By: Brian Sikma
Senators Ted Kennedy (D-MA) and Gordon Smith (R-OR) have once again joined forces to co-sponsor and pass federal hate crimes legislation. S. 1105 would make “sexual orientation” and “gender identity” protected classes in federal law. Kennedy and Smith attempted to pass similar legislation in 2004. Although then-Senate Majority Leader Bill First (R-TN) was able to outmaneuver liberal parliamentary games, the bill passed the Senate. It met its ultimate demise, however, in the House where Majority Leader Tom DeLay (R-TX) promised to pull out all the stops in killing the bill.
Aside from the question of if there is federal jurisdiction for this legislation, the question arises as to whether or not this bill’s passage would be a violation the U.S. Constitution’s 14th Amendment mandate for equal protection of all citizens. By determining that a particular class of citizens are entitled to greater protections than citizens who are not members of the protected class, it would appear that Congress is mandating unequal protection for victims of crime.
In the case of S. 1105, homosexuals, cross dressers, and other individuals engaging in similar, non-moral lifestyles would be offered greater protections because crimes committed against them would be considered “hate crimes” and would therefore carry extra heavy penalties. Similar crimes against citizens not engaged in deviant behavior would be less serious offenses. In a court of law then, the equal protection rights of homosexuals would be greater and the equal protection rights of heterosexuals would be less.
This attempt to create two distinct justice systems, one for homosexuals and one for heterosexuals, would lead to a complete undoing of the proper understanding of the equal protection of law. The creation of two criminal categories would lead to a legal anarchy. The 14th Amendment does not allow the federal government to create or enforce two different types of justice systems. It does not allow one form of equal protection for one class, and another form of equal protection for another class. If it did, it would be a fundamental violation of the principle that all men and women are created equal and that they are endowed-in other words entitled to-certain unalienable rights.
To assume that the equal protection clause protects a particular class of citizens from the state’s attempt to discriminate against them on the basis of behavior is to turn the clause into a monster that has the power to wipe away all semblance of a moral order and justice in our country. True equal protection would be the consideration of the crime committed and not the underlying motives for the crime. True equal protection would be the even and fair handed application of justice to each and every case, regardless of the victims social, mental, racial or sexual status. By assuming that a crime committed against a homosexual is a hate crime, S. 1105 imposes a special protection on the legal procedure simply because the victim is a part of a 3% minority.
To not only assume that we can know the motives of a crime but to then reconstruct the system of justice to protect some more than others is a simple violation of the Constitution of the United States. For Sen. Kennedy and Sen. Smith to put forward this legislation, and then work so hard for its passage, indicates that they either do not fully understand the idea of equal protection, or that they simply prefer to disregard with reckless abandon the Constitution of the United States. As United States Senators these men need to seriously reconsider their support of S. 1105 in light of the oath that they have taken to uphold the Constitution of the United States.
Partial justice is no justice at all. For the law to protect one group more than another is to destroy the idea that an absolute standard of right and wrong exists and that the justice system must act in accordance to that principle.