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Hate Crimes, Homosexuals, and the Constitution Anthony S Mitchell Hamline School of Law Mitchell Hamline Open Access Faculty Scholarship 1994 Hate Crimes, Homosexuals, and the Constitution Anthony S. Winer Mitchell Hamline School of Law, [email protected] Publication Information 29 Harvard Civil Rights-Civil Liberties Law Review 387 (1994) Repository Citation Winer, Anthony S., "Hate Crimes, Homosexuals, and the Constitution" (1994). Faculty Scholarship. Paper 178. http://open.mitchellhamline.edu/facsch/178 This Article is brought to you for free and open access by Mitchell Hamline Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. Hate Crimes, Homosexuals, and the Constitution Abstract This Article begins with an analysis of certain features of the Equal Protection Clause of the Fourteenth Amendment and demonstrates that this clause establishes a fundamental right to the equal benefit of al ws protecting personal security. Laws protecting personal security must be applied evenhandedly. Any discriminatory application of such laws is presumptively invalid under the Equal Protection Clause. This Article next shows that gay men and lesbians are among the most common victims of hate crime, that hate crimes against gays and lesbians are significant, persistent and widespread, and that gays and lesbians have a substantial stake in the manner in which the hate crime phenomenon is addressed. However, the interest of homosexuals in hate crime legislation is far more compelling than that. Because of societal antipathy toward gay men and lesbians, legislatures frequently exclude lesbians and gay men from the protection of hate crime statutes. In such cases, homosexuals are denied the equal benefit of al ws protecting personal security, a right required by the Equal Protection Clause. This Article thus concludes that homosexual men and women have much more than a mere interest in the protection of hate crime statutes. Once a state decides to enact a hate crime statute protecting members of certain other societal groups, homosexuals have a constitutional right to its protection as well. Keywords Homosexuality, equality, constitutional rights, liberties Disciplines Human Rights Law | Sexuality and the Law This article is available at Mitchell Hamline Open Access: http://open.mitchellhamline.edu/facsch/178 HATE CRIMES, HOMOSEXUALS, AND THE CONSTITUTIONCONSTJITUTION Anthony S. Winer* Issues regarding homosexuality and the rights of lesbians and gay men have been at the forefront of public discourse in recent months. These issues have arisen in a broad variety of contexts. Some of the more visible controversies have involved the service of lesbians and gay men in the armed forces,!forces,' local and statewide efforts to limit civil rights for lesbians and gay men,2men,2 and questions concerning rights to marriage, adop-adop­ 3 tion, and child custody.3 Another topic of ongoing national debate in recent years has been the question of so-called "hate crimes." Hate crimes can be characterized as violent crimes against members of minority groups because of the attack­attack- ers' prejudice against those groups. Attacks of this kind gained national notoriety in thethe late 1980s and early 1990s with such incidents as the racially motivated killings in the Bensonhurst,Bensonhurst,44 Howard Beach,Beach,S5 and Crown Heights 6 sections of New York City. Violence based on social prejudice has engendered public outrage, and state and local governments have enacted numerous laws and ordinances to deal with these hate-motivated crimes.crimes . *Assistant• Assistant Professor, William Mitchell College of Law, St. Paul, Minnesota. Many people provided invaluable assistance in the various phases of the preparation of this Article. At New York University School of Law, I received guidance and encouragement at the early stages of this work from Professor William Nelson and Thomas Stoddard, former executive director of Lambda Legal Defense and Education Fund and Adjunct Associate Professor of Law. At William Mitchell, I received helpful comments and advice on early drafts from Professors Kenneth Kirwin, Daniel Kleinberger, Russell Pannier, and Michael Steenson. My research assistants were William Wassweiler, Steven Sidwell, Lisa Janzen, Wesley Scott, and Joanne Piper-Maurer. The contributions of all were deeply appreciated; any errors and misjudgments contained herein are entirely my own. 1I See, e.g., Paul M. Barrett, Ruling on Pentagon's Gay Ban Is Set Aside, WALL ST. J., Jan. 10, 1994, at B6; Eric Schmitt, Clinton at Impasse with Joint Chiefs in Gay Troop Talks, N.Y. TIMES, July 2, 1993, at AI.Al. 2 See, e.g., Timothy Egan, Voters in Oregon Back Local Anti-GayAnti·Gay Rules, N.Y. TIMES, July 1, 1993, at A6; Oregon Lawmakers Ban Local Votes on Gay Bias, N.Y. TIMES, July 30, 1993, at A8. 3 See, e.g., Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that Hawaii's marriage laws denied same-sex couples access to marital status); Flowers v. Flowers, 1993 WL 542086 (Tenn., December 30, 1993) (upholding on procedural grounds award of temporary custody to grandparents of children of a lesbian mother); Mother Files Suit to Block Adoption of Her Child by a Gay Couple, N.Y. TIMES, Sept. 20, 1993, at A8. 4 See, e.g., Laurie Goodstein, Youth Hunted in Brooklyn Killing Surrenders, WASH. POST, Sept. 1, 1989, at A3. 65 See, e.g., Howard Beach Retrial Starts, WASH. POST, Sept. 5, 1990, at A9. 6 See, e.g., Alan Finder, A Crown Heights Remark Returns toto Trouble Cuomo, N.Y. TIMES, Aug. 1, 1993, at CI.Cl. HeinOnline -- 29 Harv C.R.-C.L. L. Rev. 387 1994 388388 HarvardHarvard CivilCivil Rights-CivilRights-Civil LibertiesLiberties Law ReviewReview [Vol.[Vol. 29 SuchSuch lawslaws havehave generated nearlynearly asas muchmuch controversycontroversy as thethe violenceviolence 7 thatthat inspiredinspired them,them, particularlyparticularly inin discussionsdiscussions overover theirtheir constitutionality:7constitutionality. Indeed,Indeed, thethe UnitedUnited StatesStates Supreme Court, inin twotwo recent casescases8 decideddecided withinwithin aa year ofof eacheach other, determineddetermined thatthat one suchsuch lawlaw waswas unconsti­unconsti- tutionaltutional99 and thethe other valid. to10 InIn spitespite of thethe recentrecent discussionsdiscussions ofof legallegal issuesissues affectingaffecting homosexu­homosexu- als,als, and inin spitespite ofof thethe current debatedebate concerningconcerning thethe constitutionalityconstitutionality ofof hate crimecrime statutes, there hashas asas yet been littlelittle discussion of thethe interre­interre- lationship betweenbetween lesbianslesbians andand gaygay men, thethe phenomenon ofof hate crime, andand thethe constitutionality of hate crime statutes.statutes.'ll1 An importantimportant point cancan be made about thethe extent to which lesbianslesbians and gay menmen may claim thethe protection of hatehate crimecrime statutes under thethe Constitution. This Article begins with an analysis of certaincertain featuresfeatures of the Equal Protection Clause of thethe Fourteenth Amendment and demonstratesdemonstrates that this clause establishesestablishes a fundamental right to the equal benefit of laws protecting personal security. Laws protecting personal security must be applied even-handedly. Any discriminatory application of such laws isis presumptively invalid under the Equal Protection Clause. This Article next shows that gay men and lesbians are among the most common victims of hate crime, thatthat hate crimes against gays and lesbianslesbians are significant, persistent and widespread, and that gays and lesbians have a substantial stake in the manner in which the hate crime phenomenon is addressed. However, the interest of homosexuals in hate crime legislation is far more compelling than that. Because of societal antipathy toward gay men and lesbians, legislatures frequently exclude lesbians and gay men from the protection of hate crime statutes. In such cases, homosexuals are denied the equal benefit of laws protecting personal security, a right required by the Equal Protection Clause. 7 7 Among the numerous articles and essays on the subject and on thethe degree of controversy involved, some of the most helpful are included inin Symposium, Penalty Enhancement forfor Hate Crimes, 2 CRIM. JuST.JUST. ETHicsETHICS 3 (1992) [hereinafter Symposium, Penalty Enhancement]. 'R.A.V.8 R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992); Wisconsin v.v. Mitchell, 113 S. Ct. 2194 (1993). 9 In In R.A. V,v., the Court determined that thethe St. Paul, Minnesota, ordinance at issue was facially invalid under the First Amendment guarantee of free speech. facially0 invalid under the First Amendment guarantee of free speech. 112 S. Ct. at 2547. lOIn1n Mitchell, the Court upheldupheld aa Wisconsin statutestatute against a challenge primarily grounded on First Amendment freefree speechspeech concerns. 113 S. Ct.Ct. at 2202.2202. Of course,course, therethere is ample ground forfor distinction between R.A. VV. and Mitchell,Mitchell, as discusseddiscussed at greatergreater length, infra. "The11 The most cogent discussion toto date was presentedpresented as a symposium inin Law & Sexuality,Sexuality, butbut this material concernedconcerned chiefly hate speech,speech, ratherrather thanthan hate crimes involvinginvolving physical violenceviolence and statutes designed toto deal with them.them. See Symposium, LegalLegal Restric-Restric­ tionstions
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