congress, the ACLU took pains to justify its support for the hate crime bill, insisting that "the legislation provides important new civil rights protections, while also providing an unprecedented level of statutory protection for free speech and association." Unfortunately, the ACLU is asleep at the wheel on this one because, no matter what so-called provisions you include to protect speech, as long as you start prosecuting someone for their feelings about something or someone, all forms of speech and thought immediately become suspect.

It’s a complicated, polarizing issue that stirs up deep-seated wells of prejudice, fear and bigotry. However, even with the best of intentions behind it, hate crime legislation on the whole is riddled with problems — and that was the case even before protections for sexual orientation were included.First, hate crime laws are shortsighted in that they favor a particular class of individuals for protection and seek to punish certain prejudices. As authors James B. Jacobs and Kimberly Potter ask in their book, "Hate Crimes: Criminal Law & Identity Politics," "should all prejudices (ageism, anti-gay bias, bias against the physically and mentally disabled, etc.) be included in hate crime laws or only a select few (racism, ethnic bias, and religious bias)? Inevitably, if some groups are left out, they will resent the selective depreciation of their victimization." Second, the ramifications go far beyond the intended purpose of dissuading acts of violence against a protected class to actually chilling free speech. On the whole, hate crime laws unnecessarily blur the distinction between what might be constitutionally protected, albeit deplorable, speech and criminal behavior.

Third, this expanded hate crime law creates a whole new class of investigative techniques by government agents and the police. Hate crime laws create a bureaucratic nightmare that poses real threats to our constitutional rights.

The bottom line is simply that you cannot legislate an end to ignorance, prejudice and bigotry, and that’s the problem with the Hate Crimes Act. All legislation will do is punish actions and sweep in more innocent people. But it won’t change hearts and minds — and that’s where you have to start in combating hatred and bigotry.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at [email protected]. Information about The Rutherford Institute is available at www.rutherford.org.