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An invasion of the right to a personal opinion

By Stephen M. Lilienthal
web posted November 7, 2005

When the House approved the Conyers Amendment -- the Local Law Enforcement Hate Crimes Prevention Act of 2004 -- to the pending Children's Safety Act organizations such as the National Association for the Advancement of Colored People (NAACP) praised the victory. The NAACP newsletter proclaimed that the NAACP "was very pleased to see the Hate Crimes Prevention amendment pass on a record vote. In recent years, the House of Representatives has proven to be the stumbling block for this legislation, so this is a huge step moving forward toward the U.S. Senate."

Was House approval of the Conyers Amendment really a "huge step" toward progress? The Amendment is intended to criminalize "actual or perceived" sexual orientation, gender or gender identity as Federal "hate crime."

James B. Jacobs, Director of the New York University Center for Research in Crime and Justice, and Kimberly Potter, in their 1998 book, Hate Crimes: Criminal Law And Identity Politics (Oxford University Press, 1998), argue in the chapter "What is Hate Crime?"

"The civil rights paradigm that has condemned and outlawed certain prejudices in employment and housing does not apply easily to the world of crime. The first problem is that some of the groups that are the classic targets of prejudice serve as active perpetrators of prejudice-motivated crime.… Many commentators continue to portray the United States as a nation of two races, a dominant and oppressive white race and a subjugated and victimized black race. That picture, while a caricature, is more accurate in the context of employment and housing than with respect to crime. The majority of crimes are intraracial (i.e., the perpetrator and the victim are members of the same racial group)."

"Perhaps some percentage of black-on-black, Hispanic-on-Hispanic, and Asian-on-Asian crime could also be attributed to prejudice if we scour every crime for evidence. The contemporary multicultural discourse refers to "Hispanics," "Asians," and "Africans" as if they were single homogenous groups without divisive ethnicities. Only a moment's reflection is needed to dispel that misconception. These classifications disguise enormous differences, historic animosities, and prejudices."

Jacobs and Potter assert that all crime victims should be considered to be members of "a protected group. Why should some victims be considered more protected than others?"

The Conyers Amendment to the pending Children's Safety Act, which is intended to target pedophiles and violent criminals, would redefine "hate crimes" to include gender and sexual orientation. The Conyers Amendment could lead to stereotyping.

Family Research Council (FRC) analyst Leah Farish, Esq., in a recently published paper, "Hate Crimes: Beyond Virtual Reality," notes that a 1998 killing of James Byrd, a black man, in Jasper, Texas drew national publicity as a "race killing" that generated "fear and anger." The Town of Jasper was not torn apart by racial animosity. Quite the contrary, the town expressed its remorse over the killing and urged America to "pray with us."

The lobby for homosexual rights claims that the passage of Federal hate-crime legislation relating to sexual orientation is imperative. However, criminals who commit assault and murder usually are not the most logical people. If they are not deterred by existing law why would they be deterred by additional penalties for commission of a Federal "hate crime?"

Robert H. Knight, Director of the Culture and Family Institute at the Concerned Women for America (CWA), pointed out that over half of the so-called hate crimes identified by the Justice Department report, Crime In The United States 2003, involved "intimidation" or "simple assault," which simply could be a contentious, unpleasant exchange of words.

Were the Conyers Amendment enacted into law the Department of Justice would be compelled to devote resources to assure that local prosecutors handled their cases as Washington intended. Resources better spent tracking terrorism and other serious crimes of concern to the Federal Government would be diverted to prosecute perpetrators of "hate crimes." Local prosecutors would have diverted prosecution of hate crimes, likely at the detriment of prosecution for carjackings, theft, assault, child abuse, homicide and other traditional crimes.

Opposition to hate crimes unites social conservatives, libertarians and many liberals. Pro-family organizations, such as the Concerned Women for America, Family Research Council, Traditional Values Coalition and Religious Freedom Coalition, are among the conservative organizations opposed to "hate crimes." The Libertarian Party, People for the American Way, Human Rights Campaign and the Leadership Council on Civil Rights are among other organizations opposed to "hate crimes."

The Libertarian Party platform includes a plank against hate crimes:

"We call for an end to "hate crime" laws that punish people for their thoughts and speech, distract us from real crimes, and foster resentment by giving some individuals special status under the law."

Respected civil libertarian Nat Hentoff, known for supporting civil rights and human rights, took Vice President Albert A. Gore, Jr., the Democratic Presidential nominee, to task in an October 2000 column for advocating hate crimes legislation. Hentoff noted that in 1992 the Ohio Supreme Court overturned a hate crime law because

"Once the proscribed act is committed, the government criminalizes the underlying thought by enhancing the penalty based on viewpoint. If the legislature can enhance a penalty for crimes committed ‘by reason of racial bigotry,' why not ‘by reason of opposition to abortion, war, or any other political or moral viewpoint?'"

The Children's Safety Act with the Conyers Hate Crimes Amendment was approved by the House in September and by the Senate Judiciary Committee without the Conyers Amendment in October. However, Senator Edward M. Kennedy (D-MA) has announced that he could attach his pro-homosexual hate crimes bill to other legislation, the Streamlined Procedures Act of 2005, pending before the Judiciary Committee.

Should the full Senate this year vote to send the hate crimes bill to its rightful place – the trashcan – those advocating special legal protection for their constituencies relentlessly would attempt to enact such legislation next year.

The best defense is a good offense. Grassroots Americans must advise their friends and neighbors as to why hate crime laws would take us down the slippery slope toward thought crimes. There would be more at stake

Our nation strives for "Equal Justice Under Law," the motto that is engraved over the Supreme Court. Thomas Jefferson declared in his first Inaugural Address on March 4, 1801:

"All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."

Politically powerful minorities could threaten to undermine the concept of "equal justice under law" by enhancing their rights and diminishing the rights of the majority. Americans who care about defending our most important principle of law and justice in our country cannot afford to sit back idly and allow that to happen. It is sufficient that a criminal defendant intended to commit the crime for which he is charged; his subjective motivation is irrelevant. Worse, criminalizing his thoughts is a dangerous invasion of his right to a personal opinion.

Stephen M. Lilienthal is a policy analyst at the Free Congress Foundation.

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