Hate Crimes and Symbolic Legislation

My FindLaw column for today is called The President's Disingenuous Arguments Against Expanding the Federal Hate Crime Law, and (as the title suggests) it argues that the objections offered by the Bush Administration to pending legislation that would expand the federal hate crime law to cover, inter alia, crimes motivated by bias on the basis of sexual orientation, are disingenuous: The objections, if taken seriously, would do away with all hate crime legislation. I do indicate in the column that there are nonetheless legitimate reasons to oppose all hate crime laws, although I don't ultimately evaluate the strength of those reasons.

Here I want to raise a related issue that I don't address in the column. The following objection to hate crime laws is sometimes made: These laws are purely symbolic because the underlying crimes---which can be offenses like murder or aggravated assault---already carry severe penalties, including life imprisonment or even death. Adding an extra couple of years for a forbidden motive of hate has no practical impact. To this objection, one then hears the following response: Even if that's true, so what? Expressing the community's added moral outrage over hate-motivated murder or aggravated assault is itself a valid basis for legislation. Symbols matter.

What can we say about this argument? Notice first that it's not clear which way the argument that these laws are "only symbolic" cuts. If that's true, as the objectors state, then what's the harm in enacting a hate crime law?

But notice also that symbolic legislation can be dangerous. In my first post on Gonzales v. Carhart, I quoted Judge Posner's objection to a state partial-birth abortion ban: "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue." Of course, in the partial-birth abortion cases, the plaintiffs argue that the bans are not "merely" symbolic; on the contrary, they complain that these bans have real costs in terms of women's health.

Yet I'd be willing to object to some laws that are "merely" symbolic---in particular, to state laws that grant same-sex couples in state-sanctioned civil unions all the formal rights of marriage but withhold the term "marriage" from them. Such purely symbolic harm can have no purpose other than to treat persons in same-sex couples as second-class citizens, even if they do not withhold any tangible benefits. That strikes me as an illegitimate state purpose, even if no additional concrete harm befalls same-sex couples as a result.

To be sure, it's possible, even easy, to distinguish civil-union-only laws from hate-crime laws: Designating same-sex couples second class-citizens is an impermissible message for a legislature to express through its laws; by contrast, treating one category of despicable crime---those motivated by hatred on the basis of any of a list of characteristics of the victim---as worse than the other despicable crimes within that category, is a permissible message to convey through legislation.

Accordingly, to defend hate-crime legislation on the ground that symbols matter need not send courts sliding down the slippery slope to upholding partial-birth abortion bans and civil-unions-only-for-same-sex-couples laws. Nonetheless, even if symbolism is sometimes a legitimate basis for legislation, too frequent reliance on symbolism risks opening the door---if only as a matter of politics---to symbolic legislation of the more dangerous sort.