Sorry this has turned out to be more of a quarterly report than a blog. Thorough writing takes time, which has been in short supply throughout my clerkship. But the “hate crime” bill pending in Congress has fanned the flames of passion, driving me to make time this week.
I haven’t read it. I know nothing of its specifics. But I take the media’s description at face value, in that the bill punishes violent crimes more severely based on the victim’s homosexuality (as I understand, the current version of the law imposes increased punishments based on sex, race, etc.). I understand the good intentions behind this sort of legislation, but to quote Seth Meyers: Really? REALLY?? How can something so misguided make it all the way through the federal legislative process? This is a perfect example proving the point of my last post: the fundamental problem with state-sanctioned gay marriage isn’t religious or even moral but rather the flawed premise that homosexuals are “special,” somehow deserving of heightened privileges under the law (i.e., the “protected class” status invoked by homosexuals in the equal protection context). Once you start to believe that the type of people a person chooses to sleep with somehow makes that person worthy of a special legal status, how and where do you draw the line? Now the Majoritarian Agenda is pushing legislation that values someone’s life and limb based on their self-professed sexual orientation. There are two ways to view hate crime laws: enhancing the value of some victims’ lives because they posses a certain characteristic, or minimizing the value of other victims’ lives because they do not. How can the Majoritarian Agenda scream “EQUAL PROTECTION!” to justify why marriage laws should be radically altered to redefine a millennia-old institution, while at the same time promoting this sort of legislation? The hypocrisy completely discredits the entire movement.
And don’t think for a second that my criticism singles out the sexual orientation provision. All hate crime provisions are equally abhorrent. Killing or raping or beating someone is wrong regardless of sexual orientation, gender, race, or ethnicity, and must be punished appropriately. The fact that a perpetrator was motivated by certain characteristics of the victim should be absolutely irrelevant to society’s admonishment. Not only do hate crime laws recklessly devalue the lives of victims deemed merely “normal,” but they punish motivation rather than crime itself.
“Sure! What’s wrong with that?” you ask.
Well for starters, this sort of legislation criminalizes opinions. Think about that for a minute.
Obviously, most of us reject irrational hatred based on the type of characteristics that hate crime laws seek to protect. Most of us teach our kids that it’s wrong to judge a book by its cover, and that things like sexual orientation, race, and gender don’t preclude friendships. But some members of society legitimately (in their minds) believe that homosexuals are immoral, that blacks and Hispanics are inferior, or that women should be subservient to men. A few of these people vehemently despise homosexuals, racial minorities, and women. Nevertheless, even the most liberal constitutional scholar will tell you that minority viewpoints like these are precisely what the First Amendment was designed to protect, and what it must protect. It’s easy to avoid suppressing popular ideas; we don’t need a Constitution for that. The sole point of “free speech” as we know it is to protect unpopular ideas – like animosity towards blacks, gays, women, or foreigners. Levying enhanced criminal penalties simply because a perpetrator was motivated by a viewpoint we don’t like jeopardizes the sanctity of our marketplace of ideas as much as censoring that viewpoint in print.
Does the First Amendment allow the government to prohibit the publication of misogynistic, racist, or otherwise hateful commentary? Of course not. The fact is, we all have the right to dislike certain things and certain people – whichever things and people we choose, for any reason. Strong personal opinions should be encouraged as a matter of principle, not discouraged for fear of confrontation and friction. Dissent is the grease that keeps the cart wheels moving through the marketplace of ideas. For nearly a hundred years, the Supreme Court’s First Amendment jurisprudence has effectively managed to distinguish between thoughts which are protected by the First Amendment and criminal activity which is not. Until the recent advent of hate crime legislation, it was well established that thoughts and opinions could only be regulated if vocalized in a manner likely to incite imminent lawless behavior; that is, only if the thoughts and opinions are translated to actual speech, and even then only if the speech is a direct call to commit crime.
Is anyone really comfortable allowing our government to criminalize thoughts, even if it begins with thoughts we personally disagree with? Perhaps it is all too easy to accept laws targeting particular types of “hate” which the vast majority of society opposes. But if this sort of legislation is allowed to continue, none of us will be safe. No two people think exactly alike. Each of us holds deep personal opinions that are controversial to at least some members of society. And most of us disagree with the Majoritarian Agenda on least one or two things. How can any of us sit silently and watch as the government takes steps to judge the correctness of personal opinions and impose criminal liability when those opinions do not conform to the majority? If society comes to accept the principle behind hate crime legislation, it is only a matter of time before the Majoritarian Agenda gradually constricts itself tighter and tighter around our collective consciousness, suffocating outliers and iconoclasts until all that remains is an irrevocably entrenched, stagnant status quo.
The line between unpopular (even dangerous) ideas and criminal activity is properly drawn precisely as it has been for generations: at “activity.” Violent acts have always been criminal because of the harm they cause, not because of an attacker’s motivation. Rightly so. At best, hate crime legislation criminalizes animus itself, effectively censoring thought. At worst, the inherent fallibility of censors (in this case, our judicial system) makes it impossible to separate the targeted animus from other motivations. Even if criminalizing particular motivations for violence were desirable (which it is clearly not), it is naive to think that such policy can be implemented uniformly, consistently, or efficiently. Mixed-motive cases will be impossible to prosecute in an effective manner, with arbitrary results and burdensome costs of protracted litigation.
If a white guy kills a black guy in a drunken bar fight, it would be possible to prosecute the murderer under a hate crime statute if he yelled out “I hate niggers!” while pulling the trigger. Unfortunately, very few violent crimes play out so neatly, and prosecutors, defense attorneys, judges, and juries will waste endless hours trying in vain to peer inside a defendant’s mind at the moment of an offense. Almost all crimes can be characterized as mixed-motive; under hate crime laws, criminal liability will come to hinge significantly on the physical and personal characteristics of victims. The Matthew Shepard case is the perfect example – we will never know whether Russell Henderson and Aaron McKinney attacked Matthew because of animosity towards gays or simply because they were looking for someone to rob. And why does it matter? Both men are serving life sentences without parole after copping pleas to avoid the death penalty. The criminal justice system worked perfectly, with absolutely no regard for Shepard’s sexuality. Yet Shepard’s case was a catalyst for hate crime legislation, and the case belies even the slightest pretense of legitimate purpose behind such laws. Adding more prison time to a life sentence effectuates no additional deterrence, even in the abstract, theoretical sense (and from a practical perspective, little deterrence would likely be gained even for crimes with shorter sentences). The hate crime laws proposed in the wake of Shepard’s murder serve only to send a message that hatred of homosexuality is criminal. That is a dangerous message to send. In our society, there should be nothing criminal about hating homosexuals or anyone else. As each of us must retain the unfettered freedom to form our own beliefs, each too must bear responsibility for the actions we choose because of those beliefs. Existing laws ensure that perpetrators of violent crime are held accountable for their actions, regardless of a victim’s race, national origin, gender, or sexual orientation.
No comments:
Post a Comment