Hate Crimes, Plus a Question for US Senate Candidate Kamala Harris

Dale, here’s the problem with the first three paragraphs of your comment. You’re changing the subject—which actually is something pretty specific: what constitutes a hate crime under California’s hate-crime statute.

Mike made a specific, angry allegation against Kamala Harris (who’s a Senate candidate!). He said she failed to include within her office’s statistics on hate crimes within a certain time period the shooting spree by a radical-Islam couple who targeted the work colleagues of one member of the couple. He quoted the statute and said that the San Bernadino shooting spree sure seems to him to qualify as a hate crime under that statute, since, after all, the shooters were radical-Islamists and were trying to make a political statement and targeted people who were not Muslims. But he was clearly wrong, and that’s not a matter of opinion; it’s a matter of law.

I was not the one who brought up the language in the statute; he did, and with deep umbrage bordering on rage claimed that Harris was opting to exclude a crime that qualifies under the statute as a hate crime. She did not. She interpreted the statute as meaning what the legislature meant by its words, and what courts interpret hate-crime statutes to mean, based upon the legislative purpose of these statutes.

These statutes are intended to create a separate category of crime that in essence borrows from the Supreme Court’s longstanding Equal Protection Clause jurisprudence, which divides into three types court analyses (levels of court “scrutiny”) of laws or government policies or actions for purposes of determining what constitutes an unconstitutional denial of equal protection by the government. The most intense level of court scrutiny—a test that the Court calls “strict scrutiny”—applies only to certain categories of selection: race, ethnicity, religion. A mid-level scrutiny applies to gender, and a couple of other categories. The lowest level of court scrutiny, called “rational basis” scrutiny, applies to every other type of category, and provides virtually no actual protection because the test is whether the government can provide a “rational basis” for the disparate treatment of respective “classes” of people or of an individual. (The courts do find this, but nowhere near at the rate of, say, the occurrence of a blue moon.)

But for “strict scrutiny” to apply, there is a SECOND requirement as well: It has to be discrimination against a race, ethnicity of religion that historically has suffered discrimination of an “invidious” nature—a class of people who’ve historically suffered great of significant harm by laws or government policies.

Okay, to be precisely accurate, that was Supreme Court jurisprudence dating back to, I believe, the 1940s (maybe earlier) but in a series of Supreme Court cases beginning in about 2000, the 5-4 Republican majority has, without saying so outright, exempted race—but only race—from the requirement of “invidiousness”. In a recent Court opinion called Fisher v. University of Texas, for example, they applied the “strict scrutiny” test in favor or a white high school senior from a wealthy Houston suburb in her challenge to UT’s affirmative action policy. In other words, the Supreme Court now effectively discriminates on the basis of race in determining when the “strict scrutiny” test applies in Equal Protection cases.

But I digress. The purpose of hate-crime statutes is to heighten the criminal penalty for crimes committed against members of sociological classes that historically have been discriminated against—treated hostilely by—not merely by government but by the private sector and in person-to-person contact. In employment, housing, bank loans, public accommodations (restaurants, hotels), and other things. That also is true of antidiscrimination statutes: the Civil Rights Act, the Voting Rights Act, the Americans With Disabilities Act, and state statutes that address these issues.

You acknowledge that Mike’s claim that Harris improperly failed under California’s hate-crimes statute to call a particular instance a hate crime. Yet you criticize me for pointing out that Harris did not such thing, because the statute that Mike says she failed to act accordingly under actually provides nothing of the sort.

And, btw, neither I nor anyone else, to my knowledge, considers Scotch Irish anything but an ethnic group. Which it is, right?

You’e kidding. Aren’t you? You don’t understand that the hate-crime part applies to his decision to target a, um, GAY bar, and that GAYS are among the groups whose protection is the very purpose of hate-crime statutes?

And that the terrorism part applies to his announced (but probably pretextual) motive concerning his country’s continued military presence in Afghanistan? (His parents are Afghan immigrants and active in Afghan-immigrant organizations.)

As for the clarity of the California hates-crimes statute, it’s awfully clear, Mike, whom it is intended to protect and what the motive of the perpetrator must be. The statute defines what it pertains to, in clear language using ordinary meanings of words. (It does not contain the term “hate crime,” btw.) But there are other laws, such as the Tax Code, that I guess are leading to tyranny, not because of the tax rate but because most people don’t understand it. Donald Trump and his accountants being exceptions. And, no, there is no requirement that words have exactly the breadth that most people would think the word used in a lay context would have—which is why statutes themselves usually define the key words in them.

In any event, Harris didn’t help write or vote for the hate-crimes statute, and as AG she has no authority to expand that statute’s, or any other statute’s, breadth and breach. (Talk about tyranny!)

I’m guessing that most of the public understands quite well that the hate-crime aspect of Mateen’s act pertains to the choice of targets. His actual motive appears to have been to prove to his father that he himself was not gay, although he apparently was. The Afghan-retaliation thing appears, as I said, pretextual, but since he made that claim it does qualify as terrorism.

Oh, and Dale, no, it was not me who said Scotch Irish people are particularly prone to acts of violence and cruelty. I said that acts of cruelty toward dogs and cats seem much more prevalent in the South than in most other parts of the country. You said that that was a charge against the Scotch-Irish as an ethnic group.

But actually it was a charge against a part of Southern culture. My Scotch Irish friends in the Chicago area have dogs, love them dearly, and wouldn’t be caught dead being cruel to their own dogs or anyone else’s dogs or cats, or to strays.

Mike, the critical mistake you make is in not understanding (or not accepting) that legislatures—state ones and Congress—are entitled to enact statutes that address only a very specific, narrow problem, and that that’s what state legislatures and Congress did in enacting their hate-crime statutes. The problem these statutes are intended to address is crimes against members of certain groups against whom historically crimes are regularly committed for the reason that the victims are members of the group. These are groups against whom there has historically been broad animus and discrimination, and whom culturally certain elements in society feel free to commit cries motivated by hatred toward that group.

Gays have routinely been physically assaulted and even killed because they are gay. Much more so, African Americans, and also have been victims of vandalism and graffiti on their property (including on church grounds) for that reason. Jews have been victims of vandalism and graffiti (including on synagogues) and occasionally have been victims of shootings (at a Jewish Community Center near, I think, Kansas City a year or two ago, for example). This simply is not the case with co-workers; that is, there is no historical, cultural broad-based animus toward co-workers. Or toward federal employees, as occurred in the Oklahoma City federal building bombing.

So, yes, while it is a hate crime to target members of a specific group because of the victim’s membership in that group, it is not a hate crime to target people in order to make a political statement or create a climate of fear among the general public, even if the political statement is in support of the perpetrators’ religious group. It’s still a politically motivated act, not one motivated by hatred toward one specific group.

When you say that the California hate-crimes statute isn’t sufficiently clear what you really mean is that it doesn’t say what you think it should say; it’s not a catch-all. It’s narrowly targeted. It doesn’t include things you think something nicknamed “a hate-crimes statute” should include. But it’s wording and its purpose is quite clear.

Courts, including the Supreme Court, do strike down statutes as unconstitutionally vague. I’ll just say that this statute and ones like it are in no danger of being stricken down.