Wednesday, May 6, 2009

Hate crimes and misdenomers


WASHINGTON—Once a cause such as hate crime legislation becomes associated with something as emotionally devastating as the 1998 savage murder of Matthew Shepard, it becomes difficult to question the merits of the issue.

That is one lamentable fact.

Another is that too often those articulating the merits, or lack thereof, make many of us wish we could switch planets.

Witness Rep. Virginia Foxx, R-N.C., who in recently questioning the need to extend federal hate crime legislation to include sexual orientation, managed to make any further debate nearly untenable.

Who wants to join forces with someone who would use the word "hoax" in regard to Matthew Shepard's murder "that continues to be used as an excuse for passing these (hate crimes) bills"?

This was not one of the GOP's brighter moments in a field lately dim with low lights.

What Foxx meant, of course, was that those advocating expansion of hate speech protections to include sexual orientation often cite Shepard's case as justification.

Hate as a motivation is a relatively easy case to make in Shepard's horrific murder. A 21-year-old freshman at the University of Wyoming, he was picked up in a bar by two monsters posing as gay men, who lured him outside to rob him. They then beat him so severely that he died of his injuries.

The killers, now serving life sentences, left Shepard tied to a fence, where he was found 18 hours later. During the trial, a police investigator testified that one of the murderers taunted Shepard, saying, "It's Gay Awareness Week." Shepard's fatal injuries included many kicks to the groin area.

So, yes, one may reasonably conclude that the men wanted to do harm to Shepard because he was gay. That's not a stretch of the imagination. It is certainly not a hoax. And those who want to make terrorizing gays a federal crime certainly don't need excuses.

The real question for Foxx and other foes of the proposed legislation: Does our revulsion at hate-motivated crimes justify creating special laws only for certain people?

The federal hate crimes act of 1969 created special victims in cases of crimes found to have been motivated by racism or hatred of a victim's ethnicity, national origin or religion. The legislation now being considered would add hatred of the victim's sexual orientation, gender, gender identity or disability.

The rationale for these laws has been that a crime against a person for any of the above reasons is really two crimes—one against the individual and another against the group to which he belongs. By that definition, Matthew Shepard's murder may be viewed as a terrorist act against all gays, who would have felt more fearful as a result.

When whites lynched blacks with the tacit approval of the state, the entire African-American community was terrorized. No one can pretend otherwise. It is this immeasurable horror that the hate crime laws attempt to address by adding another layer of punishment to the primary crime.

What fair-intentioned person could object? On the other hand, how do we read the minds of our worst actors? Is it possible to say conclusively that these killers were motivated by hate to the exclusion of other potentially confounding factors?

These are legitimate questions that deserve rational debate without the dueling rants of hyperbole and outrage. Ultimately, that debate leads to free speech issues—especially religious speech—and the real crux of the opposition.

Some conservative groups worry that hate crime laws might eventually lead to restrictions on churches or other religious organizations' freedom to quote scripture that might be deemed hateful toward gays. Might a passionate preacher's invocation of, say, Leviticus 20:13, which condemns homosexual behavior, be interpreted as conspiracy to commit a hate crime?

In fact, the legislation applies when a physical assault or attempted murder takes place. And, so far, the First Amendment still protects the rights of even the Rev. Fred Phelps to take his "God Hates Fags" show on the road.

But in a country where eating Twinkies can be a defense for murder—and a Miss USA contestant can be publicly denounced as a "dumb bitch" for saying that marriage should be between a man and a woman—stranger things are sure to happen.

As an operating principle, meanwhile, it seems wiser to hear and see the haters rather than criminalize their thoughts and banish them to the underground where their demons can fester and where no law can breach their purpose.

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