Matthew Shepard’s Murder Was Not a Hoax, but This Law Will Be

Patrick Edaburn already wrote a very insightful article on yesterday’s passage of yet more “hate crime legislation” in the House of Representatives, this time invoking the name of Matthew Shepard. While the people who abducted and murdered Shepard were certainly monsters of the most hateful sort, their biggest crime may not be the assault on Shepard’s person, but the damage they wind up doing to our legal system.

Matters are not helped when members of Congress run off at the mouth and make themselves targets of ridicule. Virginia Foxx did not call the attack on Matthew Shepard “a hoax,” but rather the portrayal of the crime. Yet she phrased it very poorly and is now under attack by people like Glenn Greenwald, who want someone to explain the difference between a hate crime and a hate speech crime to Ms. Foxx. The problem, of course, is that someone needs to explain to Mr. Greenwald the difference between thoughts and actions.

I have little hope that the will exists any longer in Congress to push back against these destructive, populist sentimental impulses, but it still merits the effort to bring this up for discussion in the public square. Laws such as the one currently making its way through the legislative process are clearly and obviously unconstitutional on two different counts. The first, and slightly more tenuous, is the First Amendment. The horrid actions undertaken by Shepard’s attackers were already illegal. Unfortunately, what they were thinking at the time, be it ever so hateful, is protected. People who attempt to argue this point with the old red herring of “other crimes take motive into consideration” are being disingenuous. Motive is used to establish a likelihood of guilt and obtain a conviction. In cases degrees of violent crimes, such as unintentional vehicular homicide vs. premeditated murder, motive and thought are used to establish which crime was committed, with degrees of severity based on intent. Neither of these apply to these so called “hate crime laws.”

The larger issue, though, is found in the 14th Amendment.

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis mine.) Long story short: When you pass laws which assign greater guilt to certain parties for committing the same crimes, based on nothing more than what they were thinking at the time and the “class” of citizens who were the victims, then you are providing unequal protection of the laws. You are assigning a higher value to the lives, liberty and property of some victims than others based on their sexual orientation, their race, skin color, religion, etc.

Sadly, we have no elected leaders with the will to drive these questions home in the halls of Congress and I’d be shocked if we have any justices on the bench who will call these laws out for what they are.

48 Comments

  1. I think you were a bit unfair to Greenwald. He was just stating that she had used his writing in defense of her statements and he was talking about hate speech laws so it was a non sequitur on her part.

    “When I began receiving emails earlier today informing me that Rep. Foxx had cited me as an eloquent and steadfast opponent of hate crimes laws, I was rather surprised, since I'm quite certain I've never before said or written a word about hate crimes laws. I was therefore confounded that I was being praised for my moving opposition to this bill.”

    He even said he had ambivalence about hate crime laws. It'd be the equivalent of me selecting pieces of this post and claiming that you are against anti-discrimination laws.

  2. Are you against the concept of aggravation in general?

    And this is just strange:

    “In cases degrees of violent crimes, such as unintentional vehicular homicide vs. premeditated murder, motive and thought are used to establish which crime was committed, with degrees of severity based on intent. Neither of these apply to these so called “hate crime laws.”

    You act like those classifications existed before the universe did.

  3. Virginia Foxx, Poster child for the “NO Party”. It's no wonder the GOP is dieing and is the laughingstock of the nation. Because of inbreds such as Foxx the nation will soon be rid of this religious minority party and thank God for its end!

  4. By your reasoning, the raping of a child should be treated the same as that of an adult, becauese, after all, no class of people should get “more” protection. Also, legally, your analysis misses the point, since it is a type of crime that is being considered here — a hate crime — which society has every tight to do. Murder for robbery is one thing, murder in cold blood is another, and murder because of prejudiced hate is another categor, get it? (I don't thin you do, mainly because you don't want to get it and never will, mainly because you are also prejudiced).

  5. Just wondering if you wrote an article supporting the Iowa supreme court when they ruled in favor of Gay marriage siting the 14th admendent?

  6. Well Jazz you're running into one of the problems with discussing hate crimes, namely by merely questioning their appropriateness you will automatically be accused of prejudice or racism.

    Anyway I tend to agree with you on how you're interpreting the 14th amendment, and that is the main problem I have with the concept of hate crimes. I understand the opposing position that it is not the victim that is different in the eyes of the law, but rather it is the criminal that is different by virtue of his racist motives for committing the crime. Elrod threw in another angle that the criminal is also attacking an entire faction of society, and that makes the crime more severe.

    My gut feeling though is these laws don't do much to prevent crime, so why risk tearing another piece off of the constitution over it?

  7. Haha I think based on what Jazz has written about other stuff it's fair to say he's not prejudiced.

    In any case the problem with hate crimes as defined is that they don't really look at intent neutrally, it pays attention to protected status. I am sympathetic to that argument. However, I wouldn't be opposed to a new category of “hate” based motives, in the same way that there is a difference between pre-meditated murder and murder of passion, where it doesn't matter what who the victim is, just that if it's determined that it was done out of religious/ethnic/whatever malice that it'd be treated differently.

    On the other hand, practically speaking I'm not sure any of this matters

  8. Just wondering if you wrote an article supporting the Iowa supreme court when they ruled in favor of Gay marriage siting the 14th admendent?

    I don't recall if I published anything on it or not, but I was all in favor of their ruling, why? Oh, that's right. Because if I don't agree with hate crime legislation, then I'm automatically a homophobe, a bigot, a racist, an antisemite, a misogynist, etc. etc. etc. Even though I've defended gay marriage up and down the aisle here. Right. Gotcha.

  9. Hi Jazz, I'm going to copy my long comment from Patrick's post here, since this is covering the same issues:

    People seem to be ignoring Elrod's original point, which is that crimes upon individuals can simultaneously be crimes against entire groups of people. Everything follows from that. Crimes occur within history not outside of it. Black and gay Americans in particular have been historically silenced as an entire group through the terrorizing tactics of lynching and other brutal attacks. When a crime occurs against an American who is a member of those groups and for the reason of being perceived to be part of those groups, it immediately recalls those tactics. There are still places all over America where it is an act of bravery to reveal one's sexual orientation if it's not straight. When a group as a group is targeted, it is logical to protect that group, and one way to enhance protection is to increase the penalties for such crimes. If one can argue that the beating of a straight person has the same effect upon straight people as the beating of a gay person does, then we can get rid of that crime. But that isn't the case.

    Here in Honolulu, 2-3 years ago, some jerks were attacking people in Waikiki they thought were lesbian or gay. None of the tens of thousands of tourists were particularly scared by this and wandered the streets as normal. For them, it's just an isolated crime in a fairly safe place. But you can bet the lesbian women around town were singularly affected. Violence against a few individuals was being used to silence thousands of women. This is a bigger crime than just violence against individuals and therefore is a bigger crime. Notice then that this isn't a thought crime; it is trying to attack an actually bigger crime.

    To add a bit more, we protect certain groups of people over others routinely. For instance, children have far more protections than adults and a crime against a child is almost universally seen as a worse crime and deserving of a larger punishment.

    The retort to this point should be immediate and obvious: There is a principled reason that children are treated differently than adults, but there is no such principle at play with hate crimes. Instead, hate crime legislation is setting up one group of people over another based upon race or sexual orientation. Or so goes my imagined response.

    And so then the question comes back to whether or not there is a justified principle for treating certain crimes against adults as even worse than other crimes against adults. My previous comment has argued that there is such a principle.

    Final note: When people choose to do something, it does not always mean they are choosing against the other thing. I've know many women in my life who fell in love and married someone other than me. They did that, I presume, not because they disliked me, but because they liked that other guy. I understand that if one group is specially protected, then another group is not being specially protected, but that doesn't mean we are choosing to value the non-special group any less — in the same way a woman marrying someone else is not her choosing to dislike me. Instead, it's based upon an idea, correct or not, that there is value to society in protecting particular groups of people.

  10. There is already a discussion about this topic on Kathy's post from yesterday.

    Here's a comment I made there:

    State of mind has always been an important consideration in our legal system. So I'm not terribly moved by your complaint that this is Orwellian. Hate crimes have stood up to judicial review. I'm not inclined to re-invent the wheel.

    Even if there is some important distinction between motive and intent–something I'm still not terribly clear on–is it really true that motive is not considered in determining degree of crime charged? Is motive never considered during sentencing? Should motive never be considered?

    Maybe you can draw a better distinction between intent and motivation? Maybe you can show that motive is never a consideration except in the case of hate crimes?

    I understand that you're making an argument from principle, not defending racism or homophobia. But certainly you concede that racism and homophobia exist. Certainly you concede that racism and homophobia motivate acts of violence. Still, It's my understanding that hate crimes can be committed against white people and straight people–against non-minority group members. Membership in whatever assaulted privileged class is assigned by the criminal.

    It's not “better” for a straight guy to be killed simply for being straight than it is for a gay guy to be killed simply for being gay. It would be nonsense to suggest such a thing. So I don't think the privileged-class complaint holds much water.

  11. Dear Jazz, Today was the first time I ever saw the moderate voice and I have no idea of what you have written on anything other than the article I read. It was a legitimate question and does not mean I feel you are any of the long list of things you claim I must think you are. I would not judge you based on one article. I myself am not sure if I agree or disagree with hate crime legislation. That being said, having followed hate crime legislation debate for a long time I do notice that it is when it contains provisions protecting gay people it gets a lot more people against it than when it does not. Witness the number of states that have this type of legislation that do not cover gay people, usually that provision was dropped and then most objections to it were withdrawn and it passed.RegardsRobert

    RR

    “Fine baked good from around the world.”
    http://www.rovegnos.com/

  12. Here is another reason 'hate crime' laws are a bad idea. After you get used to the concept in easily defendable cases, the good old 'slippery slope' comes into play. It is easy to see if this becomes law, extending 'hate crime' rationality to it as well:

    http://volokh.com/posts/1241122059.shtml

  13. jazz

    How does your opinion flow toward the legal opposite of hate crimes? There have repeatedly been calls for the death penalty for cop killers.

    If the object is a cop, these laws wish to enhance the punishment, and I assume this is due to the role cops play. But if murder is murder, why should some be punished with death for killing a cop but only receive life for killing a neighbor? If I follow your logic, then these laws would also fail to meet your support?

  14. First of all, I apologize for the delay in getting back to you all. If I only took the time to tell you about the day I've had… but never mind. There are several great comments here which merit a response, and I'll try to get to them now in no particular order. First up, HemmD:

    How does your opinion flow toward the legal opposite of hate crimes? There have repeatedly been calls for the death penalty for cop killers.

    Excellent question. Yes, I have called for mandatory death penalties for cop killers, above and beyond other murders. How do I justify this in light of my position here? It goes right back to the 14th amendment. Those would not be laws that provided special protection to one particular *class* of citizens at the expense of the rest. The cops may be black, white, red or yellow. They could be men or women, gay or straight, Jewish, Christian, Muslim or atheist. And when you attack a uniformed police officer in the act of performing their duty (the instances where I have argued for it) you are committing an additional crime since you are breaking down the system of order and rule of law protecting the rest of the citizens. It's hardly the same.

    But there are even tougher questions you could have posed which we should address. I have been asked before, as we discussed on our radio show this morning, whether or not we should place a harsher penalty – for example – on someone who spray paints a swastika on a synagogue than we do on the guy who sprays “Bob was here” on the overpass. The fact is that they both trespassed and committed vandalism. No more, no less. So no, the penalties should not be greater for one than the other as much as nearly every single one of us might *feel* they should.

    Examples abound, but the crime is the crime and we already have laws on the books against it.

  15. unreligious sez:
    That being said, having followed hate crime legislation debate for a long time I do notice that it is when it contains provisions protecting gay people it gets a lot more people against it than when it does not. Witness the number of states that have this type of legislation that do not cover gay people, usually that provision was dropped and then most objections to it were withdrawn and it passed.

    First, my apologies if I overreacted. I didn't know you weren't a regular reader. I spend a lot of time riling up my conservative and Republican friends with my continual accusations of the GOP base in terms of homophobia because of their stance on gay marriage. (Which I always defend and will do so for as long as we continue to think that government has ANY business saying who can get married or what marriage even means.) I get a little prickly when it sounds like people might think I oppose hate crime legislation because I don't want to defend the rights of gays on the same footing as everyone else.

    Glad you brought that up, though, RR. (the part about it being harder to pass protections when they extend to gays.) It's an excellent example of why these laws almost always do more harm than good. Why should gay people get less (or more) protection than blacks, or Jews, or women, or – dare I say – healthy white males? You always leave somebody behind the curve, in direct conflict with the 14th amendment, whenever you single out particular classes for special privileges, protections or favoritism.

  16. Jazz–

    Since you're in answer mode, do you think the consideration has any place in the criminal justice process?

  17. Doesn't your example then demand we may only charge a clansman burning a cross on someone's lawn for open fires without a permit and trespassing on someone's grass? If so, your constitutional theory lacks real world practicality.

  18. Plenty of things to answer from my old friend and reliable debate opponent, George.
    do you think the consideration has any place in the criminal justice process?

    George, I'll need you to specify what “the consideration” means here. It's getting to be a long thread. On to your earlier comments.

    State of mind has always been an important consideration in our legal system. So I'm not terribly moved by your complaint that this is Orwellian. Hate crimes have stood up to judicial review. I'm not inclined to re-invent the wheel.

    I've never been a fan of arguments that start out with “that's how we've always done it and how we do it now. I'm not inclined to change.” If that were the case, why did we bother with Brown vs. Board of Education. We can and do get into silly or even evil, wrong headed habits, both as a people and a government. Healthy review and debate is never bad.

    I thought I already answered your questions on motive, but I'm sure I could have done better. Yes, we consider motive in the investigative process to convince the jury of a defendant's guilt. It's very important. Motive and thought process come into play, as I said, when determining how intentional a given crime was or if there might have been any mitigating circumstances. They help us define the degrees and seriousness of a crime on a scale of “totally accidental” up to “bloody minded intentional and evil.” But the actual crime committed is free of such encumbrance when we define it. Murder is not negligent manslaughter. They are two entirely different crimes, even if somebody winds up dead in both cases. I hope that draws a better distinction between intent and motivation.

    I absolutely concede that racism and homophobia sadly exist and even thrive in some people. It's awful and says something very sad about our species. But in the United States, I'm afraid that any of us are still free to hate anyone or any group that we like, and even speak out in public about our ignorant, backwards hatred, as long as we don't act on it or break any existing laws. I disagree with you that “Membership in whatever assaulted privileged class is assigned by the criminal.” Membership is assigned by the society and the legislature. It's interpreted and acted upon by the bigoted criminal. And so called hate crime legislation does nothing but further enforce the differences and inequities between the “classes” of Americans – no longer each receiving the equal protection and access guaranteed them under the 14th – which are imposed on us with our permission by our elected legislators and jurists.

  19. HemmD sez:
    Doesn't your example then demand we may only charge a clansman burning a cross on someone's lawn for open fires without a permit and trespassing on someone's grass?

    Yes! Exactly! Now you're getting it. It's a hard thing to wrap our heads around, but the guy who has a buick set afire on his lawn deserves *exactly* the same amount of protection and prosecution of the criminals as the family who had the cross burned on theirs!

  20. Does anyone here know if any of the anti-gay marriage laws have been tested in the federal court system? To me, they are, prima facie violations of the 14th amendment.

    How could denying a particular sub-group of citizens the rights and privileges that others enjoy NOT be a violation of the 14th Amendment? I would think even the most right wing justices would recognize this. Assuming, of course, that they believe in the 14th Amendment.

    Don't laugh. There are times when I've thought that Clarence Thomas et al. were interpreting the Articles of Confederation rather than the Constitution.

    Rick York

  21. Pacatrue shares a lot of interesting thoughts with us, but the opening stanza can serve as a pretty good summary.

    People seem to be ignoring Elrod's original point, which is that crimes upon individuals can simultaneously be crimes against entire groups of people. Everything follows from that. Crimes occur within history not outside of it.

    It's a wonderful sentiment, my friend, and a feel-good answer, but I fear that it fails the test of the Constitution on many levels. At the root of it we find the following question…. many Right wing friends of mine claim that gay people shouldn't be allowed to marry because it “attacks” the entire institution of marriage and causes harm to heterosexual marriages. Do you agree? Because I think they're crazy.

    The bare statement -give here as if it were fact – that crimes against an individual can simultaneously be crimes against entire groups – just strikes me as so far outside the realm of legal sanity as to nearly defy response. If there is a gay rights parade going on in the middle of Time Square and I run out an punch one gay guy in the face, the other ten thousand marchers don't get a black eye. They have no case against me in court and can show no damages.

    Pacatrue, I don't know about you, but I happen to be a white male. It's a given, whether you like it or not, that some white people are uncomfortable walking around in Harlem at night for fear of violence which might be perpetrated upon them by blacks. Are all blacks guilty by default? Are all white people injured every time one of them gets mugged in Harlem? Obviously not, since they can show no damages. It's already illegal to beat up gay people just like it's illegal to beat up straight people. To steal a phrase from GeorgeSorwell on this, the argument that the actions of a few homophobes against some specific gays is a crime against all gay people simply doesn't “hold much water.” We have to be able to take this into court as a consitutionally valid law, and in order to do so, the rest of the gay people who didn't get beaten up have to show us their damages, like it or not.

  22. How does your opinion flow toward the legal opposite of hate crimes? There have repeatedly been calls for the death penalty for cop killers.

    If the object is a cop, these laws wish to enhance the punishment, and I assume this is due to the role cops play. But if murder is murder, why should some be punished with death for killing a cop but only receive life for killing a neighbor? If I follow your logic, then these laws would also fail to meet your support?

    I don't know about Jazz, my answer would be yes, these laws DO fail to meet my support. I oppose more strenuous punishments for killing someone because he/she is a cop for the same reason that I would oppose more strenuous punishment for killing someone because he/she is gay. A cop is a person–his life is worth no more or less than mine, so why should he/she deserve some special protection?

  23. Rick York sez:

    Does anyone here know if any of the anti-gay marriage laws have been tested in the federal court system? To me, they are, prima facie violations of the 14th amendment.

    Exactly! You don't deny a set of rights, opportunities, etc. to one particular “class” of citizens any more than you assign special, extra rights and protections to them.

  24. fburns33 wrote:

    (I don't thin you do, mainly because you don't want to get it and never will, mainly because you are also prejudiced).

    This comment is an ad-hominem attack and completely without merit. It also demonstrates sheer ignorance, given that Jazz has gone out of his way in other posts in criticizing bigotry.

  25. I am not a legal scholar by any stretch, and so any comments I make on constitutionality would be completely useless for others to read. However, I am as capable of making moral judgments as any other mentally sane person, and I will comment on what I think is right. The claim that people burning crosses on a yard should simply be cited the same way someone is for burning trash is pretty much a reductio ad absurdum to me. If that is the logical conclusion to a train of thought, then it demonstrates an error in the train of thought. Burning crosses has only two purposes: 1) some idiot who wants attention, and 2) to frighten groups of people into submission. Only #2 is interesting of course. How can an act that is intended to frighten people by reminding them of lynching and all that went with it be considered the same as burning garbage?

    And actually my opinion is not a feel-good answer or a nice sentiment. I'm actually capable of rational thought and I am using it here. I understand that we disagree, but that's not because I'm only using my feelings.

    We also shouldn't dismiss the notion of hurting a group so easily. Pretty much everyone believes in this in the right context. People get upset when others insult their football team, because it's considered by them an insult to the team, its fans, and all they represent. People attack the WTC, not because they have a particular hatred of that building or any business in it, but because it's intended to be an attack on an entire nation. Olympic athletes apologize when they act badly because they were supposed to represent the nation on the world stage and failed. These are routine moral beliefs. Now, the question is: is it ever okay to codify harms against groups of people into law? Hate crime legislation argues that it is. Not to be PC or feel good or get over white guilt, but because it's an attempted remedy to a real hurt that can be inflicted.

  26. jazz

    “Motive is used to establish a likelihood of guilt and obtain a conviction. In cases degrees of violent crimes, such as unintentional vehicular homicide vs. premeditated murder, motive and thought are used to establish which crime was committed, with degrees of severity based on intent. Neither of these apply to these so called “hate crime laws.””

    Here is where I see the crux of the matter. If murder is murder, then all should be punished equally. To remove intent from the equation means that the degrees of murder are likewise unconstitutional. I, of course don't believe this and neither do you.

    Perhaps the current bill suffers from your analysis, but perhaps a new class of a crime may well remedy your problem. Premeditated murder is judged more harshly than other classes due to a societal value judgment, no more, no less. The victim is no less dead. It is only an ingrained bias within our society that demands greater retribution because we find the 'intent' that plans to bring about death more heinous than an identical act committed in the heat of the moment. Other societies have allowed for premeditated murder without a crime. Roman law allowing the exposure of certain children at birth is an example. If the Constitution removes hate crimes due to motive, it must remove degrees of crimes with the same stroke. Ingrained bias is not an a priori to our laws, or is it?

    Your stated premise to disallow intent cuts both ways. If 1st and 2nd degree murders are defined separately, then crime intended to attack a group through the random indivual of that group is a separate class too. Terrorism is a good example, as no one person is targeted in a terrorist act, and your logic should then require this law also be rescinded.

  27. Jazz–

    Plenty of things to answer from my old friend and reliable debate opponent, George.
    “do you think the consideration has any place in the criminal justice process?”

    I do apologize for leaving out the most important word in that sentence, which was motive.

    My fault.

    Rephrase: [D]o you think the consideration of motive has any place in the criminal justice process?

    In the other thread, I asked for definitions of motive and intent. No one provided them, although a story kind of like yours was offered. Saying, as you did, “But the actual crime committed is free of such encumbrance when we define it,” makes it seem like motive is import right up to the point at which it becomes inconvenient for your argument. Maybe you could more clearly define the distinction between motive and intent?

  28. I would like to agree with Nic Rivera that Jazz is not a bigot.

    I would also like to agree with Nic that calling someone a bigot just for disagreeing with you is completely without merit.

  29. pacatrue

    I believe you have simply stated what is meant by the spirit of the law.

    The problem with the letter of the law is that the 'intent' of those words is the first casualty in a debate.

  30. Jazz–

    It's a hard thing to wrap our heads around, but the guy who has a buick set afire on his lawn deserves *exactly* the same amount of protection and prosecution of the criminals as the family who had the cross burned on theirs!

    Is there some coded meaning to having a Buick burned on your lawn? I ask because I think everyone knows that the clansman who burns a cross on your lawn is making a racially motivated threat. This is true even if you're a white guy and the clansman a cross on your lawn.

    So: No! Inexactly! You're not getting it. Burning a cross is much worse than burning a car. This is true even if the cross-burning knucklehead has no KKK to back him up.

    And law-enforcement would be irresponsible not to take that threat seriously.

    But who knows why that American-made automobile is burning on your lawn? Maybe it's a threat. Or maybe the driver's hand slipped while he was trying to light up his crack pipe.

  31. I guess this one is for both HemmD and George. Do I believe that consideration of motive has any place in the criminal justice process? Should it be taken into account in the definition of crimes and penalty phase of the proceedings, or even how we define the charges against the defendant? Of course I do. But apparently not in the same way as some of you.

    A woman is killed by strangulation in a public park. A detective is nearby and sees three men in the area. All of them had the opportunity and each appears physically strong enough to overpower the woman. Two of the men are there walking their dogs as they do every day. The third is the woman's ex-husband who is engaged in an extremely costly divorce and custody battle with her and knows she was cheating on him while they were together. If I'm the detective, I think I'm going to have better luck chatting with the third guy.

    HemmD makes the extremely useful point about the differences between first degree murder, second degree murder and manslaughter. Are motive and intent in play when examining these different crimes? Of course! They are not only useful in locating the proper suspect, but in defining which crime was committed! It's true that somebody winds up dead in each case, but they are still three very different crimes, each of which carries its own range of potential punishments. But again. motive and intent were used to define the crime, they were not part of the crime.

    Yet again, the difference in these “hate crimes” is that the actual crime has already been defined, whatever it may be. They are all known, usually violent crimes. These laws seek to lump more on the prosecution side based on nothing more than the motive, intent and thoughts which were already used and should have been discarded by the time you complete the process of identifying the suspect and determing what crime had taken place.

    George suspects that I believe “motive is import right up to the point at which it becomes inconvenient for [my] argument.” I respectfully disagree. I believe that motive is important right up to the point where it's no longer important or needed to complete the legal process.

  32. Jazz–

    Maybe I ought to point out that hate crime legislation has been upheld by the Supreme Court as far back as 1993. That decision was unanimous. The opinion was written by William Rehnquist, who was no bleeding heart liberal. Since 1993 is a long way back, Pacatrue doesn't have to worry about constitutionality.

    Readers might be interested in knowing that the victim of the underlying crime in that case was a white teenager whose assailants were black. That was why I claimed, “Membership in whatever assaulted privileged class is assigned by the criminal.” It's not assigned by the legislature.

    Even a white guy uncomfortable in a black neighborhood can be the victim of a hate crime. William Renquist said so.

  33. Jazz,

    Thanks for replying, but maybe some definitions would really help me understand why motive, intent and thoughts should be discarded as somehow used up and no longer important or needed to complete the legal process.

    I don't see why they should be discarded before the process is completed and I don't think they are discarded in practice.

  34. From George:

    Burning a cross is much worse than burning a car.

    See? You know that! And I know that! Any normal, marginally aware person knows it. And we all feel it. But now it's time for us to leave what we know in our hearts and what we feel behind and step into a court of law. Show me your damages. You both had somebody trespassing on your property. You both had some object brought onto your property and set afire, causing damage to your lawn. Both of the suspects likely broke some local ordinances regarding outdoor fires without a burn permit.

    Anything beyond that is speculation. You seek to charge the cross burner with the crimes of thousands of violent bigots over decades of injustice. You blame him or her for the justifiable fear and trepidation felt by black Americans, when that person may have never done a single thing before except hang out on the Stormwatch bulletin boards and use racial epithets at the corner bar.

    The family with the burnt cross can show no real damages from the incident beyond those suffered by the family with the burnt Buick in their yard. The perpetrator with the cross did nothing more than setting something on fire on somebody else's property. He/she never lynched anyone or whipped them or tarred and feathered them. He/she burned a piece of wood. Show us the actual damages from the specific incident which has brought the actors in this play into court which differ than those arising from the Buick incident. And I mean the real, demonstrable damages caused by the hand of the perpetrator… not everything ever done by those of his ilk.

    Yes, I know it's far, far worse, just the same as you do. But that shouldn't amount to a hill of beans in court. You still have to show the damages and prove who did them.

  35. Here's another scenario for everyone to consider:

    A gay man gets punched in the nose. A detective is nearby and sees three men in the area. All of them had the opportunity and each appears physically strong enough to overpower the gay man. Two of the men are there walking their dogs as they do every day. The third is a known homophobe. If I'm the detective, I think I'm going to have better luck chatting with the third guy.

    Right?

  36. Jazz

    Yes, I know it's far, far worse, just the same as you do. But that shouldn't amount to a hill of beans in court. You still have to show the damages and prove who did them.

    Are you kidding me?

    You're saying that even though you know it's a far, far worse crime, the worseness of it shouldn't matter?

    Maybe I'm old-fashioned, but I think worse crimes should get worse punishments.

    And I don't have any problem seeing worse damage done to the family with cross.

  37. From George:
    The third is a known homophobe. If I'm the detective, I think I'm going to have better luck chatting with the third guy.

    Right?

    EXACTLY! Now you've got it and we may be on the verge of agreeing! The detective would absolutely do better questioning the third guy because there's a good possible motive there! And once he finishes investigating, he find that the other two guys saw him do it, are credible witnesses, and he makes the arrest.

    Now… what does he charge the third guy with? Simple assault, which generally gets a fine and a suspended jail term? Or simple assault while hating gays which gets ten to twenty years?

  38. jazz

    “HemmD makes the extremely useful point about the differences between first degree murder, second degree murder and manslaughter. Are motive and intent in play when examining these different crimes? Of course! They are not only useful in locating the proper suspect, but in defining which crime was committed! It's true that somebody winds up dead in each case, but they are still three very different crimes, each of which carries its own range of potential punishments. But again. motive and intent were used to define the crime, they were not part of the crime.

    Sorry jazz, but you're playing it both ways. 1st and 2nd are merely differentiated by the motive of the perp; their usefulness if finding that perp is a non sequitur. If motive or intent are the only difference “in defining which crime was committed,” you just admitted that motive or intent defines a a degree of crime. As I said earlier, hate crimes go exactly to the degree of crime committed. They are insidious because the crime is committed not because of what the individual has or does, the crime is committed because of who he is.

    You also side stepped the “ingrained bias” argument in the same post; your acceptence of degrees of murder rests on that. You wish to make the crimes, burning garbage and burning crosses the same; but in the same breath, you wish to make 'intent' a criteria to classify murder. Give into both or give up both. Just frame “murder by reason of hate crime” as another degree of murder, or assault, or illegal burning. If you don't, your own logic rescinds the 'intent' criteria for degrees of murder.

  39. Rats, George. I just realized that I left us hanging when we were withing sight of the finish line because we didn't finish the tale. You see, after the cop has arrested the homophobe, one of the dog walkers comes staggering back out of the trees with a bloody nose. It seems the other dog walker punched him as soon as the cop turned his back.

    Why did he do it? The first dog walker had let his dog poop on the grass without picking it up. Turns out that it's a pet peeve of the second dog walker and he's got a short temper. Now the cop has to arrest dog walker number two.

    If the cop charges the homophobe with a different crime, spends more on the trial and sends him to jail longer, what does that say about the rights and protection of dog walker number one? He is getting less than the gay guy and losing his equal protection simply because he failed to be gay.

    In the end, it's not fair to dog walker number one, and that's all I've been saying all along. It's not equal protection and the crimes were just the same.

  40. HemmD, your argument would be a beauty but for one thing. You keep trying to slip in an “agreement” on my part that that 1st and 2nd degree murder are the same crime except for motive/intent just because somebody winds up dead in each case. Not true. They are different crimes all on their own. They can readily be defined no matter what the perpetrators thought about the victims' race, sex, religion, sexual preference, etc.

    My acceptance of degrees of murder does not in any way rest on accepting “ingrained bias.” I can commit first or second degree murder on any neighbor, family member, co-worker without any type of ingrained bias. I might not need to know anything about them except for some incident which annoyed me, or even a case of mistaken identity. I simply don't accept your premise and your assumption that my definitions are something beyond what I've stated.

  41. Jazz–

    My thinking here is that if there is no homophobe, the gay guy doesn't get punched in the nose.

    And yet, there he is, getting punched in the nose. And the punch isn't some random act of unkindness meted out by an indifferent universe. It is an intentional act undertaken out of what we're agreeing is homophobia–hatred of someone for his membership in a class (go ahead and call the people who are getting punched in the nose privileged if you think that's what they are) and directed at some random schmuck who just happens to be within arm's reach of the hater.

    Call me a liberal, but I think the gay guy getting punched in the nose by someone we're agreeing is a homophobe is worse than the gay guy not getting punched in the nose at all.

    I don't have any problem calling a crime conjured up out of hatred worse than no crime at all.

    And would the guy we're agreeing is a homophobe really get ten to twenty? If so, I think that's out of line. But if he got a larger fine and a longer suspended sentence, I would say justice has been done.

  42. jazz

    “Are motive and intent in play when examining these different crimes? Of course! They are not only useful in locating the proper suspect, but in defining which crime was committed!”

    The crime is murder, the degree is used to define the crime. Am I mis-representing your words in some way? If you wish to call them 'different' crimes, go ahead, but if that is so, then simple add my third(?) nth class degree of murder, or assault, or burning. The fact remains that each crime is defined by the perps intent, but each is a crime defined by intent.

    As to your 2nd point, you once again remove your response from the context of our laws as written. An exposed Roman baby was no crime at all. For us, it's quite different, and that difference is merely societal bias. 1st degree murder requires premeditated intent in our society but is meaningless in Rome's. Our laws imply that 'intent' is a mitigating factor that rests upon nothing but agreement. Intent in one case can't logically be tossed away for your convenience.

    As the guy said,
    You have a right to your opinion, but not your own facts.

  43. George, I think you've stated your case eloquently as always, and I feel confident that I understand your rationale for it. I don't agree with you from a legal point of view and I'd like to see these exact points aired out again in court, but for the time being we've at least had the chance to bat it around.

    I think we'll have to agree to disagree as I'm going to bed shortly. I agree that a person who punches somebody in the nose should get a bigger fine than somebody who doesn't punch anyone. If two people punch somebody in the nose, I don't think one should get a stiffer penalty for what he was thinking or his ingrained prejudices. But, again, I think I understand why you don't feel that way.

  44. jazz

    have a good night, and I appreciate the discussion.

    thanks

  45. Why, Jazz, strangely enough I just remembered that the FBI was following someone suspected of serial murder (code name: Dog Walker Number Two) down that very street where the strangled woman was walking. Unfortunately, they lost track of him right before he reached the actual scene of the crime.

    As he was released from custody, the wrongly accused husband was heard to complain about how bogus hypotheticals are as the basis of serious argument.

  46. Well, let me start off by saying that I don't think Jazz or most of the commenters here are homophobes. And so I think we should just agree to disagree on this (since I disagree with Jazz).

    I also want to add that I think everyone on here (or most people) believe that gays, blacks, or whatever minority group in question should be treated fairly. This is an important point to remember in a couple paragraphs….

    I think we need hate crime laws because throughout the centuries intimidation and violence have been used as a tool of oppression. As a way to keep others from gaining “first class” status.

    I think the best example would be the history of African-Americans in this country. Many started off as slaves, with few or no rights. After our Civil War people who did not like blacks used every means at their disposal to keep blacks from gaining power and the full rights of citizens, whether it is voting rights, marriage rights or what have you. Whites (primarily) used religion, violence, laws, the US Constitution, socially ostracized blacks, etc. to keep them as second class citizens.

    Today African-Americans are equal citizens in the eyes of the law, but not in the eyes of man. (Or at least many men- the racists.) Just as today gays are second class citizens in the eyes of the law and the eyes of men. The majority has even taken away the right for gays to marry in California- a very oppressive maneuver which further enforces the idea that gays are worth less as humans than straights.

    As far as various tactics used to oppress a group of people: violence, religion, laws, social standing, etc. They all go hand in hand. Gays in this country are second class citizens. If you don't believe me then I just have to point out that we don't have the same rights as straights do. This is the piece missing in this debate. Many of you (not all) assume that gays (and blacks, etc.) are equal citizens. But these “protected classes” of people are second class citizens (some more so than others).

    I want to be careful what I say here…. I have commented on here before that I don't have a problem with homophobes, as long as they don't tell me what I can or can not do. If you're a guy and don't believe in homosexual acts, then don't sleep with another guy.

    A good example of the distinction I make between homophobes and their actions is probably the flap over Rick Warren being selected to be part of Obama's inauguration ceremonies. Most people were against him because he was anti-gay. But that's not what bothered me. I don't care what his personal beliefs are. What I was (and still am) incensed about is the fact that he supported Proposition 8, which took away the rights for same-sex couples to marry. He is telling me who I can and can not marry and does not respect me as an individual nor does he feel that I am an equal citizen under the US Constitution.

    So I don't care what Rick Warren personally believes about gays and lesbians, but I do care very much that he lacks respect towards his fellow human beings and citizens of this country.

    I don't believe that Rick Warren would ever condone violence against gays and lesbians. But his actions as a religious leader are oppressive towards a group of people who are discriminated against in housing, jobs, law, etc. Indirectly his actions do support and empower those people who DO believe in violence against gays and lesbians (and other minority groups).

    These violent bigots (for lack of a better term) look around them and see that others, including the legal system, treat gays, lesbians, etc. as second class citizens. These people feel that they are superior and have society behind them when they attack gays or other minorities.

    I mean what else would they think if church leaders, politicians, businesses, the government (and law) all treat gays and as second class citizens, without all the human rights and rights of other citizens of this country enjoy?

    So these attackers feel that they are justified in treating minorities as second class citizens and they feel that they are on the right side of the issue.

    These attackers attack and intimidate minorities as a way to have power over minorities and keep them oppressed and “in their place.”

    So there is a whole list of actions that this country does to keep certain minorities oppressed and I think gays and lesbians, by having their rights taken away from them are perhaps (though I'm open to that and there is some geographic distinctions) the most oppressed group nationally at the moment.

    So I think we need the force of law to come down on the side of second class citizens to let bigots know that it is unacceptable to dehumanize people, oppress, intimidate or otherwise dehumanize fellow citizens. Our country was founded to support the rights of its citizens and treat all citizens as humans. There is no place in the US for second-class citizens, oppression, violence, etc. against a group of people simply because one dislikes them. And the fact is that many minorities, including gays are second class citizens in this country and continue to be oppressed through the same tried and true methods that have kept second class citizens “in their place” for centuries.

  47. Heya, Stockboy. I'm awake once again, and while I can't spend the entire day on this thread (we'll be moving on to a new topic shortly) I didn't want to ignore your well stated comments from last night. Let me first say that I absolutely agree that we are not yet anywhere near the reality of a Utopian sort of America where every person as viewed as an absolute equal by every other person and we're all color blind as well as blind to religion, sexual orientation, etc. We will all, I'm afraid, run into or view circumstances where everyone winds up being a second class citizen to one degree or another, unless you happen to be a healthy, straight, relatively prosperous white male.

    With that said, how far does the government's resonsibility go toward ensuring equality for all, right down to the fine grain of daily interactions between each of hundreds of millions of individuals? If we have laws in place which make discrimination illegal and even amend our constitution to declare that every citizen must have the same rights, privileges and protections, how much further can the law go? I hope you understand at least why some people are bothered by the idea of additional resources, rights and protections being assigned to certain sub-groups of the larger society even if they have been historically denied many rights.

  48. Jazz, thanks. Yes I absolutely do understand, “why some people are bothered by the idea of additional resources, rights and protections being assigned to certain sub-groups of the larger society even if they have been historically denied many rights.” It's a good argument. But it doesn't protect the oppressed from the oppressors by being punitive towards the oppressors.

    I understand that you need to move on from this thread and as I said in my original post I don't think you're homophobic or racist, etc. I am more than happy to have this disagreement with you- I see that you (and most, if not all, other commenters on here) do want what's best for everyone. Your intent is in the right place and you have goodwill towards all. And I think that counts way more than any anti-hate law. That's very good to see because at the end of the day it's the good examples we all set or strive for which lead to a moral, civil and just society. Thanks again!

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