I think there's a lot of confusion here about how hate crime laws function. Here is an excerpt from the oral arguments of the (unanimously decided) case of
Wisconsin v. Mitchell, 508 U.S. 476 (1993) upholding a Wisconsin hate crime law. Hopefully this will provide clarification:
Mr. Doyle: The jury is given a special verdict under the Wisconsin penalty enhancement statute and it is, they return two verdicts, guilt or innocence on the charge and as well as the question on whether or not the defendant intentionally selected the victim because of the victim's race, or whatever the particular status may be in the case.
And it is that point, I believe, that is extremely important in this case.
What the Wisconsin statute does is look at the intentional selection of the victim.
There is a lot of talk about biased thought, hate thought, and so on.
The Wisconsin statute does not go after biased thought or hate thought.
We don't know whether Mr. Mitchell had racial bias or not.
It's likely he did given the facts of the case, but we don't know.
And to a large measure in Wisconsin we don't care.
For example, Mr. Mitchell might have selected that victim because of his race simply to show off to the group of young men that was around him about how tough he was or some other reason.
We don't know.
Mr. Mitchell may have the benignest thoughts about race relations as are possible, and yet he would be guilty under the Wisconsin law because he intentionally selected the victim because of the victim's race.
Justice Scalia: Is there any limit on the reasons for selection that the state can specify for higher punishment?
I mean, could it say if you select a victim on the basis of whether or not he believes in the hole in the ozone layer?
Could you do that?
Or whether he believes that the earth revolves around the sun rather than vice-versa?
Mr. Doyle: I believe that in view of the state if the particular category serves a legitimate state interest and meets equal protection tests and meets vagueness... some of the examples you have given, Justice Scalia, I think would be difficult obviously to put into a statute that would meet the vagueness test.
But if it meets those, that--
Justice Scalia: It has to serve a legitimate state interest?
Mr. Doyle: --I believe that--
Justice Scalia: So one has to judge whether being against flat earth people is less important than being against people who don't like particular religions, for example?
Mr. Doyle: --No, that would not be the legitimate state interest.
The legitimate state interest is if, for example, you have had a problem in your state, there is a large debate going on about flat or round earth and there have been a great number of fights that have gone on in your state for a period of time and the state legislature decides that the violence attached to this debate is one that needs to be addressed and that people who are acting out of, who are selecting victims because of that reason present a particular danger to the community, then I think the state could act.
Justice Scalia: Okay.
So it isn't the goodness or badness of the idea that you're talking about, it's whether attacks on the basis of that idea are a particular problem?
Mr. Doyle: That's right, whether they present, in a traditional criminal context that they present a significant law enforcement problem to the State of Wisconsin.
