Hate-crime laws actually retard civil rights progress

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A wise man once wrote that sometimes the progressive is he who finally realizes he is moving forward on the wrong road and turns back. For the past couple of years, culminating with the Buford O. Furrow Jr. shootings near Los Angeles, a movement has been afoot to expand hate-crime legislation. Hate crimes are defined as anything from murder to assault against a citizen because of his or her race, religion, gender, national origin, or sexual orientation. Although such a movement appears noble, both Jews and civil libertarians should ardently oppose such a lure. Turning away and opposing this temptation will make progressives of all of us.

Perhaps the most recent and well publicized violent incidents against Jews and other minorities are the North Valley Jewish Community Center shootings, the murder– by the same assailant — of a Philippine postal worker, the police beating of Rodney King, the Matthew Shepard murder, the murder of James Byrd in Texas, and the recent shootings of Jews, African-Americans and Asians in the Midwest.

Before we look to expanding the federal law to investigate motives of hate, we should note that each and every act of violence mentioned above was already against the law and each and every assailant was brought to justice, or would have been but for the instance of suicide, under existing laws. Expanding federal jurisdiction to investigate motive, i.e., investigate that which the assailants read, said, and who they associated with would not only make it more difficult to prosecute the assailants, it would breach fundamental notions of American justice and the Judeo-Christian notions that inform our jurisprudence.

As constitutional scholar Daniel Troy points out, it was an advancement of some note that our legal system was grounded on the basis that all — citizen, criminal, victim, it makes no difference — were created equal in the eyes of God and thus, to be treated equal by the hands of government. It took many years for our laws to fully comply with this notion as our Civil War and civil rights history makes clear, but the ideal was always the same: equal treatment for all, no preferred classes or castes. As Justice Antonin Scalia recently pointed out, "In the eyes of government, we are just one race here. It is American." This echoes the same exact sentiment his late colleague Thurgood Marshall stated some years ago when he represented the NAACP: "I want to put myself out of business. I want to get things to a point where there won't be an NAACP — just a National Association for the Advancement of People."

Expanding hate-crime legislation turns back Marshall's clock and the civil rights movement's advances. By classifying certain victims as deserving special treatment by adding federal laws upon which to prosecute their assailants — when the forbidden acts are already illegal — sets up a preferred class, race and caste of citizen. It also further divides this country along the balkanized lines that have riven our public discourse and it could have the undesirable effect of creating more of that which we'd like to eliminate: racial animus.

From the beginning, our legal system was to embody the Judeo-Christian notion that we were all equal in our inequality before God and thus should be equal in our relationship to one another and to the government. The Bible (which informs much of our legal code, the prohibition against murder being one example) states that punishment should be "life for life, an eye for an eye, tooth for tooth." This was not, Troy reminds us, a call for retributive justice. Rather, it was an advancement of the notion that punishment should be equal and proportional — it was an advance beyond the Hammurabi Code, which punished people based on such things as wealth and caste, such things as the victim's status.

Slavery was regarded a "peculiar institution" precisely because we looked at the victim's status: if the victim was white and the assailant a black slave, the criminal code would be brought to full fore. If the victim was a slave and the assailant was white, there would be no prosecution. The post-Civil War amendments, the KKK Act, and the civil rights movement were correctives to such "peculiarities." One law, regardless of victim status, irrespective of assailant status, was our creed. This was also Martin Luther King Jr.'s wish and Marshall's hope for unemployment.

Historian Arthur Schlesinger Jr. got it right when he wrote that if we are ever to truly realize our unique national motto, "Out of Many, One," the motto that resulted in our very advancement in this country, we will have to reject the "militants of ethnicity who contend that the main objective of public education should be the protection…and perpetuation of ethnic origins," which "nourishes prejudices, magnifies differences, and stirs antagonism."

Aside from the further racial and ethnic divisiveness the expansion of hate-crime legislation would create, there remains the very serious issue of the First Amendment. Do we, who have steadfastly defended the rights of freedom of speech, religion, conscience, assembly, want prosecutors and judges looking into what alleged criminals read, what faith they teach and practice, what people they associate with? Was this not exactly what we lobbied against during the years when Tail-Gunner Joe stalked the land?

We need to vigorously enforce the criminal laws currently on the books, state and federal. No murder, no assault should go unpunished–not against anyone, white, black, female or homosexual. Not against any human being. All crimes, against all citizens, are crimes of hate. Searching for motives and elevating certain victims to preferred status will turn the clock back on law enforcement, civil liberties, and the equality-based society we are so close to achieving after so many years of strife. In the end, no one said it better than Thomas Jefferson: Only the acts of the body, not the operations of the mind, can be subject to the coercion of the laws.