The Hate Debate

The controversial hate crimes bill is back, with a tough issue for the Legislature: Can a law punish thought? Should it?

April 2001By Comments

You’ll be hearing a lot about hate crimes in the upcoming weeks. Next to redistricting, it is the most explosive issue before the Texas Legislature, one that could derail the entire session, as it almost did in 1999. This may seem strange, since just about everybody agrees that hate crimes are deplorable. But they can’t agree about whether the law should treat those crimes differently from others. The James Byrd, Jr., Hate Crimes Act, named for the Jasper resident who was dragged to death behind a pickup truck in 1998 by three white supremacists, increases the punishment for crimes whose victims were targeted because of their race, religion, or sexual preference. Passions were first aroused by the impending death in a Senate committee of the 1999 version of the bill, sending senators into closed-door party caucuses for hours of deadlock and dissension. Last year the National Association for the Advancement of Colored People galvanized African American voters against presidential candidate George W. Bush with a TV spot alluding to the dragging death of Byrd and blaming Bush, who had expressed reservations about the bill, for its defeat. And the passions surfaced again in a February hearing on the Byrd bill before the House Judicial Affairs Committee.

Stella Byrd, the victim’s mother, pleaded with the committee to make the bill a testament against hate that would show her son’s children that their father had not died in vain. But then a retired Air Force major testified about being spat on after returning from Vietnam and asked why people who hate the military should not be prosecuted under the bill. And state representative Will Hartnett, a Dallas Republican who is the vice chairman of the committee considering the bill, asked why state law should treat the rape of one six-year-old girl differently from the rape of any other six-year-old girl. The committee, which is chaired by the bill’s House sponsor, Houston Democrat Senfronia Thompson, approved the bill, but the testimony made it clear that the disagreement over hate crimes has not abated.

Most lawmaking involves familiar questions of politics and policy, matters that are worth fighting over but are nevertheless well removed from basic ideas of what kind of society we want and what role our laws should play in shaping it. There is a certain amount of government intrusion when the state sets a speed limit or requires cars to be inspected, but it does not have the same impact as a law that says society disapproves of a certain thought or belief, or one that says that some victims need more protection than others from similar crimes. Hate crimes laws seem to draw just these sorts of lines, which is one reason they stir up so much emotion. At issue are two of the most elemental principles of American law, free speech and equal protection of the laws—the kinds of things that first-year law students argue about among themselves in the first week of law school. The hate crimes debate reminds me of the arguments my classmates and I used to make: Opponents of hate crimes protections say that the Law should treat all people the same. Proponents acknowledge that as true, but ask where, in a world in which people do not treat each other the same, can a victim turn but to the Law?

The proponents believe that a hate crime is fundamentally different from an otherwise identical crime that lacks the element of hate. Defacing property is a crime, but there is a difference between kids spray-painting “Seniors Rule!” on the wall of a high school cafeteria and kids spray-painting a swastika on the wall of a synagogue, and the difference should be reflected in greater punishment for the crime that is accompanied by hate: a class C misdemeanor (maximum fine of $500 and no jail time) for “Seniors Rule!” but a class B misdemeanor (maximum fine of $2,000 and up to 180 days in jail) for the swastika. But Cathie Adams, the president of the Dallas-based Eagle Forum, a conservative political group, insists that there is no distinction. “Look, I am willing to fall on my sword for the Jews,” she told me. “I’ve been to Israel over twenty times, and I have lobbied for continuing to send aid to the Israelis, which surprises a lot of my friends. But graffiti is graffiti.”

The justification for the harsher sentence is that a crime inspired by hate has a different effect than ordinary vandalism, both in the way it is felt in the victim’s community and in the community at large. The difference is intended by the perpetrator and deserves a different response from society. Imagine the feelings, from fear to anger, created among African Americans in Jasper by what happened to James Byrd, Jr., and the shame and onus that fell upon the entire town. (The Byrd bill, however, does not apply to first-degree felonies or capital crimes, for reasons presidential candidate Bush pointed out during a debate with Al Gore: “[W]e can’t enhance the penalty any more than putting those three thugs to death. And that’s what’s going to happen in the state of Texas”—except that Bush had it wrong. Only two of the three defendants received the death penalty; the third got a life sentence.) The toughest hurdle for hate crimes laws is that while the effect of the swastika and “Seniors Rule!” may be markedly distinct, the only real difference between the acts themselves is the thought behind them. “It’s penalizing people for what the government thinks they thought when they committed the crime, based on the fact that society doesn’t understand that way of thinking,” says Kelly Shackelford, the president of Plano’s Free Market Foundation of Texas, a conservative political group. “But you’ve got to let people engage in free speech, in political debate, even if you don’t like what they say.”

State representative Thompson’s answer is: “You want to call me all kinds of names? Call me a no-good, low-down, dirty nigger? Help yourself. But the minute you hit me, you better look out, because it becomes something else.”

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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