by Curtis Hill
In the world of politics, what legislation is called unfortunately may matter more than what it’s intended to do.
Consider, for example, health care. Everyone wants health care to be affordable. So name a bill the “Affordable Health Care Act,” and some will immediately be on board. After all, who wants to be against “affordable health care”?
So it is with hate crimes. On its surface, the term “hate crimes” suggests that it is criminal to hate — and therefore what right-thinking person would oppose a bill targeting hate? In fact, anyone opposed to any bill called “hate crimes” should prepare to be accused of bigotry, racism and the like.
However, I believe Hoosiers will dig beyond the surface of what a bill is called and focus on what a bill is intended to fix.
As Shakespeare said, “What’s in a name?” No matter what you call it, “hate” is a horrible thing. Unquestionably, we need less of it. But is it something we should legislate?
“Hate” is an emotion…a belief…a thought. Although we can agree that hate is wrong and should be roundly discouraged, it has not been our nation’s practice to criminalize thought.
Our Constitution protects everyone’s right to think, believe and generally speak without fear of prosecution. We are even — or perhaps especially – free to share thoughts that may be unpopular or disagreeable.
Criminal statutes are designed to address wrongful conduct — actions taken by one person against another that infringe upon the other’s freedom. Our laws prohibit doing something bad. They do not prohibit thinking something bad.
So “hate-crimes” legislation that focuses on criminalizing hateful belief, speech or thought — while well intended — would be inconsistent with our existing standards for establishing criminal behavior.
But what of the hate that leads to or inspires harmful behavior? What of wrongful conduct that is the manifestation of hate?
Burning a cross is not just trespass or mischief. Spray-painting racial epithets is not just vandalism or defacing property. These acts are the very manifestation of hate. They are symbols, historically used, to send a broader message. That message? Violence is on the way! It is a message designed to strike panic and fear. It is a purposeful message to intimidate and terrorize its target.
Manifestations of hate that amount to wrongful actions deserve to be prohibited by law.
Hate can often ignite into nasty conduct. When it does, victims of this conduct often suffer both physically and emotionally. Certainly, it is worth considering the law’s place in guarding against conduct borne of hate.
But should some groups receive greater protection from hateful conduct than others? Designating specific groups to be “protected” necessarily implies the existence of other groups that are not. Although one might argue that certain groups merit protection over others, this argument oddly contradicts the very essence of equality that such “protection” is intended to ensure.
The protected class of race was established to guard against discriminatory practices that historically impacted blacks. But discriminating against someone solely because they are white is just as much a violation of the protected class of race – regardless that “whites“ have not been determined to be the victims of long-term patterns of discrimination.
In Indiana, policymakers have extended protected-class status to groups such as felons and smokers — suggesting that the list of groups to single out could be limitless. Worse yet is that somebody gets to pick who it’s OK to hate and who it’s not.
Any group with an identifiable characteristic should qualify for protection. Blacks, whites, Asians, men, women, children, gays, lesbians, transgenders, heterosexuals — as well as police, military, Jews, Catholics, Muslims, blondes, redheads, men with freckles and so on.
In fact, we should stop making lists altogether.If it is appropriate to prohibit hateful conduct aimed at ANY group, then it is appropriate to prohibit hateful conduct aimed at ALL groups.
If we are to criminalize hateful conduct, then we cannot condemn hateful conduct against some and ignore hateful conduct against others.
Our laws may never be able to prevent people from harboring within their hearts hatred for other human beings, but our laws always can and should offer equal protection to all people — from injury, intimidation, threats and property crimes committed by any who would wish to do them harm.
Curtis Hill is the 43rd Attorney General of Indiana.
