A Stitch in Haste

When an incident — such as the recent attack in a Massachusetts gay bar that left one innocent gay man shot and two others hatcheted by a skinhead Aryan — is elevated to the status of "hate crime," many libertarians cringe. The standard talking points are "you're punishing thought" or "all crimes are hate crimes" or some other gobbledygook.

So let me ask this: When the suspect later kills a police officer in the line of duty, and his female companion who apparently was just along for the ride, do these same libertarians cringe in the same way over the fact that the former could have earned the (now deceased) perpetrator the death penalty in Arkansas, but not the "plain vanilla" murder of his passenger? Murder is murder, right? Aren't we just punishing thought (i.e., the thought of not wanting to be captured)? All crimes are hate crimes, right? Why should the death penalty be applied differently for one murder but not the other?

The simple truth is that we punish the same crime differently in different circumstances all the time. We punish repeat offenders differently than first-time offenders. We punish those on probation or parole differently from those who have fully served their time. We punish people who harm family members differently from those who harm strangers. We often punish younger offenders differently from older perpetrators. And, yes, we occasionally punish the rich differently from the poor. Are all such distinctions unfair and anti-libertarian? If not, if your problem with differential penalties only applies to "hate crimes," then why exactly? I just don't get it.

Open thread — comment away!

(Cross-posted at Spectrum Bloggers.)

It's entirely plausible:

A man accused of murder as a hate crime in the death of a gay man presented evidence of his own homosexuality in State Supreme Court yesterday. Prosecutors have said the defendant, Anthony Fortunato, 21, used his computer to lure the victim, Michael J. Sandy, 29, to a beach in Sheepshead Bay.

Mr. Sandy was chased into traffic, prosecutors said, and died of his injuries. During the cross-examination of a computer crimes detective, Mr. Fortunato's lawyer put into evidence gay pornographic images recovered from his client's e-mail account. The lawyer, Gerald J. Di Chiara, has said he hopes to show that because Mr. Fortunato is homosexual, he would be unlikely to single out a gay man to commit a crime against.

A few hasty stitches:

--Gay porn on a computer is not proof of gayness. Indicative, perhaps — but it could just as easily be indicative of a premeditated effort to avoid a hate crimes charge (i.e., he's merely posing as gay to avoid the anti-gay presumption). Is the defendant that clever, or that stupid? Who knows?

--In any event, there is no shortage of gays who hate other gays.

--Most importantly, one must remember that the term "hate crime" is sloppy shorthand. "Hate" is not an element of most "hate crime" laws, and definitely not New York's:

A person commits a hate crime when he or she commits a specified offense and either:

(a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or

(b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.

So, for instance, a mugger who intentionally selects as his prey an elderly person need not "hate" the elderly to be guilty of violating New York's "hate crime" law. He need only believe, correctly or incorrectly, that the elderly are, e.g., weaker or more frail than others and therefore easier to prey upon. By this standard, an elderly mugger who targets an elderly victim has still violated the hate crime law, even in the absence of any "hatred" of the elderly.

Similarly, a robber who intentionally selects as his prey a Hasidic man near 47th Street in Manhattan need not be anti-Semitic to be guilty of violating New York's "hate crime" law. He need only believe, correctly or incorrectly, that Hasidic men are more likely to be carrying diamonds and therefore represent, probabilistically, a more lucrative target. By this standard, a Jewish robber who targets a Jewish victim has still violated New York's hate crime law, even in the absence of any "hatred" of Jews.

So too with gay-on-gay violence. Despite the unfortunately inaccurate term — "hate crime" — such laws are better labeled as "victim targeting" crimes. To target a gay victim in any way because of his gayness is the punishable aggravator, not "hatred" of gays per se. Just as to target women because of their gender, or the elderly because of their age, or the disabled because of their condition, all trigger the "hate crime" offense escalation, even in the absence of any "hate," commonly defined.

This caveat is an important element underpinning why "hate crime" laws are not nearly as pernicious as some libertarians like to insist. The "punishing thought" meme is indeed chilling, but wholly misplaced. As I have explained previously, we punish the same crime differently under different circumstances all the time. To use victim targeting — which is not synonymous with "hate" or "thought" — as a differentiator is neither subjective, offensive nor totalitarian. It is, generally if not always, an objective and reasonable calculus in criminal law.

A "gay-on-gay hate crime" is not a reductio ad absurdum. It is merely a demonstration of the need for better syntax.

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Meanwhile, tomorrow the Senate takes up the Matthew Shepard Act (S.1105), which adds sexual identity to the pre-existing federal hate crime law. Even if you find hate crime laws problematic, you should still insist that such laws that are already on the books be applied intelligently and consistently — which demands that sexual orientation be included. This is the same argument as with the radical libertarian position on marriage: do not use your general distaste for "government being in the marriage business" as an excuse to oppose fair and equal access to marriage for gays.

As someone who cannot imagine himself as a politician, I can only — as Billy Joel might say — stand apart and sympathize:

Even as the Senate passed a hate crimes bill sought for a decade by gays and lesbians, House Democratic leaders decided Thursday to strip transgender people from another long-languishing civil rights bill, generating dismay in the gay community and furious but fruitless lobbying for more time.

House Speaker Nancy Pelosi of San Francisco and Reps. George Miller, D-Martinez, Barney Frank, D-Mass., and Tammy Baldwin, D-Wis., believe that they lack the votes in the Democrat-controlled House to pass the Employment Non-Discrimination Act if it includes gender identity along with sexual orientation as a prohibited ground for firing an employee.
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Gay activists argued that transgender people are among those most in need of discrimination protection. Getting some future bill passed just for them will be much harder than including them now with gays and lesbians, who are increasingly accepted by society. Activists were outraged.

Tough call for gay activists and gay-friendly politicians: Take what you can get, or take a principled if martyred stand for what you think is right?

Again, I can't "think like a politician," but I keep circling back to my position on hate crimes and whether libertarians should support adding sexual orientation to the list of included classes. I stick to my view that it is no betrayal of libertarian principles to insist that a law that you may disagree with facially at least be applied as reasonably and as consistently as possible. Stated differently, even if a libertarian paradise would have neither room nor need for a hate crimes law, the fact that we have one demands that it be the most objectively sensible one possible — and that in turn demands that sexual orientation be included. A bad law applied well is better than a bad law applied badly.

So too with marriage: Shame on those libertarians who cowered behind the perhaps-true-but-utterly-pointless protest that "government should get out of the marriage business" — rather than to insist that, given that legal marriage exists, it ought be fairly and equally available to all.

Perhaps ENDA itself is a bad idea. Perhaps an economy comprising exclusively libertarian-capitalists (who by definition do not irrationally discriminate contrary to their own economic self-interest) would find ENDA — and the behavior that generates the need for it — puzzling curiosities. But given that anti-discrimination laws are here, does not the libertarian imperative for fair and equal application of laws insist that gays and the transgendered be included in such laws?

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Gay activist groups, meanwhile, are also grappling with the ENDA-T conundrum: can they endorse a gay rights bill that excludes one of their constituencies? There are reports that directors of the Human Rights Campaign are threatening to resign if HRC comes out in favor of the no-T version of the bill. I could just as easily see directors threatening to resign if they didn't support it. The organization has yet to take a clear position — which itself is drawing criticism from some of its members. The National Stonewall Democrats, meanwhile, have come out unambiguously against the no-T version, as has the National Gay and Lesbian Task Force. Since many of these organizations are perpetually in bed with the same Democratic leaders (i.e. Pelosi and Frank) who are now "selling out" the transgendered, one can imagine how much egg is being wiped off how many gay liberal Democratic faces. (Pelosi is the Guest of Honor at HRC's National Dinner this coming Saturday.)

Lambda Legal, meanwhile, emphasizes that: "The recent version is not simply the old version with the transgender protections stripped out — but rather has modified the old version in several additional and troubling ways. They explain here.

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Here is a statement from Barney Frank. More thoughts at Straight Not Narrow, The Gist, Pam's House Blend, Obsidian Wings.

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The latest development is that Pelosi and Frank have delayed the final mark-up of the bill pending resolution of all this politics most foul.

To review: The House has delayed a vote on the Employee Non-Discrimination Act (H.R. 2015) given evidence that the bill, which would extend anti-discrimination protection to sexual minorities, could not pass if it included the transgendered as a protected group. The initial response by Nancy Pelosi and Barney Frank was to strip transgendered protection from the bill, but a broad chorus of opposition from gay rights groups (about 90 of them) caught the House leaders by surprise.

With that, let's clean out the aggregator:

--The Human Rights Campaign, after much delay, issued a split-the-baby press release sorta kinda opposing the no-T version of ENDA:

Therefore, we are not able to support, nor will we encourage Members of Congress to vote against, the newly introduced sexual orientation only bill.

Don't worry, I had to re-read it a few times too. Bottom line: "We don't like it, but we won't hate you if you vote for it." Real backbone there.

As is often the case with such "compromise" positions, no one was pleased — most comprehensive example here. HRC's only transgendered director has resigned in protest.

Meanwhile, some gay bloggers (finally) picked up on what I noted from the beginning: A warning from Lambda Legal that the revised ENDA does far more than simply "delete the T" —

In addition to the missing vital protections for transgender people on the job, this new bill also leaves out a key element to protect any employee, including lesbians, gay men and bisexuals who may not conform to their employer's idea of how a man or woman should look and act. This is a huge loophole through which employers sued for sexual orientation discrimination can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit.

This version of ENDA states without qualification that refusal by employers to extend health insurance benefits to the domestic partners of their employees that are provided only to married couples cannot be considered sexual orientation discrimination. The old version at least provided that states and local governments could require that employees be provided domestic partner health insurance when such benefits are provided to spouses.

In the previous version of ENDA the religious exemptions had some limitations. The new version has a blanket exemption under which, for example, hospitals or universities run by faith-based groups can fire or refuse to hire people they think might be gay, lesbian or bisexual.

The second point is highly relevant given the increasingly popular maneuver by some employers to insist that state laws requiring equal treatment for same-sex couples are summarily pre-empted by federal ERISA (one example here). The third point is regrettable as well: a hospital or school, even a religiously sponsored hospital or school, is simply not a church and should not enjoy the legal exemptions that a church might reasonably deserve.

Meanwhile, I continue to wonder why there is such urgency over the ENDA bills in the first place, given that any bill one way or the other would of course be vetoed by our current bigot-pandering president. Why not just wait until after the election, when Congress will be even more Democratic than it is now, and the bill then sent to the next (Democratic) president might actually be signed?

Stay tuned...

One of the interesting questions during the ENDA-T debate was the topic of "gender stereotype discrimination," especially as it applied to the transgendered. In other words, is there a functional — or legal — distinction between discriminating against someone for "being a gay male" and discriminating against someone for "not acting male"?

Exhibit A:

K.K. Logan attended West Side High during his junior and senior year and expressed a deeply rooted femininity in his appearance and demeanor. Both classmates and teachers at the school supported him in his daily attendance dressed in clothes typically associated with girls his age.

However, on May 19, 2006, Principal Diane Rouse stretched her arms across the door of the Senior Prom, blocking Logan's entrance. His classmates and friends rallied to his defense to no avail — even though a female student was allowed entrance dressed in a tuxedo.

There are several different approaches one could take here. Clothing is considered expressive conduct for First Amendment purposes. The school, by allowing Logan to cross-dress during the school year, had arguably waived its authority to prevent him from doing so at the prom. To allow girls to cross-dress but not boys is a clear Equal Protection red flag.

Unfortunately, it gets worse:

Principal Rouse has stood by a school policy that deems inappropriate any "clothing / accessories that advertise sexual orientation, sex, drugs, alcohol, tobacco, profanity, negative social or negative educational statements."

Sexual orientation is, to school administrators, on a par with "drugs, alcohol, tobacco and profanity"? Even to the extent that those other manifestations of supposedly impermissible naughtiness might be proscribable in the context of clothing (and that's a big "might" under the First Amendment*), any meaningful application of rational basis would come up short trying to lump in "sexual orientation" with those other categories.

School proms would not have been covered by ENDA, with or without the "T." But the playbook is the same: A crafty bigot can all too easily frame unequal treatment in a manner that circumvents mere homosexuality: "He wasn't fired for being gay, he was fired for dressing weird..." Etc.

The case is Logan vs. Gary Community School Corporation.

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*Or is it? See Morse v. Frederick and its progeny.

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In an unrelated recent post, I noted:

Being wronged, suing and winning is not the same as never having been wronged in the first place. Most people would choose not to suffer such an indignity rather than suffer the indignity and get a payment in exchange[.]

How exactly do you put a dollar value on being denied access to your prom?

To review: Some of my fellow libertarians have suggested that I am flat out wrong walking too fine a line on the subject of hate crimes. They think that all hate crime laws are "punishing thought." I think -- in fact I know -- that we punish the same crime differently in different circumstances all the time and that there is nothing intrinsically problematic with escalating the punishment for an underlying crime (which, despite the shortcut term "hate crime," is not crafting a new criminal offense in and of itself) based on a hateful motive.

Having said that, this fact pattern disturbs me in classic libertarian fashion:

A white man accused of driving past a group of black civil rights activists with two nooses dangling from the back of his pickup truck has been indicted on federal hate-crime and conspiracy charges, federal prosecutors said Jan. 24.
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"It is a violation of federal law to intimidate, oppress, injure or threaten people because of their race and because those people are exercising and enjoying rights guaranteed and protected by the laws and Constitution of the United States," said Donald W. Washington, the U.S. Attorney for the Western District of Louisiana.

Not exactly. The federal law is 18 U.S.C. 245. The relevant text is:

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with ...

followed by a comprehensive list of "federally protected activities."

One of those activities is "participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate" -- i.e., a civil rights rally. Point conceded. But circle back to the required act: "by force or threat of force." Sorry, but I think, as a matter of reasonableness (not to mention the First Amendment), driving past a rally with two nooses on your truck simply does not rise to the level of using "force or threat of force." More is needed.

If there had been a more proximate display (e.g., brandishing weapons or shouting unambiguous threats), then perhaps the incident could rise to prosecutable "force or threat of force." There is no right to shout "String 'em up!" in a crowded theater, and there is no right to hide behind the First Amendment when you criminally assault someone (i.e., instill a fear of immediate harm); neither is there a right not to have such an bona fide assault escalated to a hate crime if the facts support it.

But there must be, as a matter both of law and free speech rights, a showing of an underlying offense that is objectively proscribable before any questions of the propriety of adding a hate crime charge are introduced. That burden does not appear to have been met here.

That's my ruling -- any dissents?

So says the Associated Press:

A 15-year-old boy who was shot in the head at school was declared brain dead Wednesday but was kept on a ventilator for possible organ donation, a medical examiner said.
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An unidentified 14-year-old classmate arrested near E.O. Green Junior High after the shooting Tuesday was booked for investigation of attempted murder.
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Police have not alleged a motive for the shooting, but said there appeared to have been "bad blood" between the teens.

"Bad blood"? I suppose that's one way of putting it:

Some students said the victim, whose name was not disclosed, sometimes wore makeup and feminine jewelry and had declared himself gay. They said he was frequently taunted by other boys and had been involved in an argument with the alleged shooter, an eighth-grader who also was not named, and others Monday.

The story is, as they say, "Developing..."

More thoughts at Dolphin's Dock.

Quite awkward timing for some California bigots:

At a Los Angeles news conference, Campaign for Children and Families (CCF) kicked off a statewide campaign for parents to exit the government school system. In light of the new sexual indoctrination laws, SB 777 and AB 394, CCF has launched RescueYourChild.org which shows parents how to do whatever it takes to either homeschool or enroll their children in church-run schools.

Take note: "RescueYourChild" means rescue them from this —

SB 777 functionally requires public school instructional materials and school-sponsored activities to positively portray cross-dressing, sex-change operations, homosexual "marriages," and all aspects of homosexuality and bisexuality, including so-called "gay history."

That story was dated February 11.

Two days later, the CCF folks — along with the rest of us — got a not-so-gentle reminder of precisely which children need rescuing from which children:

A student at an Oxnard junior high school shot another classmate Tuesday in front of two dozen other students who were settling into their first-period English class, police said.
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Some students said the victim, whose name was not disclosed, sometimes wore makeup and feminine jewelry and had declared himself gay. They said he was frequently taunted by other boys and had been involved in an argument with the alleged shooter, an eighth-grader who also was not named, and others Monday.

Did the bigots temper their tone after this stark reminder of who needs protecting from whom?

Hardly:

A 14-year-old California boy is charged with a hate crime as well as attempted murder for shooting a 15-year-old boy who "sometimes wore makeup, high heels and other feminine attire," as the Associated Press reported.
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Homosexual activists have seized on [the] case.

Gee, I wonder why.

These are the same sort of "children rescuers" who believe Matthew Shepard "had it coming" and that "gay panic" ought to be a get out of jail free card. To at least some of these bigots (and more than they are honest enough to admit), "one dead pansy" constitutes "a good start."

But at least we agree on one thing: Children need to be rescued.

(Via Good As You.)

John Cloud, a gay journalist with Time who has previously written controversial pieces about how being a gay teenager is "no big deal," comes out (no pun intended) with a real whopper regarding the Lawrence King incident:

According to another GLSEN survey [PDF - 117 pages] released the same year, only 18% of gay and transgender students said they had ever been assaulted because of their sexual orientation (only 12% -- probably many of the same kids -- said they had been assaulted because of the way they express their gender). And of those who had been harassed or assaulted, more than one-fifth -- 22% -- said the incident wasn't serious enough to report. When they did report the incidents, the response from school staffs was positive about 70% of the time. That's not enough -- it should be 100% -- but it belies the dire picture painted by gay groups in the wake of King's killing.

"Only" 18%?

Could you imagine if "only" 18% of teenage girls reported being physically assaulted at school because of their gender? Or if "only" 18% of black teens reported racial assaults at school (or 18% of white, Asian or Hispanic teens, for that matter)? Not teased or taunted, mind you, but physically assaulted.

But when it's gay kids, an 18% victimization rate somehow warrants the qualifier "only." Go figure.

(One also wonders whether that "only 18%" number takes into account the fact that many gay teens never get assaulted because of their sexual orientation for the pesky reason that they stay in the closet.)

More:

They [i.e., gay teens] are periodically confused and depressed, but what teen isn't?

The academic literature is teeming with studies showing that gay teens, especially males, are far more likely to ideate about suicide, perhaps by a factor of ten, and are also more likely to attempt suicide.

Cloud's own homosexuality notwithstanding, his arrogantly flippant "what's the big deal" approach to growing up gay is not a bandwagon gays (or libertarians) should be jumping onto, one's views on hate crimes legislation generally, the Matthew Shepard Act specifically, or any other gay rights issue notwithstanding.

Regardless of one's conclusions regarding policy, it's never acceptable to be wilfully oblivious to facts, especially such painful facts as suicide statistics.

I'm going to resurrect an old feature here at A Stitch in Haste: highlighting noteworthy publications from the Congressional Research Service.

Today's entry is Constitutional Limits on Hate Crime Legislation (PDF - 6 pages).

Summary:

Federal and state legislators recognize the special concerns and effects of hate crimes. Although there is some federal legislation in place, many states have enacted some form of ethnic intimidation law or bias-motivated sentence-enhancement factors in attempts to curtail hate crimes. Several United States Supreme Court cases provide the framework in which states must legislate to ensure the constitutionality of hate crime legislation. After these landmark cases, the real questions for states involve identifying permissible ways to curtail hate crimes without infringing on any constitutionally protected rights. On the federal level, in light of U.S. Supreme Court cases, the question remains as to what extent Congress can broaden the classes of individuals subject to hate crime legislation. This report discusses constitutional considerations facing both individual states and Congress in enacting hate crime legislation. It will be updated as events warrant.

An excerpt:

Generally, the constitutional distinction boils down to the difference between conduct and speech. If the statute's aim is to punish conduct, then it will generally be upheld; however, if the intent behind the statute is to punish speech, thought, or expression, then courts are more apt to strike down the statute. For example in R.A.V. v. City of St. Paul*, the Court struck down a local ordinance as being overbroad and because the regulation was "content-based," proscribing only activities which conveyed messages concerning particular topics. However, in Wisconsin v. Mitchell**, the Court found that a Wisconsin statute providing sentence enhancement for bias-motivated crimes did not violate a defendant's 1st Amendment right as the statute was directed towards the defendant's conduct and not expression. Most recently, in Virginia v. Black***, the Court found that the 1st Amendment permits a state to outlaw cross burnings done with the intent to intimidate because "burning a cross is a particularly virulent form of intimidation." However, in a separate ruling, the Court found that the Virginia statute banning all cross burnings is facially invalid as it impermissibly shifts the burden of proof to the defendant to demonstrate that he or she did not intend the cross burning as intimidation.

I think Virginia v. Black represents the absolute outermost bound of hate crime jurisprudence: If "intimidation" is a viable criminal offense, then "burning a cross with intent to intimidate" is just another form of "intimidation" and worthy of criminal proscription. But the criminal intent still has to be proven beyond a reasonable doubt. Anything more restrictive than that (e.g., assuming that all flag burnings are meant to intimidate, without a specific showing in a specific incident), cannot withstand constitutional scrutiny. (Note also that this is more of a Fifth Amendment due process issue than a First Amendment free speech issue, though the Black court did not actually analyze the issue in quite those terms.)

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*505 U.S. 377 (1992)
**508 U.S. 476 (1993)
***538 U.S. 343 (2003)

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Previous CRS Recommendations:
Same-Sex Marriage -- Legal Issues
Saudi Arabia
The National Debt
Restricting Video Game Sales to Minors
Warrantless Wiretapping
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR

In a follow-up piece to the horrific student-on-student violence in Oxnard, California, that left a gay 15-year old dead at the hands of a fellow student whom he had hoped to ask to be his valentine, a professional bigot tries to whitewash exactly how and why such nightmares occur:

"The vast majority of parents believe it's their role and their responsibility to teach their kids about sexuality," said Bill Maier, vice president and resident psychologist for Focus on the Family, a conservative Christian organization. "The way you handle the problem is that you crack down on any sort of bullying or aggression on any child. You don't single out sexual orientation as this somehow special status."

Actually, it would a huge leap of anti-bigotry progress if schools (not to mention, e.g., the Boy Scouts) would cease to "single out" homosexuality as "this somehow special status." That's basically the whole point.

The latest "if you could only hear yourself talking" counterexample:

The American Civil Liberties Union of New Jersey in a letter sent today called on the Newark Public Schools to rescind last week's decision to censor hundreds of East Side High School yearbooks that included a photo of a male student kissing his boyfriend.
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At the direction of Newark Public Schools Superintendent Marion Bolden, school personnel used markers to block out the image of student Andre Jackson and his boyfriend, while allowing photos of heterosexual students kissing to remain. The photo was on a tribute page paid for by Jackson; tribute pages make up about 20 percent of the yearbook, and several others showed heterosexual couples kissing.
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"Treating same-sex couples differently from heterosexual couples not only disregards the fundamental guarantees of the Constitution and the laws of the State of New Jersey but also sends a dangerous message to the student body," Barocas said in the letter. "The message that LGBT students are unacceptable and undeserving serves to justify peer harassment, one of the most serious concerns schools face today."

Focus on the Family and the ACLU actually agree on a major issue -- that gay students shouldn't be "singled out"?

If it sounds too good to be true, it probably is.