First published in the Richmond Times-Dispatch on July 7, 2007
There have been several attempts to expand federal hate-crime statutes, both to incorporate sexual orientation as one of the specified classes in the law and to increase federal involvement in the investigation and prosecution of these types of crimes. Each time the proposed bill has failed to pass.
The latest iteration of this legislation is the Local Law Enforcement Hate Crimes Prevention Act of 2007, approved by the U.S. House of Representatives on May 3 and now under consideration by the Senate.
One might oppose this bill for the wrong reasons, motivated by an animus against gay and lesbian Americans that refuses to acknowledge them in the law.
One might also oppose this bill for the right reasons, supporting the dignity of gay individuals but objecting on constitutional, legal, and philosophical grounds.
Hate-crime laws at the federal level violate the constitutional division of government by federalizing crimes that should be handled by state authorities.
Legal scholar Timothy Lynch of the Cato Institute told members of the House Judiciary Committee in April that the proposed law expands federal authority in an unconstitutional manner. He cited Chief Justice John Marshall, who observed that Congress had "no general right to punish murder committed within any of the States" and that it was "clear that Congress cannot punish felonies generally." Over time, however, Congress asserted that the Commerce Clause of the Constitution granted it the authority that Marshall said did not exist. Regarding this development, Lynch testified:
This Congress should not exacerbate the errors of past Congresses by federalizing more criminal offenses. The Commerce Clause is not a blank check for Congress to enact whatever legislation it deems to be 'good and proper for America.' The proposed hate-crimes bill is simply beyond the powers that are delegated to Congress."
From a legal standpoint, such a federal law would be redundant, at best.
One can understand if the call for hate-crime statutes comes from evidence of bad enforcement of the laws already on the books. We know that, in the past, police and prosecutors have been willing to look the other way when victims came from disfavored groups.
But as senior editor Jacob Sullum of Reason magazine pointed out in a recent column, "Unlike the situation in the Jim Crow South, there is no evidence that state and local officials are ignoring bias-motivated crimes."
Indeed, as Lynch testified, "all of the violent acts that would be prohibited under the proposed bill are already crimes under state law." Referring to the murders of James Byrd in Texas and Matthew Shepard in Wyoming, he added, "The individuals responsible for those murders were quickly apprehended and prosecuted by state and local authorities. Those incidents do not show the necessity for congressional action; to the contrary, they show that federal legislation is unnecessary."
Philosophically, passing this law would be wrong because hate-crime laws, however well-intentioned, are feel-good statutes whose primary result is punishing thought, violating our freedoms of speech and of conscience.
Wayne Dynes, editor of the Encyclopedia of Homosexuality, has noted that hate-crime laws, to be just, must be content-neutral. Yet in judging individual cases, he said, we would have to "get into the question of whether some hate" -- his example was that directed at an evil dictator -- "is 'justified' and some is not." He concluded that hate-crime prosecutions "will be used to sanction certain belief systems -- systems which the enforcer would like, in some Orwellian fashion, to make unthinkable. This is not a proper use of law."
Hateful thoughts may be repugnant to us, but they are not crimes in themselves. And crimes that follow hateful thoughts -- whether vandalism, assault, or murder -- are already punishable by existing statutes.
Passing this bill would also be wrong because it suggests that crimes against some people are worse than crimes against others. Hate-crime laws set up certain privileged categories of people, defined by the groups to which they belong, and offers them unequal protection under the law.
Beyond this philosophical objection, however, federal hate-crime laws -- those on the books now, those proposed -- are outside the scope of the authority granted Congress by the Constitution. New laws of this type should be rejected; older laws should be repealed.