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Posted by on Apr 30, 2009 in Society | 48 comments

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.