The House of Representatives voted yesterday 249-175 to expand federal hate crimes laws to include crimes that were motivated by the victim’s gender, sexual orientation, sexual identity, or disability. The bill also lifts the previous restriction that the victim had to be engaged in a federally protected activity when attacked, such as voting or attending school. Additionally, the bill expands federal assistance to state and local authorities for the investigation of suspected hate crimes.
The measure has yet to be taken up by the Senate. It has proven to be quite controversial, with the House vote coming in almost entirely along party lines. Religious Right organizations mobilized their constituents to speak out against the measure. Focus On the Family claims to be responsible for 5,000 messages to Congress against the bill.
Why is it controversial? Let’s look at a few of the objections to this legislation:
Representative of the Religious Right case against hate crimes laws is an editorial from today’s edition of the right wing newspaper the Washington Times, which concluded:
Once homosexuals become a special class protected by hate-crime legislation, the back door is open to prosecuting those who speak out against homosexuality and same-sex marriage. Yesterday’s House vote was really about creating thought crimes to further the liberal agenda.
That unsubstantiated assertion (that the bill creates “thought crimes”) was ominously illustrated with a photograph of George Orwell.
In a piece dripping with contempt towards the LGBT community, Matt Berber puts it in more drastic terms:
In short, this bill places newfangled “gay rights” in direct conflict with our enumerated constitutional rights. It becomes the first step in the official criminalization of Christianity. It’s a zero sum game and someone has to lose. Ultimately, what we lose are our First Amendment guaranteed rights to freedom of speech, religious expression and association.
Um…no. This is the often repeated lie of the Religious Right, but this simply isn’t the case. Let’s get a few things clear about this bill.
First, this is a hate crimes bill, not a hate speech bill. Commentator and attorney Glenn Greenwald explains the distinction:
Hate speech laws and hate crimes laws are entirely different, since the former punishes the pure expression of ideas while the latter involves the commission of actual crimes, usually quite violent and serious crimes. One can easily and coherently oppose the former but support the latter.
While critics have been drawing on cases from Europe where people were prosecuted only for what they said, what they are referring to are laws against hate speech, rather than hate crimes. Many countries in Europe have these kinds of laws; thankfully, the United States does not, because Congress cannot just legislate away the First Amendment. This bill does nothing to criminalize hate speech.
In fact, the language in the actual bill is clear that the defendent’s actions, not thoughts, are what will be on trial:
In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense.
This law isn’t about punishing what the criminal thought; it’s about punishing what the criminal did. It does nothing to prevent a pastor from sermonizing against homosexuality from the pulpit, or for a newspaper to publish anti-gay editorials (don’t worry, Washington Times!), or anything relating to speech, freedom of the press, or freedom of religion. It does nothing to prevent religious activists from rallying against marriage equality. Anyone that tells you otherwise doesn’t understand the bill or is simply lying.
Another objection to the hate crimes bill is that, as an issue of fairness and equal protection, crime victims should not be treated any differently based on the motivation behind the crime. In other words the punishment should be the same for a criminal whether he committed assault because the victim was gay or because he wanted the victim’s wallet. This is reflected in the comments by Rep. Lamar Smith, R-TN, when he was speaking against the bill:
“All violent crimes must be vigorously prosecuted,” Smith said. “Unfortunately, this bill undermines one of the most basic principles of our criminal justice system — ‘equal justice for all.’”
“Justice will now depend on the race, gender, sexual orientation, disability or other protected status of the victim,” Smith said. “It will allow different penalties to be imposed for the same crime.”
What this argument fails to recognize is the particular threat that hate crimes have towards society. For one, when a person is attacked because he or she is identified as being part of a particular group, the attack is, in essence, against the entire group. For example, if racist graffiti was spray painted on the home of an African American family, would it not be clear that the action was taken to intimidate not only that particular family, but any other African American family in the area that may subsequently fear being victimized by a similar crime? The group of victims encompasses those that are given reason to fear after the attack. Hate crimes are a way of sowing terror among the particular group that is the target of hate. This is more detrimental to society than many other types of crimes, and the punishment for the perpetrator should reflect this accordingly.
The new hate crimes bill is, unfortunately, not going to end violence that is motivated by hatred. But it will give law enforcement and prosecutors additional tools to deal with these crimes and ensure that the criminals receive a just punishment.