Hate Crimes Laws Violate the Constitution
As an opponent of “Hate Crimes” legislation, I often cringe when I read how some who share this view attempt justify their opposition. Like the hysterical comments of gay marriage supporters, their arguments make it more difficult to convince others of the merits of their position.
I mean, c’mon assuming that legislation designed to enhance penalties for violent acts based upon the class of the victim being used to punish a socially conservative pastor who offers his interpretation of Scripture without assaulting anyone? Seems a wee bit paranoid.
On Friday, conservative blogger Ed Morrissey took Republican Congresswoman Virginia Foxx to task for calling it a “hoax” to name the Hate Crimes bill in the House for Matthew Shephard. He found her contention “absurd on two levels,” the second being:
. . . that even if one accepted that this particular case involved no animus against gays, undeniably people commit crimes based on that animus as well as a range of others. The animus exists, and can be seen in a variety of criminal and non-criminal acts. The question, which Foxx eclipsed with this sorry performance, is whether we want to start criminalizing thoughts as well as actions.
While understanding that anti-gay animus does exist and oftentimes leads to criminal acts, Morrissey believes Hate Crimes law do not pass constitutional muster. He quotes Jazz Shaw who writes that when you attach “greater guilt to certain parties for committing the same crimes, based on nothing more than what they were thinking at the time and the ‘class’of citizens who were the victims, then you are providing unequal protection of the laws.”
I agree with Ed who finds this incompatible with the Fourteenth Amendment: ”Creating classes of victims means creating classes of citizenry.”
Just because Congresswoman Foxx made a bone-headed comment (for which she should apologize*) doesn’t mean that she was wrong to oppose this legislation. We need acknowledge that some people do target minorities for violence on account of their difference. And we need make sure that those who do so are punished accordingly. Just as we punish those who commit violent acts for another reasons.
Let’s make sure to punish the perpretators for the degree of violence of the crime, but not their thought process.
*UPDATE: Since writing this, I learned that she has (apologized).
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Legislation to extend hate crimes protections to homosexuals and transgendered individuals could severely restrict religious freedom…
GPW: you might check with Mark Steyn, Ezra Levant, and some preachers in Canada. As kooky as it seems right now, I think these religious leaders have a legitimate concern.
Steyn and Levant committed the hate crime of offending Muslims and I’ve read of Christian preachers being threatened with prosecution for sermonizing about homosexuality (of course, they wouldn’t dare apply the same standards to Muslim preachers).
Comment by SoCalRobert — May 3, 2009 @ 8:14 pm - May 3, 2009
Let’s do away with all Federal hate crime legislation. I am a bit curious, has anyone been prosecuted under the current groups that are protected by such legislation?
Comment by Swampfox — May 3, 2009 @ 8:29 pm - May 3, 2009
Will the sanctity of political correctness be under stress if hate crimes are scrubbed? Something has to give liberal elitists standing.
Comment by heliotrope — May 3, 2009 @ 8:35 pm - May 3, 2009
Font Size: Decrease Increase Print Page: Print Hal G. P. Colebatch | April 21, 2009
Article from: The Australian
BRITAIN appears to be evolving into the first modern soft totalitarian state. As a sometime teacher of political science and international law, I do not use the term totalitarian loosely.
There are no concentration camps or gulags but there are thought police with unprecedented powers to dictate ways of thinking and sniff out heresy, and there can be harsh punishments for dissent.
Nikolai Bukharin claimed one of the Bolshevik Revolution’s principal tasks was “to alter people’s actual psychology”. Britain is not Bolshevik, but a campaign to alter people’s psychology and create a new Homo britannicus is under way without even a fig leaf of disguise.
The Government is pushing ahead with legislation that will criminalise politically incorrect jokes, with a maximum punishment of up to seven years’ prison. The House of Lords tried to insert a free-speech amendment, but Justice Secretary Jack Straw knocked it out. It was Straw who previously called for a redefinition of Englishness and suggested the “global baggage of empire” was linked to soccer violence by “racist and xenophobic white males”. He claimed the English “propensity for violence” was used to subjugate Ireland, Scotland and Wales, and that the English as a race were “potentially very aggressive”.
In the past 10 years I have collected reports of many instances of draconian punishments, including the arrest and criminal prosecution of children, for thought-crimes and offences against political correctness.
Countryside Restoration Trust chairman and columnist Robin Page said at a rally against the Government’s anti-hunting laws in Gloucestershire in 2002: “If you are a black vegetarian Muslim asylum-seeking one-legged lesbian lorry driver, I want the same rights as you.” Page was arrested, and after four months he received a letter saying no charges would be pressed, but that: “If further evidence comes to our attention whereby your involvement is implicated, we will seek to initiate proceedings.” It took him five years to clear his name.
Page was at least an adult. In September 2006, a 14-year-old schoolgirl, Codie Stott, asked a teacher if she could sit with another group to do a science project as all the girls with her spoke only Urdu. The teacher’s first response, according to Stott, was to scream at her: “It’s racist, you’re going to get done by the police!”
She was questioned on suspicion of committing a racial public order offence and then released without charge. The school was said to be investigating what further action to take, not against the teacher, but against Stott. Headmaster Anthony Edkins reportedly said: “An allegation of a serious nature was made concerning a racially motivated remark.
http://www.theaustralian.news.com.au/story/0,,25361297-17062,00.html
many instances, of what Can happen on this page and yes also as with Levant and Stein.
Comment by shelley — May 3, 2009 @ 9:06 pm - May 3, 2009
i believe i messed up my response. it was supposed to start at:
Page was at least an adult. In September 2006, a 14-year-old schoolgirl, Codie Stott, asked a teacher if she could sit with another group to do a science project as all the girls
above paragraph
Comment by shelley — May 3, 2009 @ 9:08 pm - May 3, 2009
Volokh posted something recentely on this, but I’ll be damned if I can find the link.
The upshot was that it was all an end run around double-jeopardy and unconstitutional in that regard.
Apparently, the law states that prosecutors can use the hate-crimes statue AFTER a defendent has been tried and found INNOCENT of a crime. They can then, under hate-crime statue, re-prosecute for the same infraction.
All in all, it’s like gun-control laws. When you pass a law limiting actions (or in this case thoughts), you only limit the already law-abiding.
Best wishes,
-MFS
Comment by MFS — May 3, 2009 @ 9:28 pm - May 3, 2009
Wow. The ignorance on this blog is amazing. Here’s the 101:
Double jeopardy – Is inapplicable under the separate sovereigns doctrine. That means that the feds are a different sovereign than a state and so if they choose to prosecute you for the same wrongful act, that is not double jeopardy. Doesn’t happen that often, but sometimes does. For example, in civil rights cases such as the police who beat Rodney King. The officers were acquitted of state law charges in CA state court, then tried and convicted in federal court on civil rights charges. Whatever one may think of the propriety of the federal prosecution, it is not double jeopardy for the feds to prosecute. And as this is 1st year law school stuff, I know that Volokh didn’t post that it was.
First Amendment – The statute expressly says that it is not intended to cover any acts protected by the 1st Am. Looking at Canada and Europe is pointless, because those countries have different constitutional schema, which permit the criminalization of speech in a way that has never been permitted in this country. Also worth noting that hate crimes laws have been around for decades (some covering gays, some not) and they have not been found to violate the 1st Am.
Equal Protection – The weakest of all the constitutional objections arguments. The law applies to criminal acts perpetrated by anyone of either sexual orientation against anyone of either sexual orientation. The relevant element under the statute is the motive of the defendant, not the sexual orientation of the victim.
Comment by Bill — May 3, 2009 @ 10:51 pm - May 3, 2009
Credit where credit’s due: Bill, Esq. is right on double jeopardy and on the source.
It was actually David Freddoso on the Corner and he was much more precise than my previous, breezy synopsis:
"…If someone is acquitted of an alleged hate crime at the state level, this bill allows federal prosecutors to haul him into federal court for the same alleged act, based only on evidence that “hate†motivated the crime that the jury says the defendant didn’t commit. This makes use of a loophole in the constitutional protection from double jeopardy…"
Freddoso does a much better job describing right-thinking objections to hate crimes legislation in general and the Sheppard bill in particular than I did.
Again, thanks for the assist, Bill.
Best wishes,
-MFS
Comment by MFS — May 3, 2009 @ 11:24 pm - May 3, 2009
Creating extra laws for different classes is thought criminalization, pure and simple, and it has no place in America.
Comment by Jordan — May 4, 2009 @ 1:34 am - May 4, 2009
it is in the interests of all of us – and I am talking globally – to throw out any legislation concerning alleged hate crimes.
This legislation is used to support such idiots as Perez Hilton when he states the absurdity that someone, that is a Christian woman, expressing her belief about marriage is a hate crime.
It is far better that we come together as one in order to battle against the likes of the Ku Klux Klan or similar, rather than have legislation that has far reaching consequences.
Ever since the gay rights movement began it has been full of rabble rousers, and I believe that this is bad for the men and women who want to get on with their private lives without prying eyes. It is only right to oppose legislation that intrudes in the bedroom. Everyone has a right to privacy. However, it is not ok for the Rainbow Movement (whatever they call themselves) to enter into a space that is sacred to Christians and to cause disruption on a Sunday or at a service.
Just because I have those beliefs does not make me anti-gay. If I was advocating that gays should be rounded up and jailed or even worse that they should be hanged or shot, then I would be committing a hate crime – this is what is to be found in countries such as Iran and Saudi Arabia.
I do not advocate violence against people who are black or Hispanic etc. etc. I believe in treating people according to who they are, and not according to the colour of their skin. This I believe is not enhanced by hate crimes legislation. Such legislation should be opposed unless it has the more narrow focus of dealing with certain extreme groups, such as the Ku Klux Klan or Fred Phelps.
Comment by thestraightaussie — May 4, 2009 @ 4:38 am - May 4, 2009
Let’s make sure to punish the perpretators for the degree of violence of the crime, but not their thought process.
Dan, are you saying that we should eliminate the crime for murder? What distinguishes murder from manslaughter is the person’s thoughts before and at the time of the homocide. And the penalties differ greatly between the two crimes, even though the degree of violence is the same.
I’m still on the fence with hate crime laws. But so far, what I’ve seen is that hate crime laws do not punish thoughts, except when those thoughts motivate a crime. I am definitely against any law that punishes thoughts only.
Hate against a class of people can be a motivating factor when it comes to crime, including homocide. So a person who hates gay people, and wants to kill one, hangs outside a gay bar, and then kills the first person he perceives as gay, is guilty of murder in my book, not just manslaughter. I don’t see why this additional penalty could not be applied if the crime is assault.
If you’re argument is that, in determining the penalty of the crime, we should look at a person’s thought process (like we do in murder), but not limit it to the perceived class of the victim, then fine, I could agree with that.
I cringe when I hear people opposed to hate crimes say their opposition is “thought crime” even though they do not oppose the crime of murder. Or even worse, they support hate crimes legislation for all sorts of protected classes, except sexual orientation.
Comment by Pat — May 4, 2009 @ 6:38 am - May 4, 2009
I do not advocate violence against people who are black or Hispanic etc. etc. I believe in treating people according to who they are, and not according to the colour of their skin.
So do I. But it’s not the color of the skin that should be the issue here. It’s the person who commits the crime based on their hatred against the victim’s skin color. And if there is going to be hate crime laws, it shouldn’t be limited to minority races or ethnic groups.
Such legislation should be opposed unless it has the more narrow focus of dealing with certain extreme groups, such as the Ku Klux Klan or Fred Phelps.
Why that distinction?
Comment by Pat — May 4, 2009 @ 6:44 am - May 4, 2009
You know, I can not help but think of the gays, Gypsies and Jews who encountered the systematic “purging” efforts of the state under Hitler and Stalin. It became politically correct to hate and “exterminate” these people.
Why would you want to trust any state system to define and punish hate? Polly Klass was murdered by a man of true hate. As his final act in the courtroom, he said little Polly asked him when he raped her if he was going to do what her father did to her so often. Then he flipped her father the bird and grinned at him.
What exactly is it that the “victim” of hate is supposed to get out of the charade of parading the “hate” through the eye of the best defense available needle?
I a “fair” world, the judge would have handed a gun to Polly’s father and offered him the chance to put the rabid dog down on the spot.
Comment by heliotrope — May 4, 2009 @ 9:46 am - May 4, 2009
What always amazes me about the “hate crimes” debate is how quickly it escalates into a scholarly discussion of Mens Rea, Actus Reus, the First Amendment, Double Jeopardy, Equal Protection, and practically every other notable clause in the Constitution, at the expense of what these laws are really about. Hate crimes legislation is about…brace yourselves…narcissistic liberals pandering to their favored and chosen little “victimized” groups. Liberal politicians and judges spend their entire careers devoted to the cause of ensuring that the guilty go free and the convicted go unpunished, but suddenly we’re supposed to accept that overnight they have transformed in Dirty Harry/Harriet when it comes to these punks. Yeah. Right. Now they are suddenly interested in “deterrence” and “justice” and “punishment,” instead of the “root causes of crime” and the goal of “rehabilitation.” It’s so tacky, and it SHOULD BE transparent, but for some reason, a liberal politician can talk about these laws being necessary to make sure that what happened to Matthew Shepherd doesn’t happen to any other young gay men, and nobody calls bullsh*t. The only relevant inquiry for a proposed criminal law is, will it PREVENT and/or DETER crime. If not, then it’s just liberal, constitutionally-dubious, legislative fluff. But in our politically correct society we are forced to entertain the pretense that laws like these would have saved Matthew’s life. Sorry, folks, not even the most draconian, medieval sentencing law imaginable would have saved his life. That’s the truth. But as always, with liberals, no sincere tribute to the tragic loss of a young gay man is complete without a legislative crusade to go with it.
Comment by Sean A — May 4, 2009 @ 4:15 pm - May 4, 2009
I can respect the argument you are making, Dan. I remain on the fence myself, not seeing much from either side “fleshing” out their reasoning. By that I mean not just pretty words but actions. I see much hypocrisy from both sides and frankly do not trust any of them. Right now I really do not trust the GOP because yes, I do believe that their opposition is motivated by anti-gay animus and not true convictions. They have made zero effort to remove all hate crimes laws and only seem to take up the mantle of defending the Constitution when gays are involved. Some Republicans aren’t even very coy about this, giving the excuse that hate crimes laws for race, for example, differ than those for sexual orientation because the former is inherent while the latter is not in their view. This of course ignores religion, which there is no dispute is definitely a choice. Until I see something more coming from real principles by Republicans on this I do not believe a word of what they are saying. Of course, that does put me in the uncomfy position of saying the same about the Dems. Pure unadulterated partisanship is all I see in this from both sides, not anything coming from true concerns about Constitutional process or freedoms.
Hilton is a putz. He was a putz before Prejean and if anything he is even more of a putz now. He can wax gossipy about Prejean all he likes but his opinions about the Constitution have about as much to do with reality as the genital excretions he draws on purloined photos at his blogs.
Comment by John — May 4, 2009 @ 4:19 pm - May 4, 2009
Personally, as a gay man, I don’t think Rep. Foxx should have apologized. Everyone on the left is trying to make Matthew Shepard out to be some kind of saint, but his life was far from saintly.
For starters, he was a drug addict. Secondly, he was in the wrong place at the wrong time. Thirdly, as anyone in my generation knows, if you don’t want trouble then don’t go out looking for it.
And for all you libtards out there who want to brand me as “self-loathing,” then let me ask you this – would you have even cared about Shepard’s death if he were straight and his two perps were gay?
Think long and hard about it before you answer. After all, that’s what equality is all about, right?
You live by identity politics, you die by identity politics.
Regards,
Peter H.
Comment by Peter Hughes — May 4, 2009 @ 5:02 pm - May 4, 2009
“The only relevant inquiry for a proposed criminal law is, will it PREVENT and/or DETER crime.”
Agreed, so where do you stand on capital punishment?
“would you have even cared about Shepard’s death if he were straight and his two perps were gay?”
Of course, murder is murder. But then again, I don’t support hate crimes laws for anyone. What was alarming about the Shepard case was the brutality and the fact he was left hanging to die. That in itself, to me, warrants the maximum punishment.
I do though, support people maturing the the level that terms like “libtard” are left behind in the sandbox.
Comment by a different Dave — May 4, 2009 @ 7:25 pm - May 4, 2009
#17: “Agreed, so where do you stand on capital punishment?”
Where do I stand on capital punishment? Hmmmmm. Preferably about a foot to a foot and a half away from that big switch on the wall so I don’t blow my cue at straight-up Midnight. Say g’nite, Mumia!
Comment by Sean A — May 4, 2009 @ 9:52 pm - May 4, 2009
16: Were you aware he was beaten and raped while in high school? Friends and family reported he became prone to depression and panic attacks; some friends think it was because of these issues he became involved in drugs. So, no, this kid wasn’t perfect, but in everything I’ve read about his case and his history, it doesn’t appear that he did anything to hurt others because of his problems, let alone warrant what those 2 guys did to him. I doubt if he went out looking to have this done to him; if anything it was McKinney and Henderson who supposedly were looking for a gay man to attack that night. Even the then-police chief of Laramie believes that anti-gay sentiments were a motive for the attack. If that’s too be believed, then it’s just private thought that’s at issue here, but thought turned action/crime that’s the difference.
Virgina Foxx has every right to vote as she wants on the hate crimes bill and express her opinion on the logical reasons for her vote and for that she doesn’t have to apologize. It’s thoroughly correct though to question and denounce what she said on the House Floor: An “unfortunate incident” or “hoax” is not being brutally attacked and murdered by 2 individuals.
17: Thank you for the comment about name calling; words like that are regularly thrown out by a few people who post on here and it doesn’t further any kind of political discourse/discussion
Comment by Kevin — May 4, 2009 @ 10:15 pm - May 4, 2009
#17-18: Okay, let’s take your collective arguments on. First ADD:
“What was alarming about the Shepard case was the brutality and the fact he was left hanging to die. That in itself, to me, warrants the maximum punishment.”
So you would punish perps equally for the same crime, no matter if it was a so-called “hate crime” or not? (You see, to me ALL crimes are hate crimes, regardless of age/gender/color/race/creed/orientation.)
If so, then you would surely demand the highest punishment for the perps in the Jesse Dirkhising case. In case you hadn’t heard, Dirkhising was a 13-year-old boy whose assailants sodomized him with three fingers, a penis, a frozen banana, and a urine enema laced with the sedative drug amitryptiline. See story here:
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=29026
Brutal, wouldn’t you say? Definitely.
Yet you will never hear much about Jesse Dirkhising. Why? Because Dirkhising was straight – and his two perps were gay men in their 20s and 30s.
According to Wikipedia, in the month after Shepard’s murder, LexisNexis recorded 3,007 stories about his death compared to only 46 in the month after the Dirkhising murder. Not to mention the fact that within 48 hours of the attack on Mr. Shepard, GLAAD representative Cathy Renna had flown to Wyoming to coordinate media interviews, delivering the organization’s spin that a “climate of hate” fostered by conservative activists had caused Mr. Shepard’s death.
Yet to this day, nobody cares about what happened to Dirkhising. Maybe it’s because his death doesn’t fit the liberal media template.
Now for Kevvie:
“An “unfortunate incident†or “hoax†is not being brutally attacked and murdered by 2 individuals.”
No, a hoax is when something is presented in an untruthful light when the facts don’t justify it. And in this case, presenting Matthew Shepard as some kind of victim of circumstance is way off base.
Shepard was not just “minding his business” in the bar that night. He was a druggie who needed a fix.
On ABC’s “20/20″ back on November 26, 2004, host Elizabeth Vargas ran a report in which a number of figures tied to the Shepard case – including the prosecutor – were interviewed, and made a credible case that Shepard was targeted by Aaron McKinney and Russell Henderson not because of anti-gay sentiment, but because McKinney was high on methamphetamines, giving him unusual violent tendencies as well as a desire for cash to buy more drugs.
Vargas not only found that a meth high can lead to the kind of extreme violence perpetrated against Shepard, but that McKinney had gone on to similarly attack another man – who was STRAIGHT – and causing a skull fracture, very soon after his attack on Shepard. Additionally, McKinney’s girlfriend and another friend of McKinney’s even claimed that McKinney himself has bisexual tendencies, although McKinney himself denied it.
And in case you need a link, here it is:
http://abcnews.go.com/2020/Story?id=277685&page=1
So as far as these two perps committing a so-called “hate crime,†it looks as though that explanation doesn’t wash. Shepard was not targeted because of his orientation; he was simply in the wrong place at the wrong time.
Granted, Shepard’s death was brutal and his perps deserve to die. I would not equivocate on that one bit. I am a proud supporter of Justice For All, the victims rights group, and I am a firm believer in capital punishment. Yet to twist the facts to create the myth that Shepard was some sort of choir boy makes a mockery of both his life and his death.
Maybe it’s becase I’m older and wiser than some of you, but I’ve always gone by the maxim to not go looking for trouble. The difference between me and a crime victim is that I’ve got the solution cocked and loaded in my right hand.
Regards,
Peter H.
Comment by Peter Hughes — May 5, 2009 @ 10:47 am - May 5, 2009
“So you would punish perps equally for the same crime, no matter if it was a so-called “hate crime†or not? (You see, to me ALL crimes are hate crimes, regardless of age/gender/color/race/creed/orientation.)
If so, then you would surely demand the highest punishment for the perps in the Jesse Dirkhising case.”
Yes I would, and yes I have heard of that case because the haters trot it out every time they have the need to prove how evil homosexuals are.
The men that did it should be/have been punished to the full extent of the law. See, one difference is that I’ve never heard anyone say that all str8s are murderers who would hang their victims on a fence. On the other hand I have seen Jesse’s murderers held up as an example of the potential perversion in all gay men. So if you are truly concerned about equal punishment for equal crimes you will also spend time fighting the lies from the right (Worldnet daily for example) about gay men. And stop your ignorant accusations that Jesse’s case was never talked about by liberal or gay press. As a matter of FACT it was in gay press that I first read about it and the article was quite clear that the authors thought it was a heinous act. Yeah, Shepard’s case has been blown all out of proportion but that in NO WAY indicates a lack of concern for any other murder whether the act is committed by a str8, gay or asexual person. To claim so is a good sign of complete brainwashing.
Again I am totally appalled at how some “gay conservatives” have totally swallowed the “gays are evil” line. Voting Republican does NOT indicate self-loathing, being conservative does NOT indicate self-loathing but mirroring the pure HATE of the extreme right indicates that your illness is far beyond self-loathing. Using Worldnet Daily for anything but as an example of what is horribly wrong with parts of the right is sickening. That’s as bad as quoting HuffPo in an analysis of the Bush administration.
Comment by a different Dave — May 5, 2009 @ 2:19 pm - May 5, 2009
#21 – Ok, ADD – please point out EXACTLY how the World Net Daily story (which can be corroborated with Wikipedia) is incorrect. Show me exactly which parts are not true.
This is a (pardon the pun) straight news story – you cannot distort the facts of the case. WND used the plain facts to report the story. You can’t say the facts are wrong.
Also, do you consider ABC News to be part of “the lies of the right?” Or Wikipedia? If so, then you have serious issues.
And I never said gays were evil. Some of my best friends are gay. For that matter, so is my Hubby.
“Yeah, Shepard’s case has been blown all out of proportion but that in NO WAY indicates a lack of concern for any other murder whether the act is committed by a str8, gay or asexual person.”
You just proved my case, ADD. If it weren’t for the liberal biased media in this country, more people would have known about the Dirkhising murder. Unfortunately, it didn’t fit their template. The Shepard story merely reinforces the gay victimhood status that you and your ilk on the left love to wallow in.
Funny how you think I have a sickness. I’ve often heard that it is liberalism which is a mental disorder.
Checkmate.
Regards,
Peter H.
Comment by Peter Hughes — May 5, 2009 @ 2:47 pm - May 5, 2009
The widespread wingnut objection to hate crime laws arose only when sexual orientation was added. Prior to that, there wasn’t a peep from the wingnuts. Now that there is, the self-hating “gay patriots” have climbed aboard the anti-gay train.
Comment by Magic Dog — May 5, 2009 @ 7:12 pm - May 5, 2009
#23
PeeJ,
You and reality don’t speak much do you? I’ve no idea when the Dick Greyson fans got interested in Hate Crimes, but for conservatives, it’s been an issue for a long time.
Comment by The Livewire — May 7, 2009 @ 7:43 am - May 7, 2009