One Step Forward, One Step Back

On Friday, the Alabama House of Representatives voted to broaden the state's hate crimes law to include sexual orientation. It's good news for the GLBT community, which saw a bittersweet outcome that same week. Last Tuesday, Allen Andrade was found guilty of first-degree murder and bias-motivated crime and sentenced to mandatory life in prison for the killing of 18-year-old transgender Angie Zapata.

Andrade's defense had sought a second-degree murder charge, claiming that Andrade killed Zapata in the heat of passion after discovering that Zapata was a he (a.k.a. "a trans-panic"). It took the jury less than two hours to convict him of first degree murder under Colorado's hate-crime law, which included sexual identity and gender as part of the law in 2005.

The case is one of the first in the country to use hate-crime laws as applied to the killing of a transgender person. Andrade's conviction and sentence is being called many things: a first; a landmark; a rallying point for gays, lesbians, bisexuals, and transgenders (GLBT).

The Gay & Lesbian Alliance Against Defamation blog–among others–said:

[H]ate violence[against GLBT people] will not be tolerated.  The jury sent that message loud and clear yesterday afternoon.  It was remarkable to see.

And the political(D) group, Progress Now Colorado, has launched a website, www.angiezapata.com, detailing Ms. Zapata's story. It also has information on the GLBT scene; and recently twittered, "Justice for Angie should be justice for all. Sign to support federal hate crime leg."

There are few people, however, who are calling the conviction what it really is: A step backwards for everyone. Regardless of sexual oriention–be it straight, gay, bisexual, transgender, whatever– the push for hate-crime legislation is a bad idea.

Reason Senior Editor Jacob Sullum explained exactly why that is in a great 1992 piece:

By creating a distinction based on motive, hate-crime laws are bound to punish  people based on their speech since that is usually the only evidence of bigoted motivation. As the Wisconsin Supreme Court observed: "There are numerous instances where the statute can be applied to convert a misdemeanor to a felony merely because of the spoken word"….

With such careful distinctions to be made, there's always the danger that less conscientious prosecutors might abuse their discretion. In any case that involves a slur or an element of bigotry, prosecutors can choose to bring hatecrime charges, automatically boosting the penalty that the defendant might face.

And again in 2007, when a federal hate-crime bill was up for a veto:

It's not a stretch to say that hate crime laws, by their very nature, punish people for their opinions. A mugger who robs a Jew because he's well-dressed is punished less severely than a mugger who robs a Jew based on the belief that Jews get their money only by cheating Christians. A thug who beats an old lady in a wheelchair just for fun is punished less severely than a thug who does so because he believes disabled people are leeches….

The fact that Andrade was convicted for his opinions while in custody, as much for his actual crime, is fairly evident. As sharply observed by CNN's Jami Floyd, Andrade was certainly homophobic, but "what was not proved [at the trial] was premeditation." In his closing statement, Chief Deputy District Attorney Robb Miller told jurors that "Everyone deserves equal protection under the law." He's right. Everyone deserves equal protection. Even those on trial. Even homophobes.

Today is the first day gay Iowans can apply for a marriage license and GLBT groups are no doubt (and rightfully) applauding the event as a step toward equality for persons of every stripe. But these same groups should be careful when pushing for hate crime laws. The death of Angie Zapata is tragic and Andrade deserved punished for the physical crime he admitted to doing. But by calling for hate crime legislation, GLBT advocates walk an ethically shaky line similar to the pro-life-and-pro-death-penalty crowd. To demand equal treatment in marriage, while advocating discriminatory protection in regards to violence and speech sends a confusing message: What is really being sought, equality or special privileges? Here's hoping the Zapata family eventually finds some peace; that everyone can get hitched how they see fit, and that no one is punished for what they think.

Cathy Young has a recent story on what some liberals really think of free speech. Associate Editor Damon W. Root and Sullum discuss the Iowa gay marriage decision here and here. Reason on hate crime here.