Editors Note: This is the sort of article that tends to annoy the purist lefties that generally enjoy my columns in the newspaper. Every now and then, I write something that shows that I’m not just reflexively a liberal; there are issues on which I’m more of a libertarian. However, contrary to what some of my right-wing friends think, having libertarian tendencies doesn’t make one a Republican — quite the contrary.


It’s Time to Stop Legislating Inequality

Two recent events indicate that, even in America’s third century of freedom and democracy, we’re still not comfortable with the concept that all men are created equal. Many of us believe that some of our citizens should be a little less equal; others believe they should be just a bit more.

While the California Supreme Court was upholding Proposition 8, which banned gays from marrying like the rest of us, the Local Law Enforcement Hate Crimes Prevention Act was making its way from Congress to the Oval Office. Informally known as the Matthew Shepard Act, this legislation extends federal resources, including manpower, to state and local law enforcement to prosecute crimes against people victimized for their sexual orientation. It moves in a direction that’s ostensibly opposite, yet paradoxically similar to Prop 8.

Proposition 8 was fueled by homophobia, spite and religious bigotry. The Shepard Act has its heart in the right place, but not its head. And both pieces of legislation should offend any libertarian who takes the Constitution and the Declaration of Independence seriously.

The Shepard Act suffers from the same flaw as all such legislation, which is that the basic concept of “hate crimes” is wrong. What do criminals’ prejudices toward their victims have to do with their crimes? If a mugger assaults me because he wants the $12.00 in my wallet, is he less guilty than the thugs who injure people because they detest their victims’ race, religion or sexual orientation?

Because we have statutes against kidnapping, torture and murder, the monsters who kidnapped, tortured and murdered gay student Matthew Shepard in Wyoming are serving life sentences. Prosecutors didn’t need hate crime laws to imprison them, because such behaviors were already illegal.

Hate crime laws seek to punish attitudes toward protected groups of people who’ve been designated special cases. But why should our legal system treat people with hateful value systems differently? Homophobia, anti-Semitism, racism and sexism are reprehensible mind-sets, but they’re not crimes. Crimes necessarily involve overt behaviors.

The problem with hate crime laws is twofold. First, the law should affirm equality, rather than elevate protected classes above the rest of us, codifying inequality by making some groups “more equal” than others. Second, laws aimed at forcing people to respect or feel tolerance for those they despise criminalize feelings, rather than actions.

The Traditional Values Coalition (TVC), a far-right Christian lobbying group, has published 25 objections to hate crime legislation. Most of the list involves the sorts of “slippery slope” arguments espoused by right-wing religious fanatics worried that their pastor’s right to spew hate speech on Sundays might be infringed on, or, to cite one of their more-ridiculous scenarios, that government will compel parochial schools to brainwash their students with tolerant attitudes.

Here, in the most-religious nation in the developed world, the TVC’s fearful hysteria is almost completely disingenuous. On the Religious Right, homophobia has supplanted racism as the cause celebre, and we Americans take the Bible very seriously (a 2006 Pew Research poll found that “78% consider it the word of God”). The Old Testament mandates that, “If a man has sex with another man, kill them both” (Leviticus 20:13), while the New Testament deems homosexuals “worthy of death” (St. Paul in Romans 1:32), so there’s not much chance that, in America, tolerance will suddenly start running rampant.

However, even fundamentalist Christians are right once or twice a decade, and there is one legitimate issue on the TVC list: Hate crime laws criminalize ideas. This slippery slope approaches the Orwellian concept of “thoughtcrimes.”

Opponents of bigotry should focus on discriminatory actions aimed at persecuted groups and support parity for all our citizens. For example, our military, which is desperately in need of Arabic speakers, recently discharged a translator for violating its “don’t ask, don’t tell” policy. That was an unfair policy worth opposing.

However, the concept of more equal is an oxymoron. Affirmative-action-type legislation, such as the Shepard Act, offends people outside the protected classes, including those of us who normally support them. Ultimately, how one directs federal anti-crime resources is a zero-sum game — resources spent prosecuting thought criminals are resources that can’t be directed against “ordinary” criminals.

Similarly, among the fatuous Republican slanders directed against Supreme Court nominee Sonia Sotomayor, there is one legitimate issue. In 2003, the city of New Haven threw out the results of a test for promoting firemen because all 19 black firemen who took it failed. White applicants who passed, led by a dyslexic firefighter who spent thousands of dollars preparing for the test, then sued the city, alleging reverse discrimination, based on the 14th Amendment’s equal protection clause.

Judge Sotomayor upheld a lower court ruling supporting the city of New Haven’s action. If every prospective judge were rejected for one bad decision, the Supreme Court would be empty, but that doesn’t make this particular ruling any more palatable or any more constitutional.

President Obama plans to sign the Matthew Shepard Act; however, the time should be fast approaching when we start moving away from legislated inequality, even when its heart is in the right place. Mr. Obama’s election was surely a sign that it’s just about that time.


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