IGF CultureWatch

For more than a decade, liberal lawmakers have argued that federal "hate crimes" laws should be expanded to include sexual orientation among the categories that have been protected since the first such statute was enacted in the 1960s.

On Oct. 8, the House of Representatives approved the Matthew Shepard Hate Crimes Prevention Act, named for the young gay Wyoming man who was tortured and killed by thugs who now wallow in prison under life sentences. The U.S. Senate passed its version earlier this summer, and the two versions were reconciled by a conference committee.

In both the House and the Senate, this proposed hate-crimes law had been incorporated, with no hint of germaneness, into each chamber's Defense Authorization bill (numbered HR 2647 and S 1390, respectively). The latest version was passed on by the House on a 281-146 roll-call vote. Senate action will be virtually pro forma and is expected to take place soon.

Arguments against hate-crime laws often focus on the "thought crime" aspects of such legislation - noting that a criminal convicted of assault will have his punishment enhanced based upon words he said before, during, or after committing the act.

As retired Hunter College Professor Wayne Dynes once noted, hate-crime laws, if they are to be applied in a constitutional manner, must be content-neutral. He gave this example: "Countless numbers of people, aware of the unspeakable atrocities under his leadership, hated Pol Pot. This hate was surely well warranted. If one of the Pol Pot haters had killed him, would this be a hate crime? Why not?"

Dynes, editor of the Encyclopedia of Homosexuality, added: "In seeking to exculpate the killer, we would get into the question of whether some hate 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."

What is particularly disturbing about the Matthew Shepard Act, however, is that this bill federalizes crimes that properly belong under state or local jurisdiction. It signifies creeping encroachment of federal law on state prerogatives and the dulling of the distinction between the central government in Washington and the various state governments.

Previous federal hate-crime statutes were written when state and local authorities often looked the other way if crimes of violence were committed against members of minority groups. These laws were narrowly focused and meant specifically to prosecute crimes against victims engaged in a federally protected civil-rights activity (such as helping to register African-Americans to vote).

The current bill says the federal government can step in to prosecute a case if "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence." In other words, if a U.S. attorney dislikes an acquittal or the punishment of someone convicted under state law, he can re-open the case as a federal matter.

By Orwellian logic, this kind of re-prosecution does not violate the Constitution's prohibition on double jeopardy, because the same act becomes two separate crimes - one state and one federal.

Violent crime against any person is deplorable. Fortunately, state and local governments no longer routinely look away when crime victims belong to socially disdained groups. Hateful thoughts may be disagreeable, but they are not crimes in themselves. The crimes that result from hateful thoughts - whether vandalism, assault, or murder - are already punishable by existing statutes.

There is no good reason to expand the reach of the federal government to fight "hate crimes." That would do violence to the Constitution itself.

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.

Originally published February 9, 2001, in the Fredericksburg (Va.) Free Lance-Star under the title "Crimes Against Nature law allows Virginia police to target gays."

WHEN REPUBLICANS DISCUSS the proper role of government, most agree that it should be low-cost, limited in scope, and nonintrusive in the lives of citizens.

Rank-and-file Republican voters, for the most part, stand by the words of the late U.S. Sen. Barry Goldwater:

"I have little interest in streamlining government or in making it more efficient, for I mean to reduce its size. My aim is not to pass laws, but to repeal them. It is not to inaugurate new programs, but to cancel old ones that do violence to the Constitution, or that have failed in their purpose, or that impose on the people an unwarranted financial burden.

"I will not attempt to discover whether legislation is 'needed' before I have first determined whether it is constitutionally permissible. And if I should later be attacked for neglecting my constituents' 'interests,' I shall reply that I was informed their main interest is liberty and that in that cause I am doing the very best I can."

Do Virginia's Republicans live up to this Goldwaterite ideal? Not always, but the impulse remains. Evidence for this is found in a recent poll from an unlikely source on an unlikely topic.

On Jan. 16 and 18, Rasmussen Research, an independent polling organization, conducted a statewide survey to determine knowledge and attitudes about Virginia's Crimes Against Nature statute. This statute forbids certain intimate sexual activity, even in private and even for married couples. To be blunt, the law prohibits oral sex for any Virginian, whether they are gay or straight, married or single.

The law is enforced selectively. It is used to target gay men in public places who discuss having sex. It is used as a fallback when prosecutors cannot prove that a sexual assault has taken place, so the alleged perpetrator is accused and convicted of consensual sodomy instead.

And it is used as a pretext to deny child custody to gay or lesbian parents-for example, in the case of Richmonder Sharon Bottoms, which achieved nationwide infamy when the government forcibly took her son, Tyler, from her because she is a lesbian.

The Rasmussen Research poll found that, across the board, Virginians want the CAN law repealed. Large majorities in almost every conceivable category say they want to see the law eliminated, that they want their legislators to vote for repeal, and that legislators who support repeal will not be adversely affected at the ballot box.

This is true for Democrats, Republicans, and independents; it is true for men and women; it is true for whites and African?Americans.

In this random survey, Republicans showed clear consistency in their view that government should stay out of the private lives of citizens.

Asked "Should it be against the law for an unmarried man and an unmarried woman to have sex in the state of Virginia?" 67.4 percent of Republicans answered "no," compared to 71.1 percent overall.

Asked "Should it be against the law for a married couple to have oral sex in the privacy of their own home?" 78.9 percent of Republicans answered "no" (81.7 percent overall).

Asked "Currently, according to Virginia law, it is illegal for consenting adults to have oral sex in the state of Virginia; a proposal has been made to eliminate the Virginia law; should the Virginia law be eliminated?" 61.4 percent of Republicans answered "yes" (65.2 percent overall).

Now, some members of the General Assembly say privately that they would support the repeal of the CAN law, but that they would have hell to pay on Election Day if they did. This is simply not true.

Survey participants were asked:

"Suppose your representative in the House of Delegates or the State Senate voted to eliminate the Virginia law. Would that make you more likely to vote for that person, less likely to vote for them, or would it have no impact on your vote?" Overall, 82.9 percent of Virginians said that they would either be more likely to vote for that representative, or it would have no impact on their vote; 83.5 percent of Republicans answered the same way, as did 77.5 percent of Democrats.

In other words, state legislators who vote to repeal the Crimes Against Nature law will have little or nothing to worry about in their re-election bids. The fear they cite is a red herring.

Republicans are part of a broad "leave us alone" coalition that wants the government to stop breathing down our necks. As speaker of the House of Delegates Vance Wilkins told The Washington Post, "It's simply a matter of individual liberty versus not having the government be a nanny." We don't trust the government to run our businesses, and we certainly don't trust it to run our sex lives.

The spirit of Barry Goldwater lives on in Virginia.

First appeared August 11, 1999, in the Wall Street Journal under the title "New Jersey Supreme Court Ruling on Boy Scouts Threatens Freedom for All - Including Gays."

IN A 30,000-PLUS-WORD DECISION, the New Jersey Supreme Court has ruled that the Boy Scouts may not exclude gay members from participation in the organization. Because the New Jersey court's ruling conflicts with others (including one made in March 1998 by the California Supreme Court), this issue almost certainly will be reviewed by the U.S. Supreme Court. For this reason, the New Jersey decision deserves scrutiny as well as criticism.

Three points deserve comment. First, this decision erodes freedom of association. Second, it further expands the definition of "public" at the expense of what is "private." And third, while the Court's written opinion offers a strong argument for why the Boy Scouts should voluntarily change their policy, it fails to demonstrate why the government should force them to do so.

One of the things I learned about as a Boy Scout in the early 1970s was the importance of freedom, as embodied in the U.S. Constitution and the Bill of Rights. The Boy Scouts asserted that, were the organization forced to change its membership (and hiring) criteria, its First Amendment rights to free speech, religious liberty, and association would be violated. The New Jersey Supreme Court ruled, incredibly, that "application of the [state's] Law Against Discrimination to Boy Scouts of America does not infringe on its First Amendment rights." Of course it infringes on those rights -- the question is whether such infringement is justified. The Garden State's Supreme Court argues that it is, and that the state's non-discrimination law trumps the First Amendment.

Freedom of association is one of our most precious rights. The New Jersey Supreme Court ruling threatens all of us who want to set standards for our organizations -- including gay men and lesbians.

The court's decision -- now limited to New Jersey, but with foreseeable national ramifications --undermines the right of gay men and lesbians to seek and maintain "queer-safe space" such as social clubs, fraternities and sororities, and social service organizations like Washington, D.C.'s Sexual Minority Youth Assistance League (SMYAL). If the Boy Scouts are not free to set their own membership standards -- however "vague" they might be (a key point in the New Jersey court's criticism) -- shouldn't these gay and lesbian organizations also lose their freedom to do so? Very few gay teenagers are likely to attend Saturday afternoon rap groups to discuss personal problems with their peers if they know that they might be forced to share this private space with heterosexual teens as well.

Diluting freedom of association makes it harder to combat government-based anti-gay discrimination. Respect for freedom of association, on the other hand, is the linchpin in persuading the U.S. Supreme Court to reverse its 1986 ruling in Bowers v. Hardwick, which gave state governments the authority to regulate our most intimate associations, sexual relationships. At the same time, the right to associate with whom we wish, when we wish, where we wish, will be an important factor in overturning the anti-gay Defense of Marriage Act and various state laws prohibiting same-sex marriage.

My colleague, Odell Huff, suggests that the New Jersey court's expansive definition of "public" will have detrimental effects on all citizens. "We should be protecting the private against the intrusion of the 'public,'" said Huff, vice president of Gays and Lesbians for Individual Liberty (GLIL). He adds: "Of course, we should be wary of any organization, which relies heavily on taxpayers' money to subsidize its activities, asserting a right to discriminate. But the Boy Scouts' reliance on government varies widely from place to place, and in most cases it provides predominantly 'private' space." Moreover, if taxpayers object to the Boy Scouts' use of their money in a "discriminatory" manner, the better course would be to withdraw their money, rather than to circumscribe the Scouts' freedoms of association, expression, and religion.

British scholar Nigel Ashford, writing in the Independent Gay Forum, argues a similar point, noting that Britain and the United States both face the same problem. "The distinction between private and state (usually expressed as 'public') is extremely important in a free society. Unfortunately the definition of the private has become narrowed to include only the person's home, and sometimes not even that. The distinction between private and public should be ownership, not who goes there. 'Public' should mean government owned, not open to the public, as in a bar or club." Ashford goes on to say that "a wide definition of private and a narrow definition of public (state) is the best protection for gays. The alternative is that government can legislate and interfere in areas open to the public," such as bars that cater to a gay clientele, erotic video stores, or even social clubs that meet in private homes. He concludes: "Those who control the power of the state will use it for their own purposes and preferences." A minimization of the private that expands the "public" hurts all of us, gay or straight.

That said, one should not conclude that the Boy Scouts' policy of excluding gay boys and men from their ranks deserves our approval. It does not. The New Jersey Supreme Court documents quite extensively how the Scouts' policy is contradictory and may, in fact, be harmful to the organization itself, as well as to the young men it aims to serve. The policy is archaic and bigoted and should be changed.

Still, a self-contradictory and wrong-headed policy does not require (nor deserve) the action of the state to correct it. Many commentators have noted that the Girl Scouts have chosen to practice non-discrimination in regard to sexual orientation. Lesbians are free to participate in Girl Scout programs. Yet no government action compelled this change in policy. The Girl Scouts' leadership acted on its own.

That is why we should encourage the efforts of those individuals and groups, such as gay former Scouts, who are trying to persuade the BSA to change its membership requirements voluntarily. Their attempts at moral suasion deserve commendation and support.

While on the surface it may appear that gay citizens have won something at the New Jersey Supreme Court, since the rights of all Americans are threatened, gay people have the most to lose.

First appeared October 14, 1998, in the Houston Chronicle; has been read into the Congressional Record.

THE WICKED MURDER OF MATTHEW SHEPARD by two thugs, assisted by two equally contemptible accomplices, has resurrected a debate about the need for hate-crime laws.

Shepard, an openly gay University of Wyoming student who had been widely praised for his talents, ambitions and personality, last week was beaten senseless and left for dead, tied up like a scarecrow along a fence on a little-traveled country road. Miraculously, he was found by passers-by many hours after the attack, still struggling for life when he was rushed to a hospital in Fort Collins, Colorado, where he died Monday while on life support.

Local law enforcement officials in Laramie, Wyoming, where the crime took place, quickly arrested the alleged perpetrators�two men who performed the assault and two women who helped them hide their deed�and it looks like they will be punished to the full extent the law allows if they are convicted. With Shepard's death, they face a possible death sentence.

Laramie, a university community of 27,000 people, is feeling both shame and outrage, a sentiment shared by all right-minded people throughout the country, indeed around the world. News of this brutal assault has appeared everywhere in print and broadcast media.

The crime against Shepard has renewed calls for passing hate-crime legislation, both in Wyoming and nationwide. Wyoming Gov. Jim Geringer and President Bill Clinton have said that this attack shows the need for such laws.

This would be a mistake. It would be a mistake because hate-crime laws, however well intentioned, are feel-good laws whose primary result is thought control, violating our constitutional guarantees of freedom of speech and of conscience. It would be a mistake because it suggests that crimes against some people are worse than crimes against others. And it would be a mistake because it uses a personal tragedy, deeply felt by Shepard's family and friends, to advance a political agenda.

Hunter College Professor Wayne Dynes, editor of the Encyclopedia of Homosexuality, notes that hate-crime laws, if they are to be applied in a constitutional manner, must be content-neutral. He notes this example: "Countless numbers of people, aware of the unspeakable atrocities under his leadership, hated Pol Pot. This hate was surely well warranted. If one of the Pol Pot haters had killed him, would this be a hate crime? Why not?"

Dynes adds: "In seeking to exculpate the killer, we would get into the question of whether some hate is 'justified' and some is not." He concludes 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."

Under our system of justice, everyone is equal before the law. Those accused of crimes are entitled to certain constitutional protection, which we must cherish, and the victims of a crime�whether a Bill Gates or the poorest street-sweeper in a slum�are entitled to the same respect. (In the Middle Ages, the law required a greater punishment for killing a rich man or noble than it did for killing a peasant or a laborer. Our law recognizes no such distinctions.)

So, too, with class- or group-based distinctions. Is it worse to kill a man because he is foreign-born than it is to kill him to steal his car? Is it worse to kill a woman because she is black than because she cut you off in traffic? Is it worse to beat up a fat sissy boy if the bullies think their victim is gay, or if they dislike him because he is fat? Crime is crime; assault is assault. All deserve punishment.

Hateful thoughts may be disagreeable, but they are not crimes in themselves. The crimes that result from hateful thoughts�whether vandalism, assault or murder�are already punishable by existing statutes.

In a speech at the University of Texas last year, libertarian activist Gene Cisewski said: "We should be anti-violence, period. Any act of violence has to be punished swiftly and severely and it shouldn't matter who the victim is. The initiation of force is wrong and it doesn't matter why the mere fact you had a motive is enough."

Cisewski acknowledged the good intentions of those who propose hate-crime laws. He noted that "the reason for the call for (such laws) comes from bad enforcement of the laws." Police and prosecutors have been willing to look the other way when victims came from unfavored groups. Luckily, in the Shepard case, the authorities seem unwavering in their prosecution. This is, unfortunately, not always the case.

The answer, Cisewski suggested, and I agree, is that "we hold every law enforcement official and every court official who administers justice to the standard that every American is guaranteed equal protection under the law."

Hate-crime laws set up certain privileged categories of people, defined by the groups to which they belong, and offer them unequal protection under the law. This is wrong. It is sad to see a young man's personal misfortune used by various special-interest groups to advance such an agenda.

We are all shocked and dismayed by the assault on Shepard. Such brutality cannot, should not be countenanced. Let us not multiply the crimes of his attackers by writing bad law in response.