Hate Crimes: Killing Both Liberty and Equality

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Stunned. Appalled. Deeply saddened. Angry. I remember feeling all of these emotions as I watched the tragic story of Matthew Shepard’s brutal slaying unfold in the media back in 1998. It was with great satisfaction that I watched the conviction and incarceration of his murderers. I thought that would be the end of it. Unfortunately, I forgot that a terrible emotional tragedy often leads to a terrible legal tragedy.

Yesterday, a friend called to gush happily that President Obama just signed new hate crimes legislation into law, which includes sexual orientation in its protections. He was surprised that I did not share his enthusiasm and wondered how someone who supports gay rights could fail to be pleased by this outcome. In truth, I support equal rights for all individuals. I believe every individual has the right to determine the nature and type of their intimate relations, their associations, and how to use and dispose of their own property without government interference. Because of this, I have often supported gay rights efforts. However, what right does hate crimes legislation protect?

Hate crimes legislation does not protect any right whatsoever. On the contrary, it is a prohibition. But what exactly does it prohibit? Certainly, it does not prohibit any action. Indeed, we already have a comprehensive body of law prohibiting assault, battery, murder, rape, et cetera. Hate crimes legislation does not add to this list. Rather, it criminalizes the thoughts of the defendant committing these already established crimes.

My honorable friend argued that our legal system already imposes greater or lesser punishments based on a defendant’s mental state, so I should not be overly concerned with this addition to our legal process. This is not entirely accurate, though. Consider the following two cases:

In the first case, John and Eric are playing hockey. At the end of the game, John manages to steal the puck right out from under Eric’s nose and score the winning goal. In a fit of blind rage, Eric leaps upon John and beats him to death with his hockey stick.

In the second case, John and Eric have just attended a lively Political Science class at their college, where John expressed several views Eric detested. Determining that John should be taught a lesson, Eric hid in some bushes and ambushed John as he walked back to his apartment. He then proceeded to beat John to death.

Under our legal system, Eric committed murder in both of these cases. However, in the first case, he flew into a blind rage where passion, not reason, guided his actions. Consequently, we impose a lesser penalty than in the second case, where he clearly plotted the crime and intended to commit murder. Thus, our legal system judges the defendant’s mental state of intent. We do not normally criminalize his thoughts.

Now consider the same two cases, but assume that John is gay and Eric is homophobic. Has anything really changed? Is John any more dead, or Eric any guiltier of murder than in the first two cases? No. Under hate crimes laws, however, Eric is guilty of having thoughts and values the government finds objectionable, and so his punishment is increased. This is why hate crimes legislation is so dangerous. It presumes to regulate that which should be beyond the reach of any government: our thoughts and values. That is not where the danger ends, though. Perversely, hate crimes legislation also means that, as a gay man, John’s life is more valuable to society than the lives of other men who may be straight, and thus do not share John’s increased legal protections. This is not Justice. It is patently immoral.

A society of equals cannot exist when the laws unequally value lives. A free society cannot exist where a government has the right to criminalize thought. While I agree that homophobic people are ridiculously small minded and hateful, I cannot bring myself to criminalize their thoughts and values on that subject. I remember all too well the days when homosexuals and anyone sympathetic to them was viewed by governments and society as perverse, deviant, and indeed, criminal. This reasoning applies to any hate crimes legislation, whether it is intended to protect race, religion, ethnicity, sex, or sexual orientation. The right to determine ones own values and thoughts, however objectionable others may find them, is fundamentally necessary to maintain a free society and public discourse. Contrary to what my honorable friend mistakenly believed, anyone who supports gay rights, or indeed any individual rights, should not be celebrating the expansion of hate crimes legislation; they should be trying to repeal these legal abominations entirely.

No group of people can gain acceptance through force of law. They only succeed in destroying their own liberties and becoming the oppressors they once fought. They should instead endeavor to maintain equal rights for all, and rely on persuasion to alter the opinion of their fellow citizens.

If there is such a thing as a Devil, I doubt he ever appears in flames with cloven hooves and frightening horns. It seems to me he would be beautiful and seemingly benign. In our society, the greatest devil of all is the government. Hundreds of smiling men and women, in both Congress and the executive branch, frequently offer to solve all our problems with a seemingly benign law or regulation. All it costs is our liberty and equality, the soul of the United States.