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Fewer Laws, Not More

June 2007


On May 3, the US House voted to extend existing federal hate-crime law to include crimes committed because of a victim’s gender, sexual orientation, gender identity, or disability.


Predictably, many gay groups lauded the vote, and are rallying to advance companion legislation in the Senate.


Such enthusiasm is woefully misplaced. While hate-crime laws may provide an irresistible organizing tool (for who wants to be positioned as being “for” hate?), they are a civil liberties disaster. The rights of the gay community, of all Americans, are better served by vigorous opposition to hate-crime laws and the unequal justice they spawn.


Hate-crime laws are supposed to work by enhancing criminal penalties for crimes committed against certain “protected” groups. The rationale is that a bias-motivated crime is violation of not just one person, but an entire group; thus, harsher penalties are warranted.


Thoughtful reflection reveals the vacuousness of such thinking. All crimes effect more than one person. Should victims with large extended families receive more legal consideration than those from smaller families? Should harming a hermit be adjudged trivial?


Some might argue that the groups listed in hate-crime legislation have been frequently targeted for criminal abuse and thus merit extra protection. And perhaps federal anti-lynching and voting-rights-related violence protections could be defended at the time, given Jim Crow’s refusal to allow black citizens access to state courts. But there is no evidence that states are now ignoring crimes committed against the newly “approved” groups.


Indeed, it will always be precisely those without the political wherewithal to win special legislative endorsement that will be likely targets for “bias-motivated” crimes: the homeless and destitute, those on the political fringe, ex-prisoners, undocumented immigrants. This realization underscores the fundamental damning objection to hate-crime laws: any laundry list granting more “protection” to some groups necessarily leaves others with less. Hate-crime laws erode the hard-won and noble guarantee of equal justice under the law.


Hate-crime laws also cede dangerous power to the government to punish unpopular thought. Such laws invite– indeed, require– courts to consider a defendant’s beliefs and thoughts, distracting attention from legitimate evaluation of his actions and conduct. The Bill of Rights’s guarantees of freedom of conscience are undermined by hate-crime laws. No matter how despicable we find someone’s beliefs, he should only be punishable for his actions.


In addition to such principled objections to hate-crime laws, thoughtful gay people will note many pragmatic concerns, as well.

With hate-crime laws in place, almost any barroom brawl becomes a potential federal felony carrying a multi-year sentence– a prosecutor simply has to alleged that a epithet derogatory to a protected group was uttered. Do we really want to give politically ambitious prosecutors more power to selectively elevate foul-mouthed scuffles into headlines-grabbing cases?


The US already has an infamous and deplorable prison-industrial complex that imprisons more people per capita than any other country. Ever-more Draconian sentences aimed at ever-more demonized drug users and sex offenders keep prisons packed, even as violent crime rates drop. Do we really want to lock up more people for longer sentences because they used insulting language?


Politicians who’ve done nothing to advance sexual freedom or civil liberties like to cite their support for hate-crime laws as a “pro-gay” credential. Do we really want to reward such hollow gestures?


And finally, is it wise to squander effort on a political strategy that casts ourselves as victims and offers brutal state intervention as the solution? As gay people, we have a vital message of freedom and joy for a world still bedeviled by fear of homosex. Let us be not victims, but prophets who proclaim that enlivening message as we struggle for world with less self-righteous condemnation, not more.


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