The Fairness of Hate Crime Laws

Are hate crime laws necessary? The New York Times Opinion Pages posed that question to six experts as part of its Room for Debate series. Lambda Legal’s Deputy Legal Director, Hayley Gorenberg, writes:

Controversy accompanies prosecutions under hate crime laws, and perhaps that’s inevitable; the pattern of discrimination that shows people have been targeted based upon their personal traits springs from prejudices we have not conquered. The Supreme Court has said, in Wisconsin v. Mitchell, that we mete out extra punishment for hate crimes because they can "provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.''

Thousands upon thousands of lesbians, gay men and transgender people have had their lives scarred by discrimination, and countless died violent deaths decades before young Matthew Shepard was robbed, pistol-whipped and strung up on a fence to die because he was gay. Yet even after that murder made headlines, it took more than 10 years to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009, which, for the first time, applied federal hate crime law to crimes motivated by a victim’s actual or perceived sexual orientation or gender identity.

Even in the face of gruesome crimes it was hard to get lesbian, gay, bisexual and transgender people on the map. But perhaps we should not be surprised, since we still fight for visibility, and against silencing, in law and policy. Yesterday the Department of Justice announced a settlement in a discrimination case that stemmed from a Minnesota school district’s policy that silenced staff members who might have intervened against bullying over sexual orientation or identity. It was mere months ago that the nation allowed our military service members to step from the ominous shadows of “Don’t Ask, Don’t Tell.” And today in Puerto Rico, there is a movement afoot to erase the Commonwealth’s hate crimes law that specifically protects lesbian, gay, bisexual and transgender people even as murders of transgender women grab headlines.

With regard to the Ravi trial, our legal system recognizes that not all crimes draw blood. It’s possible to strike deep at one’s core without a bullet or a knife blade. Whether or not the proof is mustered to a New Jersey jury’s satisfaction, justice is served by a system that has properly acknowledged that if hate is a legal factor, it should be recognized in all of its most virulent forms, including those leveled at lesbian, gay, bisexual and transgender people for who they are.

Read the rest of the debate here.