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Law
The Hate Debate
The controversial hate crimes bill is back, with a tough issue for the Legislature: Can a law punish thought? Should it?
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The U.S. Supreme Court agrees that hate speech by itself cannot be punished. In R.A.V. v. St. Paul, a 1992 case, the court struck down a city ordinance prohibiting hate speech, saying, among other things, that a burning cross is an expression of a political belief and as such is protected by the First Amendment. But the court has also upheld punishment-enhancement laws like the proposed Byrd bill. In Wisconsin v. Mitchell, a 1993 case, Chief Justice William Rehnquist wrote for a unanimous court that while the thought itself may be protected, once it became the motive for a crime and the crime was put into action, the thought became something more than just an idea. It became active discrimination. Rehnquist drew an analogy to unemployment cases. The boss can dislike someone for racial or religious reasons—the thought is protected from a discrimination lawsuit—but to fire the person for those reasons would not be protected. Ironically, the Wisconsin case involved a conviction under the hate crimes statute for a black kid who led an attack on a white kid.
Yet proving that the forbidden thought exists may cause some problems. "Imagine someone is charged with a hate crime against a gay person," says University of Texas law professor Douglas Laycock. "Can the prosecutor bring up where the defendant goes to church, what kind of sermons he is listening to, how his church feels about homosexuality?" Presumably the answer is no, unless the prosecutor can show some relationship between those beliefs and the actual attack. The courts have made some distinctions here: In a Texas case, circumstantial evidence was good enough to prove a hate crime had been committed when an attacker called his victim a "nigger" before, during, and after beating him up and called people who tried to help the victim "nigger lovers." But the U.S. Supreme Court has upheld a lower court decision that membership in the Aryan Brotherhood was not by itself enough to establish that a white defendant's attack of a black person was racially motivated.
The equal-protection argument against the hate crimes bill is based on the fact that the bill provides some citizens with greater protection—that is, the longer prison sentence provides a greater deterrent to spitting on an African American than on a Vietnam veteran. The harsher penalty suggests that a greater value is being placed on the loss incurred by certain victims. Inevitably, the critics ask, if a man and his wife walk down the street together and are attacked by a misogynist, does the woman's injury count for more than the man's? A similar argument was made during a House debate on the hate crimes bill in 1999 by Representative Suzanna Gratia Hupp of Lampasas, and it was no law school hypothetical: Her parents were killed in the tragic 1991 shooting at the Luby's Cafeteria in Killeen by a man apparently acting out of a hatred of women. But supporters of the bill pointed out that the Legislature makes distinctions between victims all the time. The state's definition of injury to a child makes it a more serious offense to injure a child who is 6 years and 364 days old than a child who is 7 years and 1 day old. Assaulting a public servant is a more serious offense than assaulting someone who bumps into you on the street.
Of course, if the Byrd bill singled out specific groups for protection—say, African Americans, Jews, and homosexuals—the equal-protection concerns of the Fourteenth Amendment would come into play. But the Byrd bill's authors avoided that trap. It protects victims singled out because of religion, not Jewishness. Fundamentalist Baptists who are terrorized by pro-choicers would get the same protection as Jews assaulted by members of the Aryan Brotherhood.
Why shouldn't the law simply define a hate crime as one committed against a member of any group the perpetrator despises? That was the approach of the current Texas hate crimes law, passed in 1993 in response to the defacement of synagogues. The law enhanced penalties for crimes targeting victims identified by membership "in" a group. This presumably would have covered the Vietnam vet who was spat on or student athletes who were targets at the Columbine shooting and who a legislator wanted to protect in 1999. But by incorporating any group, the law became so vague that prosecutors considered it unenforceable. Each subsequent session, proponents have sought to clarify which victims are protected: those selected for their race, religion, or sexual orientation. The bill recognizes these broad categories, not specific groups within them such as African Americans, Jews, and homosexuals. If militant Jews were to terrorize a fundamentalist Baptist, they would fall under the proposed hate crimes law—as they should. The final reason for limiting the categories to race, creed, or sexual preference is that hate crimes most often involve these categories. It's not that high school athletes don't deserve protection; it's that they historically have not needed it.
In contrast to the philosophical battle over the hate crimes bill, the political issue is simple. Most of the opposition comes from Republicans, and for many Republicans, the inclusion of sexual orientation is the main reason for opposing the bill. The more-conservative element of their party opposes legal rights for homosexuals and worry that by implicitly singling out gays and lesbians for protection, the hate crimes bill could become the first step in a landslide of gay rights and recognition. A vote for hate crimes legislation could be politically perilous in a Republican primary. Philosophical issues notwithstanding, if sexual preference were taken out of the bill, leaving only race and creed, the law would likely pass.
The Byrd bill is already ahead of where it was last year. It has been approved by the same Senate committee that killed it in 1999 (thanks in part to a change in the committee makeup from a four-to-three Republican majority to a four-to-three Democratic majority and in part to the absence of presidential politics). The Byrd bill is expected to pass the House, as it did in 1999, and its fate will rest with whether Senate sponsor Rodney Ellis, a Houston Democrat, can coax five or perhaps six of his Republican colleagues to vote with him. It is going to be close, and even if the bill were to pass, it must avoid a veto by Governor Rick Perry, who faces a potential Republican primary challenge from U.S. senator Kay Bailey Hutchison in 2002.
As for the legal arguments, both sides are absolutely convinced that they are right. Where the proponents have the edge is in symbolism. That case was made most eloquently by state representative Paul Sadler of Henderson during the 1999 House debate. "There are votes and bills that tell the world who we are, what we value, what we cherish, what we believe in . . . We can't end hatred and violence and bias and prejudice, but it is our duty to punish conduct that we find reprehensible, conduct that we believe is wrong. And who of you will stand and tell me that conduct based on hatred and bias and prejudice is anything but wrong."
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