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A cure for hate crimes

By Stephen M. Lilienthal
web posted October 17, 2005

The proposed Children's Safety Act, intended to protect children against violent and sexual crimes, might scare pedophiles, but there is reason for law-abiding Americans to be wary of this bill. An amendment by Representative John Conyers, Jr. (D-MI) would distort our time-honored American conception of justice.

Conyers, Ranking Minority Member on the House Judiciary Committee, offered an amendment – denominated the Local Law Enforcement Hate Crimes Prevention Act of 2005 -- to require that crimes based upon "actual or perceived…sexual orientation [and] gender identity" be covered by the Federal Hate Crimes Statistics Act.

The House approved the Conyers Amendment, 223-199. It passed the Children's Safety Act, with the Conyers Amendment, 371-52. Pro-family leaders were extremely disappointed having received untimely late notice that the Conyers Amendment would be considered.

The Children's Safety Act has been referred to the Senate Judiciary Committee. Senator Arlen Specter (R-PA), Committee Chairman, may favor expanding the Federal definition of "hate crimes" to include sexual orientation and gender. Senator Specter, with the support of Committee Democrats, and possibly that of some Republicans, such as Senators Mike DeWine (R-OH) and Orrin G. Hatch (R-UT), could send the Children's Safety Act with the Conyers Amendment to the Senate Floor. Many conservatives are worried because the Senate approved last year a "hate crimes" amendment covering gender although it lapsed without House approval. It remains to be seen if the 2004 election of seven new GOP Senators, five of whom are considered solidly pro-family, would suffice to defeat the Conyers Amendment.

Many well-intentioned Americans probably would say the Conyers Amendment signifies "progress" because it would protect people from abusiveness and hatred. What right-thinking Americans, particularly observant Christians and Jews, would want to excuse the commission of crimes committee by "haters" based upon race, religion or sexual preference?

Enhancement of the Children's Safety Act with the Conyers Amendment would be a victory for influential lobbies seeking special treatment for their constituencies. Matt Foreman, of the National Gay and Lesbian Task Force, proclaimed the vote to be historic because "Never before has the House of Representatives voted to protect transgender people in any way." Furthermore, it was the first time that the House "outside of procedural motions…affirmatively voted to extend full hate crimes protection to lesbian, gay and bisexual people."

Many House Members appear to have let their good intentions override the common sense principle that is the underpinning of our criminal case law. Creating new categories of "hate crimes" would be a significant departure from "equal justice under law." The phrase is more than an appealing platitude engraved over the entrance to the Supreme Court; it is the ideal to which our nation aspires in its system of justice.

The act, not the motive, has long been of supreme importance in determining whether a law has been broken. Adding penalties for infractions due to the criminal's ill-favored perception of his victim drastically would require that "equal justice" be determined by influential special-interest groups.

Representative Jeff Miller (R-FL) argued that hate-crimes laws are not in accord with a society that aspires to "equal justice under law." He told the House on September 14, 2005:

"Federalizing hate crime law will not increase tolerance in our society or reduce intergroup conflict. I believe hate crime laws may well have the opposite effect. The men and women who will be administering the hate crime laws (e.g. police, prosecutors) will likely encounter a never-ending series of complaints with respect to their official decisions. When a U.S. Attorney declines to prosecute a certain offense as a hate crime, some will complain that he is favoring the groups to which the accused belongs (e.g. Hispanic males) And when a U.S. Attorney does prosecute an offense as a hate crime, some will complain that the decision was based upon politics and that the government is favoring the groups to which the victim belongs (e.g. Asian Americans."

Crimes implicating interstate activity and crimes against federal government lawfully may be subject to Federal legislation. The intrusion into States' rights should not further. The Tenth Amendment provides, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Every sate in the union has laws against assault, murder and other crimes of violence. There is no need to enact new federal crime laws.

An equally pernicious impact of "hate crime" laws and one understood by observant Christians and Jews is that we are starting down a slippery slope, hurtling toward the day when politically incorrect thought would become a crime. The alleged criminal who attacked a member of a specially protected group could have his past life raked over by investigators who intended to identify hateful attitudes toward others.

Will quoting Biblical verses against homosexuality one day be considered a crime? Recall that last year Christians in Pennsylvania were prosecuted for having run afoul of State hate crime laws. Their crime? They preached and sang hymns at a homosexual event and the Pink Angels, a homosexual defense group, surrounded them. The charges against the Christians ultimately were dismissed but not before the Christians had been jailed.

Any legislator, state or federal, evaluating the element of intent in a proposed statute should consider the deprivations of free speech already manifest in Canada and Sweden. More fundamentally, legislators should adhere to the basic intent requirement in our traditional criminal law: A defendant must intend to commit the crime; other motivation is not germane.

The Children's Safety Act probably will be considered by the Senate. Grassroots pro-family groups will urge the Senate Judiciary Committee to uphold "equal justice under law." They will confront well-funded lobbies representing groups seeking special protection based upon gender, sexual orientation and perhaps, ethnicity. The determinative factor in whether we uphold the American way or take a decisive step toward repression could be which side could best deliver grassroots sentiment to senators and representatives in Washington.

Hate crimes laws whether at the federal or state level undermine our most valued legal principle. All lawful Americans oppose crimes, particularly premeditated acts, whether they have occurred because of greed, passion, hate or thrill-seeking. We have state laws to deal with murder and assault. There is no need for federal "hate crimes" legislation, which is "thought crimes" legislation, given its destructive impact upon one of our cherished ideals.

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

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