The recent, unjustified killing of young black men is proving the adage "bad facts make bad law." It is also presenting the LGBTQ community with legal and political opportunity.
The bad facts that confront us are horrendous. Systemic racism persists in this country, manifested by the killing of African American men in Brunswick, Georgia, and Minneapolis, Minnesota.
The bad law confronting us and the is the so-called "hate crimes" legislation pending in the Georgia General Assembly (H.B. 426). H.B. 426 would dictate mandatory jail time and fines for criminal defendants who hold socially unacceptable views on "race, color, religion, national origin, sexual orientation, gender, mental disability or physical disability" if those views can be related to an underlying crime.
Hate crimes statutes impose penalties for what people think, not just what they do. Many thoughts are bad, disgusting and vile, such as racism. Other ideas, like whether homosexuality is morally wrong, have been a part of Western civilization for 2,000 years. Most societies outlaw thoughts and words they abhor, but not our society -- at least not until the political ascendency of the "progressives."
To be fair, thoughts or words alone are not punishable under the bill; however, mandatory punishment when associated with another crime puts free speech and free thought at risk. Also to be fair under the present system the sentencing judge may take into account a broad array of factors including motives, remorse or the lack thereof. A line is crossed when the law singles out disfavored ideas for mandatory punishment.
Not only is H.B. 426 at cross purposes with the First Amendment in theory, it opens the door to abuse in practice. If the bill becomes law, a social media post showing a black defendant wearing a black power T-shirt or a white defendant with a Confederate flag could well send either to prison. If the accused belongs to a church, mosque or synagogue that holds that homosexuality is a sin, it could be used as evidence of hate resulting in mandatory jail time.
Hate crime legislation, which has been adopted in 45 states, has failed to live up to its billing as an agent for social change. In the words of Harvard professor Michael Bronski, "they essentially come down to feel good laws." Even when pursued with sincere motives, hate crimes statutes are placebos offered up by 1. Politicians to pacify their constituents and 2. Activists to justify their existence. Even though hate crimes statutes are a failed social experiment, H.B. 426 provides the LGBTQ community with an opportunity to gain legal status under Georgia law. That is the real reason the many in the Atlanta business community including the Metro Atlanta Chamber of Commerce are pushing so hard for passage.
H.B. 426 is not an effective response to the racially motivated tragedies of the past few months. America's race problems are real and complex. They must be addressed at every level including the law. (Making it easier to sue police agencies by lowering the "deliberate indifference" requirement might be a good start but that is a discussion for another letter.) Hate crimes legislation only distracts us from making real progress on race by substituting motion for progress -- a fact which is largely irrelevant to the objectives of the LGBTQ community and their business allies.
To address the crisis at hand, we do not need more criminal laws. We need to apply the laws we have fairly and consistently. That point can be clearly seen by the attempted cover up of the Ahmaud Arbery killing. The district attorney could not find a crime until the governor, attorney general and the Georgia Bureau of Investigation got involved. Now, we have a murder charge. Murder charges change the street; hate crimes statutes do not.
In 1904 Justice Oliver Wendell Holmes Jr. reasoned that "immediate overwhelming interest ... appeals to the feelings and distorts the judgment" and as a result bad facts make bad law. Time and H.R. 426 have vindicated his judgment.
David Blevins is a Dalton attorney.