Senators Ted Kenney and Gordon Smith have proposed a hate crime amendment to the defense appropriation bill the Senate is debating this week. It would add special enhancements to crimes for certain classes of victims, including homosexuals and transgenders. It’s hidden in this bill to try to ensure its passage since it might not pass on its own and the President has vowed to veto stand alone hate crime legislation. It makes it much harder for him to do so when it’s packaged with critical support for our troops.

I was first introduced to the concept of hate crimes like most Americans, from the front page of the morning paper. When I began reading the details of the story I was sickened. By the time I finished the account in the LA Times, I wanted to cry.

In Laramie, Wyoming, several years ago a homosexual student from the university there had been brutally beaten, robbed, and tied to a wooden ranch fence. He was found unconscious by a man on a bicycle who first thought he was a scarecrow.

The police arrested two men and two women in connection with the attack. The men allegedly lured their victim from the Fireside Bar, a campus hangout, by telling him they were gay. They drove in a truck to a remote spot and beat the young man mercilessly. His skull was smashed with a handgun. His hands and face were cut and his body was burned. Strung up on the fence, he was exposed overnight to 30 degree temperatures. His life was hanging by a thread. A few days later, at a hospital in Fort Collins Colorado, 22-year-old Matthew Shepard died.

Since this brutal murder in Wyoming in 1998, the effort to pass hate crime legislation—with expanded language to include "sexual preference"—has shifted into overdrive. This current bill is called “The Matthew Shepherd Law.” In spite of its proper intent to curb these attacks, such legislation is ill conceived.

I am against hate crimes, but I also am against hate crime laws for three reasons. First, they criminalize thought, not behavior. Second, they do not protect individuals, but rather select classes of people. Third, they actually encourage hostility towards one group of people, Christians.

Criminal Thought

George Orwell once said that sometimes the first duty of a responsible person is to restate the obvious. Note the obvious: Hate crime laws criminalize thought, not conduct. Assault is already punishable under existing statutes. This legislation levies an additional penalty solely for the attitude of heart: a motive called hate.

One of our most cherished freedoms is the liberty to think as we see fit, even if our thoughts are ignoble. A man's inner life has been his own. His conduct was under jurisdiction of the law, but not his convictions. Thoughts could not be made criminal.

Until recently, the law has been completely uninterested in penalizing motive. Whether one was driven to commit a crime by greed, malice, love, or hate was irrelevant. Only the conduct mattered. As far as the law was concerned, one could believe as he wished. He could like or dislike according to his whim. He could love or hate as he pleased.

Hate crime legislation changes all that. Now motive as well as conduct can be punished. This is a frightening step. "At the end of the day," wrote former ambassador Alan Keyes, "government can govern men's actions; it cannot govern their hearts. And when it attempts to govern their hearts, that is simply an excuse for the worst kind of tyranny."

Keyes’ remarks are not mere hyperbole. In April 2004, by a vote of 59 to 11, the Canadian Parliament passed bill C-250 criminalizing the expression of “hate” for homosexuality. The text reads:

Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of ... an indictable offence and is liable to imprisonment for a term not exceeding two years.

This is just the first step. Svend Robinson, the MP who authored C-250, wants the law to go beyond punishing incitement to hatred to criminalizing the anti-homosexual speech itself. It makes one wonder how an unfettered debate on same-sex marriage will be able to proceed (“All those opposed to same-sex marriage…you’re under arrest”).

The thin religious exemption included in C-250 gives Christians little cause for comfort. World magazine reports that…

…at least one Saskatchewan court has already held that certain Bible passages expose homosexuals to hatred. Even without C-250, London, Ontario, officials recently slapped a Christian mayor with a $10,000 fine for refusing to proclaim "Gay Pride Day." A Christian businessman in Toronto was fined $5,000 for refusing to print materials for a gay-rights group.

Hate crime legislation not only criminalizes thought and, in Canada, speech. It also creates another anomaly. Isn't it odd that, in this case, assaults animated by emotion are considered more abhorrent, not less? Generally, passion is a mitigating factor. Courts show lenience for crimes committed under its influence, reserving their greatest condemnation for calculated evil, thus the difference between first and second degree murder.

Hate crime legislation turns that equation on its head. Is a hit-man more noble because he lacks emotional connection to his victim? A person who commits a crime of passion is immoral, granted. But isn't it more twisted to assault, torment, or murder without any feeling of malice? Such a person is not just immoral, he's a monster.

Further, the present trend sometimes seems to make the motive more serious than the assault itself. Representative Barbara Cubin (R-Wyoming) said, "We will not stand for the arbitrary killing of other people due to any hateful act of intolerance." Los Angeles Mayor Richard Riordan said, "Angelinos have no tolerance for crimes motivated by hatred or bias of any kind." [emphasis added in both]

Why the qualifications? Why not say, "We will not stand for the killing of other people. Period." Or "Angelinos have no tolerance for crimes done for any reason"? The crime itself is reason to lament, but in these cases it's the motive that causes the outcry.

But it's worse than that. Hate crime legislation doesn't make all hate connected with assault illegal, only certain types of hate.

A Class Action

This is the second consequence of hate crime legislation. To paraphrase a line from George Orwell’s Animal Farm, though all hate is equal, some hate is more equal than others.

Consider this. According to Webster's New World Dictionary, "Hate implies a feeling of great dislike or aversion, and, with persons as the object, connotes the bearing of malice." On this meaning, virtually any crime of passion could be construed as a hate crime because it entails malice towards persons.

However, all crimes of passion are not actionable as a hate crimes. Why not? Because they don't involve a protected class of people. This raises a question. Is hate crime legislation about hate per se or is it really about something else?

Columnist George Will observed that such laws mandate penalties for particular government-disapproved states of mind. He is only partially correct. The government is not as concerned with the hateful state of mind as it is with the particular group of people the hate is directed toward.

The result of criminalizing malice under certain circumstances is that only certain types of people get protected. Will observes, "Surely Shepard's assailants would deserve no less severity if he were not gay and their motive had been, as it may partly have been, pure sadism."

Yet this is not the case. In a state with hate crime legislation, penalties levied for an assault on me personally would be milder by statutory requirement than for the very same assault on a Matthew Shepard. Why? Because as a straight, white male I do not belong to a class protected by this law.

Hate crime legislation, then, turns out to be not really about hate, but politics. It's not hatred for the victim that is punished. That's covered under existing statutes. Rather, it's hatred for a protected class—African-Americans, Jews, homosexuals, etc.—that's punished under hate crime laws. Continued...