Hate Crime Laws Give Certain

¶ … hate crime laws give certain people special rights and protection over others and are they, therefore, divisive and unfair?

Do these laws value the rights of some people over the rights of others?

It has been suggested that hate crime laws are unfair because they benefit only the minorities they protect. According to this view, individuals of minority racial persuasions and untraditional sexual orientation are protected by hate crime legislation, but individuals not of a minority racial background and whose gender orientation is traditional rather than non-traditional do not benefit from these types of protective legislation. Similarly, it has also been suggested that the protections afforded under hate crime legislation value the rights of those who benefit from their protections over the respective rights of everybody else.

In both cases, the perception is that hate crime laws benefit and protect only the rights and sensibilities of minorities without benefiting or protecting the rights and sensibilities of others the same way, and therefore, that legislation of this type violates the Equal Protection Clause of the United States Constitution (Friedman 2005). The inference, aside from the legal issues of constitutional protections, is that protecting the rights and sensibilities of some people while ignoring the corresponding rights and sensibilities of others is socially divisive and only increases the tensions that may already exist between various races and other differences between people in society.

A fundamental misconception about protections under hate crime legislation is that they apply only to certain classes of individuals in the same manner that Affirmative

Action legislation applies only to some minority classifications to the exclusion of others.

In the case of the latter, it is true that their benefits are available only to members of certain racial classes and other minorities, but that is because the purpose of those programs is to compensate those individuals for past inequities, some of which are still felt by those who experienced unequal treatment in the recent past, as well as by their families, even today (Miller 1990).

However, the crucial difference between those types of programs and legislation designed to redress past harm against specific minorities is that hate crime legislation applies equally to all Americans, regardless of their race, background, or any other differences (Dershowitz 2002). Legislation that prohibits discrimination and that specifically criminalizes crimes motivated by race, for example, protect the rights of all non-minorities just as much as they protect the rights of minorities. The purpose of legislation against hate crimes is not to compensate any particular class of persons, but rather, to protect all people equally. It is no less a crime for a criminal with a minority background to perpetrate a crime motivated by racial animus against a non-minority than it is for a non-minority person to victimize an individual from a minority background.

It has also been suggested that, in effect, this equality is relatively meaningless, because non-minorities are so much more rarely the victims of hate crimes, and that, therefore, these laws protect and benefit minorities more than they protect or benefit non- minorities. Ironically, the accurate analysis of this observation is precisely backwards:

the fact that minorities are so much more likely to be targeted by racially motivated crimes is hardly a reason to consider the laws that criminalize such conduct "unfair" to non-minorities. If anything, that reality only reinforces the absolute need for laws that prohibit racially motivated crimes. The fact of the matter is that minorities are much more likely to be the victims of racial hatred than are non-minorities, and that non- minorities are more often the perpetrators of racially motivated crimes than are individuals from minority backgrounds. Certainly, there are instances of racially motivated crimes perpetrated by minorities against non-minorities; wherever they occur, those crimes are addressed exactly the same as the reverse situation, exactly as they should be. In any case, the point is actually moot, because, regardless of how often it occurs or what the identity is of perpetrator or victim, the laws specifically addressing racially motivated crimes protect both minorities and non-minorities equally however those crimes occur, or between whom. As far as the issue of divisiveness is concerned, what is divisive in society is failing to protect innocent victims of racially motivated crimes, not simply providing the same equal protection of laws prohibiting race crimes to all, without regard to race.