Hate Crimes and Symbolic Legislation
My FindLaw column for today is called The President's Disingenuous Arguments Against Expanding the Federal Hate Crime Law, and (as the title suggests) it argues that the objections offered by the Bush Administration to pending legislation that would expand the federal hate crime law to cover, inter alia, crimes motivated by bias on the basis of sexual orientation, are disingenuous: The objections, if taken seriously, would do away with all hate crime legislation. I do indicate in the column that there are nonetheless legitimate reasons to oppose all hate crime laws, although I don't ultimately evaluate the strength of those reasons.
Here I want to raise a related issue that I don't address in the column. The following objection to hate crime laws is sometimes made: These laws are purely symbolic because the underlying crimes---which can be offenses like murder or aggravated assault---already carry severe penalties, including life imprisonment or even death. Adding an extra couple of years for a forbidden motive of hate has no practical impact. To this objection, one then hears the following response: Even if that's true, so what? Expressing the community's added moral outrage over hate-motivated murder or aggravated assault is itself a valid basis for legislation. Symbols matter.
What can we say about this argument? Notice first that it's not clear which way the argument that these laws are "only symbolic" cuts. If that's true, as the objectors state, then what's the harm in enacting a hate crime law?
But notice also that symbolic legislation can be dangerous. In my first post on Gonzales v. Carhart, I quoted Judge Posner's objection to a state partial-birth abortion ban: "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue." Of course, in the partial-birth abortion cases, the plaintiffs argue that the bans are not "merely" symbolic; on the contrary, they complain that these bans have real costs in terms of women's health.
Yet I'd be willing to object to some laws that are "merely" symbolic---in particular, to state laws that grant same-sex couples in state-sanctioned civil unions all the formal rights of marriage but withhold the term "marriage" from them. Such purely symbolic harm can have no purpose other than to treat persons in same-sex couples as second-class citizens, even if they do not withhold any tangible benefits. That strikes me as an illegitimate state purpose, even if no additional concrete harm befalls same-sex couples as a result.
To be sure, it's possible, even easy, to distinguish civil-union-only laws from hate-crime laws: Designating same-sex couples second class-citizens is an impermissible message for a legislature to express through its laws; by contrast, treating one category of despicable crime---those motivated by hatred on the basis of any of a list of characteristics of the victim---as worse than the other despicable crimes within that category, is a permissible message to convey through legislation.
Accordingly, to defend hate-crime legislation on the ground that symbols matter need not send courts sliding down the slippery slope to upholding partial-birth abortion bans and civil-unions-only-for-same-sex-couples laws. Nonetheless, even if symbolism is sometimes a legitimate basis for legislation, too frequent reliance on symbolism risks opening the door---if only as a matter of politics---to symbolic legislation of the more dangerous sort.
Here I want to raise a related issue that I don't address in the column. The following objection to hate crime laws is sometimes made: These laws are purely symbolic because the underlying crimes---which can be offenses like murder or aggravated assault---already carry severe penalties, including life imprisonment or even death. Adding an extra couple of years for a forbidden motive of hate has no practical impact. To this objection, one then hears the following response: Even if that's true, so what? Expressing the community's added moral outrage over hate-motivated murder or aggravated assault is itself a valid basis for legislation. Symbols matter.
What can we say about this argument? Notice first that it's not clear which way the argument that these laws are "only symbolic" cuts. If that's true, as the objectors state, then what's the harm in enacting a hate crime law?
But notice also that symbolic legislation can be dangerous. In my first post on Gonzales v. Carhart, I quoted Judge Posner's objection to a state partial-birth abortion ban: "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue." Of course, in the partial-birth abortion cases, the plaintiffs argue that the bans are not "merely" symbolic; on the contrary, they complain that these bans have real costs in terms of women's health.
Yet I'd be willing to object to some laws that are "merely" symbolic---in particular, to state laws that grant same-sex couples in state-sanctioned civil unions all the formal rights of marriage but withhold the term "marriage" from them. Such purely symbolic harm can have no purpose other than to treat persons in same-sex couples as second-class citizens, even if they do not withhold any tangible benefits. That strikes me as an illegitimate state purpose, even if no additional concrete harm befalls same-sex couples as a result.
To be sure, it's possible, even easy, to distinguish civil-union-only laws from hate-crime laws: Designating same-sex couples second class-citizens is an impermissible message for a legislature to express through its laws; by contrast, treating one category of despicable crime---those motivated by hatred on the basis of any of a list of characteristics of the victim---as worse than the other despicable crimes within that category, is a permissible message to convey through legislation.
Accordingly, to defend hate-crime legislation on the ground that symbols matter need not send courts sliding down the slippery slope to upholding partial-birth abortion bans and civil-unions-only-for-same-sex-couples laws. Nonetheless, even if symbolism is sometimes a legitimate basis for legislation, too frequent reliance on symbolism risks opening the door---if only as a matter of politics---to symbolic legislation of the more dangerous sort.
posted by Michael C. Dorf @ 7:28 AM
5 Comments:
At 10:03 AM,
Tam said…
Given the prominent position that the broader debate on gay rights occupies in contemporary American political life, it would be very reasonable, I think, to infer even from complete inaction by Congress that they have consciously chosen not to extend whatever protections to gays that are afforded to other groups that were traditionally discriminate against. Inaction, in this context, itself sends a message.
Of course, Congress has actually chosen to act affirmatively. The President's veto, a fortiori, unequivocally sends a message. This is, as Mike points out in his findlaw article, the President's real purpose. It's not that he wants to avoid symbolic legislative action, but just to send the opposite message, in a "wink wink nod nod" style.
I suppose one can argue that memorializing the message in a statute on the books carries greater symbolic force and permanence than exercising a veto. I find this unpersuasive, especially if the goal of sending the message is to win votes.
At 10:41 AM,
Marty Lederman said…
Mike: The Bush Administration doesn't object to the Commerce Clause provision on constitutional grounds. Its constitutional objection is limited to the race-dsicrimination provision, which does *not* include a commerce element. The basis for that provision is section 2 of the Thirteenth Amendment.
I discuss these questions -- and link to our DOJ analysis from 2000 -- here:
http://balkin.blogspot.com/2007/05/new-hate-crimes-act-is-constitutional.html
At 11:26 AM,
egarber said…
I think the word "symbolic" dilutes the reality that there is a *tangible* offense at play in some hate crimes.
If a KKK member hangs and burns a black person, that's more than symbolic; it's real aggression, a tangible effort to intimidate and oppress with bias. Every black person would have something unique to fear about the next action of this individual.
In other words, my KKK example carries with it an aggravating factor that wouldn't apply to say, a grocery store robbery that results randomly in the death of the same black man (not that this scenario couldn't have its own aggravating factors of a different sort).
So I think it's very possible to avoid defending symbolic laws (if one so desires), and still favor hate crimes legislation.
At 2:46 PM,
Adam P. said…
I'm quite in favor of the hate crimes bill, even though I strongly believe it's symbolic and will have little practical effect. It's tough because the symbolism is the desired effect, in a way. The bill won't likely have a deterrent effect on specific instances of aggression,but saying "criminal acts motivated by animus for gays and the disabled is just as bad as those motivated by other animus" is an important consequence of the legislation. That's a politically powerful statement, and reflects a changing social norm, that will in turn hopefully continue to change social norms.
Of course, any law that makes it illegal to do something has some practical effect, as egarber points out. But I think this legislation, and the opposition to it, makes it clear that the greater symbolic idea of equality is the issue. I do not think President Bush thinks gay hate crimes should be legal. I just don't think he thinks that hating gays should be condemned by the law.
At 1:16 PM,
Sobek said…
"The objections, if taken seriously, would do away with all hate crime legislation."
No, only federal hate crime legislation. There is absolutely no constitutional reason that individual states can't pass the same hate crimes bills.
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