Beyond Bullying: Race, Poverty and LGBT Rights

One of the most pernicious but least discussed stereotypes of LGBT persons portrays them as a highly privileged population. According to the legend, the average LGBT person is white, wealthy and highly educated.

Opponents of LGBT rights frequently point to these so-called privileges in order to advocate against progress on questions of sexual orientation and gender identity. For example, during the campaign to pass an amendment to the Colorado constitution that banned the implementation of laws protecting gays and lesbians from discrimination, the group Coloradans for Family Values circulated the film "Gay Rights/Special Rights." The video depicts gays and lesbians as white, upper-class and sexually debauched. The narrator questions the need for LGBT rights measures on the grounds that gays and lesbians have not suffered discrimination to the same extent as Blacks and Latinos.

Supreme Court Justice Antonin Scalia echoed this sentiment in his dissenting opinion in the case Romer v. Evans. In Romer, the Supreme Court invalidated the Colorado constitutional amendment because it denied gays and lesbians of Equal Protection. In protest, Justice Scalia argued that "those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities. . .have high disposable income. . .[and] possess political power much greater than their numbers, both locally and statewide." Accordingly, extending them civil rights protection would amount to "special rights."

The gay-as-wealthy stereotype is patently false. The notion of LGBT wealth often rests on statistical data that uses very skewed samples of "out" persons who make contributions to political organizations and who subscribe to LGBT-related periodicals. Using the stereotype as a way of comparing Blacks and LGBT persons is also bankrupt. Social groups can have different experiences, but they can each suffer from unjustifiable mistreatment. Furthermore, many Blacks are also LGBT individuals. Thus, the comparative approach falsely assumes a separability of the two groups.

Two Recent Reminders of the Intersection of Race, Poverty and LGBT Status

Vicious Attack on Damian Furtch



The intersection of race, poverty and LGBT status has very tangible effects. Several studies have indicated that LGBT persons of color are more vulnerable to hate crimes than whites. This is likely due to them lacking adequate safe spaces to express their identities openly. Also, poor LGBT people cannot afford to move to low-crime neighborhoods, thus, exacerbating their susceptibility to violence.

Despite their greater vulnerability to antigay violence, the national media typically does not make connections between race and homophobic violence. For example, Damian Furtch, a 26-year-old black gay male was recently severely beaten in New York City. His attackers called him a "faggot." Police have labeled the incident a hate crime. As of today, the only detailed news about this crime appears on another blog. Although the media has given antigay "bullying" massive amounts of attention in recent months, the type of street violence that disproportionately impacts poor LGBT persons of color remains virtually unexamined and uncriticized in the general media.

New York State Budget Cuts Imperil Homeless LGBT Youth



Carl Siciliano, the Executive Director of the Ali Forney Center, has written an "open letter" to New York Governor Andrew Cuomo asking him not to slash state funding of emergency shelters for homeless youth in New York. The Ali Forney Center provides shelter to homeless LGBT youth in New York City. Most of these kids have been kicked out of their homes because they are LGBT. Most of them are also very poor and typically persons of color.

These youths are statistically quite vulnerable to suicide and abuse. While the media has devoted a lot of attention on the issue of suicides among LGBT individuals, it has focused attention primarily upon suicides resulting from bullying -- rather than examining the massive difficulties that poor LGBT youth face when their parents refuse to accept their identities.

Moving Forward

There are many reasons why poor LGBT persons of color are invisible in the media. The media rarely produces serious journalistic accounts of the personal effects of discrimination upon the most vulnerable persons in society. Also, homophobia within communities of color and racism within LGBT populations compounds the discrimination LGBT persons of color already face. Placing these issues on the forefront of social justice movements, however, is necessary for real progress to occur.

According to Pat Robertson, Christians Are Crazy and Bloodthirsty

President Obama recently signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Pat Robertson is very upset. He believes that the law is bad news for Christians:

The noose has tightened around the necks of Christians to keep them from speaking out on certain moral issues. And it all was embodied in something called the Hate crimes bill that President Obama said was a major victory for America. I’m not sure if America was the beneficiary. . . .We have voted into office a group of people who are opposed to many of the fundamental Christian beliefs of our nation. And they hold to radical ideology, and they are beginning put people sharing their points of view into high office. And not only that, they not only have control of both houses of Congress.

Assuming that people who believe Pat Robertson have the capacity to read, here is the actual language from the statute that addresses "hate crimes" committed on the basis of sexual orientation (and other categories):

Whoever . . . willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person. . . [shall be liable for criminal penalties stated in this legislation].

So, in order to believe Robertson, one must also believe that Christians, by definition, want to "willfully" cause "bodily injury" to people in the listed categories. Robertson's grotesque logic also requires the listener to ignore the fact that the law also protects Christians -- and everyone else -- from religion-based violence.

Earth to Robertson: Your blatant lies are a bigger threat to Christianity than this legislation.

Cutting Through the Rhetoric Regarding Hate Crimes Legislation

The House of Representatives recently passed H.R. 1913 -- "The Local Law Enforcement Hate Crimes Prevention Act of 2009." Now, this bill and a similar measure ("The Matthew Shepard Hate Crimes Prevention Act") are currently pending in the Senate. The proposed legislation has triggered partisan support and opposition. The House measure, for example, passed by a vote of 249-175. Only 18 Republicans supported it.

The American Thinker has published an essay that condemns the proposed measures. The article, written by John Griffing, makes many familiar arguments, including that the proposed law would violate freedom of expression. Griffing's article, however, contains many distortions that greatly undermine his analysis.

Freedom of Speech
Griffing argues that, if passed, the hate crimes measure would violate the First Amendment, and he likens the proposed law to the notorious Sedition Act of 1789, which made it a crime to "write, print, utter or publish" material criticizing the President, Congress or the United States. The proposed legislation, however, provides no support for Griffing's claim.

The measure that recently passed in the House, for example, would create federal criminal liability when a person "willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person" due to the "actual or perceived race, color, religion, or national origin of any person" or "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person." The proposed statute also contains language stating that its terms shall not "be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution."

As the Supreme Court held in the 1993 Wisconsin v. Mitchell decision, laws that prohibit acts of bias-motivated violence generally do not violate the First Amendment. The Court's unanimous opinion, authored by staunch conservative Chief Justice Rehnquist, concluded that Wisconsin's hate crimes statute did not impermissibly punish speech or thought because the measure reflected the state's finding that bias-motivated crimes "inflict greater individual and societal harm" than ordinary violent crimes. The Court also analogized the hate crimes statute to federal employment discrimination laws, which had already survived a First Amendment challenge.

The Court's second observation is worthy of elaboration. Consider the following hypothetical scenarios. One year, a company refuses to give any employee a pay raise due to financial constraints. Unless the decision violates an employee contractual provision, then it likely constitutes an unassailable business decision.

Suppose, instead, that the same company refuses to give any employee a pay raise because only white workers passed a performance test that the company used to determine who would qualify for the salary increase. Without additional information, most people would not believe that the second scenario constitutes a legitimate business decision shielded by the First Amendment. Instead, as conservatives have passionately argued with respect to Ricci v. DeStefano, the racially motivated employment decision might violate federal antidiscrimination laws. Racial motivation, however, is the only factor that separates the two hypothetical scenarios and that transforms an ordinary business decision into a violation of federal law. If conservatives truly believe laws that punish behavior motivated by discriminatory ideas or thoughts violate the Constitution, then they should withdraw their objections to Ricci and to affirmative action.

The government's interest in preventing the prohibited conduct seems even more compelling in the hate crimes context than in the employment situation. Stripped of biased motivation, the underlying decision in the employment setting is generally lawful. The removal of bias in the hate crimes scenario, however, does not render the underlying behavior legitimate. Indiscriminate acts of arson, gun violence, and fire bombings, for example, usually lack a legitimate purpose and are likely illegal.

This distinction also reveals the fundamental flaw in Griffing's effort to analogize hate crimes legislation to the Sedition Act of 1789. The Federalist Party passed the Sedition Act in order to punish Democratic-Republicans and political commentators who criticized the Adams administration in writings and speeches. Political speech is a core interest of the First Amendment.

The First Amendment, however, offers no protection for a person who tosses a bomb into a black church or a synagogue -- even if the perpetrator acts upon strongly held political beliefs. Similarly, the First Amendment would not shield an individual from prosecution if he or she, acting on political ideology, commandeers an airplane and crashes it into a national monument. Thus, if the proposed measure ultimately becomes law, the Fred Phelps congregation could still march across the country spreading the "good news" that "God hates fags." Church members, however, could not seek solace in the First Amendment if their own hatred of "fags" led them to inflict bodily injury upon GLBT people.

Special Protection
Finally, Gillings makes the factually inaccurate claim that the hate crimes measure would create "special" rights for "homosexuals." Gillings argues that: "The legislation contains provisions that will increase the penalties for acts committed against certain protected groups . . . and giv[e] special legal stature to homosexuals and those with sexually-related "disabilities" (Apparently, Gillings has misread the proposal as regulating violence motivated by the victims' "sexually-related disabilities" rather than "disability").

Gillings's argument fails in two important respects. First, Gilling describes remedies for particular societal harms as unfair "special" advantages. This is an inaccurate characterization of the law. The Constitution, for example, protects the "free exercise" of religion because the country emerged out of a particular history of religious intolerance in England -- not because the Framers wanted to give religious people "special" advantages.

Gilling's special rights argument also fails because the proposed measure is drafted neutrally and would apply to any person with a "sexual orientation," race, "gender," etc. The religious freedom analogy helps here as well. Religious freedom protects the atheist and the believer. Similarly, the neutrally drafted hate crimes legislation would protect whites and persons of color, men and women, GLBT people and heterosexuals, etc. In fact, the Mitchell decision discussed above applied the Wisconsin hate crimes statute to a black-on-white racial hate crime.

Conclusion
Even though I tend to support hate crimes measures, I am doubtful that they deter the prohibited offenses. But, as conservatives often remind us, the criminal law metes out punishment in addition to deterring offenses. I am primarily supportive of these laws because they allow the government to make an important statement about the nation's values, which I suspect many Americans believe should include disapproval of all forms of violence, including hate crimes.

In the abortion context, conservatives have argued -- and the Supreme Court has agreed -- that Roe v. Wade does not prohibit states or the federal government from passing laws that express a preference for "childbirth" over "abortion" (e.g., by denying funds for abortion-related services and requiring mandatory waiting-periods and the distribution of information intended to encourage women not to have abortions). Given this precedent, the proposed legislation does not strike me as being constitutionally impermissible or aberrational.