Hate crimes & subordination

[David Cruz]

On Mon, 6 Mar 2000, James Maule wrote:

> [snip]
> Which brings me back to the First Amendment problem. Suppose A assaults
> B. B is a member of a protected class. [snip]

EVERYONE is a member of a so-called "protected class" under hate crime
laws in U.S jurisdictions with which I am familiar.  These laws penalize
certain crimes committed on the basis of certain characteristics, not
membership in only some groups defined by such a characteristic.
*Everyone* has a race, including white people (even if they may be more
accustomed not to thinking of themselves as raced); *everyone* has a
gender; even men; *everyone* has a sexual orientation, even the
heterosexually identified.  Thus, if a white woman is battered because she
is white or a man attacked because he is male, they have been victims of
hate crimes.  This may be a flaw given the concerns about systemic
subordination that ground hate crime enhancements, but that's how the laws
(are supposed to) work.

In addition, I believe that Professor Maule's rejoinders about
short-changing nearsighted people of protection that our society deems
appropriate miss the point that our society is not disfigured by
sightedness subordination the way it is by racial or gender or sexual
orientation subordination.  This does not mean that the First Amendment
concerns necessarily do not prevail here, but only that the issues are not
as simple as I took Maule to be treating them.

To anyone genuinely interested in the systemic subordination concerns, I
would commend Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L.
Rev. 1431, 1462-1469 (1992), which thoughtfully addresses ways in which
heterosexist violence, like lynching, operates to subordinate lesbigay
people.  Without such attention to the ugly realities confronting many of
us, any First Amendment analysis of hate crime laws is, in my view,
necessarily incomplete.

-David B. Cruz, USC Law (Cal.)