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.

Burned Book Of Mormon Investigated As Bias-Motivated Crime In Colorado

Though it is quite clear that anti-Prop 8 activist have targeted Mormon temples in California--what Ed at Hot Air dubs "open season" on Mormons--including envelopes containing white powder, a burning copy of the Book of Mormon found outside a Littleton temple is now being investigated as a bias-motivated arson:

A fire outside a Littleton church is being investigated as a bias-motivated arson that may have stemmed from the church's position on a gay marriage amendment in California.

Arapahoe County sheriff's deputies responded to the Church of Jesus Christ of Latter-day Saints about 7 p.m. Tuesday after a church member found a burning copy of the Book of Mormon on a door step.

The caller who reported the fire told authorities that an LDS facilities manager indicated the incident may have been in retaliation for the church's stance on Proposition 8, passed in California last week.

Though speculation Wednesday was that the arson was in some way related to the furor over California's passage of Proposition 8 which banned same-sex marriage, the decision to move the investigation in the direction of bias-motivation comes just one day before Colorado groups join others across America in protest sets up a curious stage for advocates of same-sex marriage. Can victims of bias (what they allege) be guilty of bias themselves?

Civil Sense has some more observations on this form of counter-productive protesting.

Connecticut Supreme Court Endorses Gay Marriage-But Please Don't Call It Judicial Activism

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

Honorable friends,

The Supreme Court of Connecticut has just issued an opinion in Kerrigan v. Commissioner of Public Health, approving gay marriage in that state. I have no doubt that I will shortly be hearing a great deal about ‘judicial activism,’ given that both sides use that term whenever they disagree with a decision and neither side seems to know much about what it means. What it should refer to is the improper situation where a judge or panel of judges/justices, rules according to their own policy, independent of constitutional directives. The proper role of our judges for constitutional questions is to look at the law, match it to the constitution, and see if they fit — that is all. That is exactly what the Connecticut Supreme Court has done.

There are a few pertinent factors to keep in mind. First, Article 1 §§1& 20 of Connecticut’s constitution contains guarantees of equal protection and anti-discrimination that go well beyond the U.S. Constitution’s equal protection clause. The Court viewed this issue as a regulation upon sex, and spent the bulk of the opinion analyzing the treatment of Civil Unions verses Marriage under the same level of scrutiny it would use for any other type of sex or gender based legal distinction. Upon finding the legal status of sexual preference to be a sex based suspect class, it found no legitimate state interest whatsoever in granting heterosexual couples marriages while granting homosexual couples civil unions.

The Court was so thorough in this procedural analysis that the decision was downright dull. The opinion carried none of the fascinating historical analysis of marriage one finds in the Massachusetts case of Goodridge v. Department of Public Health, 440 Mass. 309 (2003), nor the lively discussions of civil rights in the California case of In re Marriage Cases, 43 Cal.4th 757 (2008). The only interesting language for lay people came in a footnote:

15 As one prominent legal commentator has explained in discussing the establishment of civil unions: ‘‘Such a step reduces the discrimination, but falls far short of eliminating it. The institution of marriage is unique: it is a distinct mode of association and commitment with long traditions of historical, social, and personal meaning. It means something slightly different to each couple, no doubt. For some it is primarily a union that sanctifies sex, for others a social status, for still others a confirmation of the most profound possible commitment. But each of these meanings depends on associations that have been attached to the institution by centuries of experience. We can no more now create an alternate mode of commitment carrying a parallel intensity of meaning than we can now create a substitute for poetry or for love. The status of marriage is therefore a social resource of irreplaceable value to those to whom it is offered: it enables two people together to create value in their lives that they could not create if that institution had never existed. We know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives.’’ R. Dworkin, ‘‘Three Questions for America,’’ N.Y. Review of Books, September 21, 2006, pp. 24, 30.

The dissenting opinions did not limit their most interesting prose to footnotes, but spoke eloquently of the tradition of marriage having long been between a man and a woman. They also mentioned that only heterosexual unions can produce children, and argued that the state has an interest in that procreative function. I know that many laypeople feel very strongly about both of these arguments. Unfortunately for them, as the majority pointed out, neither argument carries any legal weight.

Though traditions are often cherished, as the majority points out, they carry no weight in their existence alone. If they did, we would still have laws forbidding interracial marriages and wives would still be regarded as property interests of their husbands. In order for tradition to hold up under law, it must have a valid reason for its existence beyond the religious convictions of some faiths. As the Court could not find any such reason, they could not uphold tradition for its own sake alone. However, keep in mind that we are talking only about civil marriages; all Churches and faiths remain free to define sacramental marriage as they see fit.

The argument regarding procreation likewise fails. In this country, though marriage itself is ancient, our concept of it has changed frequently over the years. Over time, our courts have decided that valid civil marriages do not require procreation, or sexual intercourse, or even cohabitation. It is well settled that civil marriages exist primarily to facilitate personal companionship — and our right to define the nature of that companionship on an individual level has been declared as fundamental by our courts — the state merely provides a bundle of rights which accompany the status.

After reading the opinion, I am convinced the decision fits squarely with the extraordinarily broad guarantees of the state constitution, and is not a product of judicial activism. Indeed, because it is so heavily focused on procedural analysis under sex discrimination, it may be the least judicially active gay marriage case we have seen.