ST. LOUIS POST-DISPATCH
Thursday, Oct. 15 2009

Hate crimes law promotes inequality and division
By Colleen Carroll Campbell

In America, every citizen is equal in the eyes of the law. But some citizens
are more equal than others.

That's the mixed message sent by the new hate crimes legislation that passed in
the House last week. The legislation changed the definition of a federal hate
crime to cover crimes committed because of a victim's gender, sexual
orientation or "gender identity" — defined as one's "actual or perceived
gender-related characteristics." It also expanded the federal government's
authority to prosecute such crimes if the feds conclude that the states have
not sufficiently punished the perpetrators.

The upshot: Another protected class of victims has been created in America. And
another blow has been dealt to America's bedrock legal principle of equal
justice for all.

Gay-rights activists and their advocates in Congress have labored for more than
a decade to carve out this special protection for gays and lesbians over the
objections of civil libertarians, religious leaders and even some prominent gay
commentators. After failing to sell the idea on its merits, backers recently
tucked it into an unrelated military appropriations bill, thus forcing
lawmakers to choose between supporting the troops and opposing the hate-crimes
provision. The ploy worked, paving the way for expected easy passage in the
Senate and a promised signature from President Barack Obama.

Although advanced through dubious means, hate crime laws like this one often
begin with good intentions. Starting from the laudable if naïve goal of
outlawing hatred, lawmakers designate crimes against some groups of Americans
as more reprehensible than crimes against others if the crimes are motivated by
bias against a protected minority group. Prosecutors then seek harsher
penalties for such bias-driven crimes, assuming they can prove the criminals
harbored hatred in their hearts.

That's a tall order for an overburdened justice system that has enough trouble
detecting and punishing criminal acts, much less policing thoughts and beliefs.
It's also an order ripe for abuse, particularly when it comes to proving and
prosecuting bias against something as nebulous as a victim's "gender-related
characteristics."

It's not hard to imagine the infringements on freedoms of speech, association
and religion that will follow from a law that encourages prosecutors to probe a
defendant's "speech, beliefs, or expressive conduct" for evidence of negative
views about homosexuality. Nor is it difficult to imagine that pastors,
broadcasters and publishers will be intimidated into silence on such topics as
same-sex marriage and homosexual activism for fear of becoming ensnared in the
prosecution of someone who happens to hear their sermons or read their
commentaries before committing a crime. It's a short leap from laws against
hate crimes to laws against hate speech, since both give Big Brother the
authority to decide which opinions are allowed and which are not.

Supporters say such infringements on our freedom are necessary to halt an
escalating epidemic of hate crimes against gays and lesbians. But crimes such
as the murder of gay Wyoming college student Matthew Shepard have been
successfully prosecuted without recourse to hate-crimes provisions. And FBI
statistics from the past decade show no evidence that overall hate crimes or
those related to sexual orientation have spiked. In 1999, crimes related to
sexual orientation accounted for about 16 percent of overall hate crimes. In
2007, the latest year for which statistics are available, they accounted for
16.6 percent.

Although intended to promote equality and tolerance, hate-crimes provisions
such as the ones passed last week only exacerbate social divisions, by
declaring some citizens inherently more deserving of protection — and thus,
more prone to victimhood — than others. Assigning special rights to some
citizens based on their sexual behavior and "gender identity," and special
punishments to others based on their disapproval of the same, may be
politically correct. But equal justice it is not.

Colleen Carroll Campbell is an author, television and radio host and St.
Louis-based fellow at the Ethics and Public Policy Center. Her website is
www.colleen-campbell.com.