On May 14th, Joe Solomonese, President of the Human Rights Campaign, paid a visit to Tucker Carlson’s MSNBC show to talk about HR 1592, the Local Law Enforcement Hate Crimes Prevention Act of 2007. Here is the transcript of the show. In it, Carlson makes the conservative case against hate crimes laws generally. Solomonese (and the bill) would have been better served had he revived a strategy reminiscent of Craig v. Boren, the Supreme Court decision that held that heightened, or intermediate scrutiny, must be applied to judicial review if the challenged law classifies in terms of sex.
Carlson embraced equality language: “But you are saying… that a crime against you is worse than a crime against me. And I‘m telling you that in the eyes of God and the federal government, we are the same. We ought to be equal and you are trying to change that. And that is morally wrong.” He continually argued that under this hate crimes bill, there would be greater punishments for crimes against gays than there are against straights, for instance, or for crimes against blacks than there are against whites. Carlson said that with this hate crimes bill, there would be special treatment for the LBGT community, or for racial minorities: “…Suggesting that you are more important than I simply because of who you sleep with or your sexuality or your color or your religion. And isn‘t that exactly what we want to get away from?”
Carlson made a number of factual errors, and Solomonese refuted many of them. The bill, HR 1592, does not talk about penalties. The bill provides federal resources to local law enforcement as they deal with hate crimes. Hate crimes, it needs to be reiterated (though perhaps not here), are not “it is illegal to hate X subsection of people.” Hate crimes, as §280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 defines the term, are crimes that “manifest prejudice based on race, religion, sexual orientation, or ethnicity.” While it is no doubt true (as Solomonese pointed out on the program) that hate crimes are overwhelmingly based on racism against minorities and based on homophobia and bigotry against the LBGT community, our hate crimes legal regime does protect heterosexual white males from hate crimes. It’s just that hate crimes against heterosexuals, or against whites, are not the central case. I do not live in fear of a cross burning on my lawn because I am straight. But if that were to happen, and if it manifested prejudice based on my heterosexual orientation, this bill would offer my local police resources as well.
But Solomonese never explicitly made the argument that heterosexual white males suffering from a bit of status nostalgia like Tucker Carlson are treated equally under the hate crimes bill. And that is where the Craig v. Boren strategy makes perfect sense as we make the political sale for increased hate crime protections.
Briefly: I take the concept of status nostalgia from Jack Balkin’s essay The Constitution of Status. A useful excerpt:
The most conflicted moments in American history may be the times when old social meanings about status are dissolving and new ones are taking their place. These are moments of heightened cultural struggle or Kulturkampf. To be sure, they are not necessarily Kulturkampfs in Bismarck’s original sense. These cultural struggles are the effect of social forces that have already begun to change. They feature not only the new assertions of groups rising in status, but the rearguard actions of an older order that is starting to pass away. Higher status groups employ whatever muscle they can offer–whether cultural, legal, or physical–to replenish their diminishing status capital and to put things back the way they were. But often, perhaps usually, it is already too late. The system of social meanings has changed, and all of us are carried along by its powerful tides. Faced with dissensus, open conflict, and even violence, people often harken back to the “good old days” when people were moral, social expectations were preserved, social deviance was invisible, overt enforcement of status norms was unnecessary, and everybody knew their place. I call this phenomenon status nostalgia.
Since Carlson made so many factual errors as to the nature of hate crimes law and this bill in particular, it seems safe to say that he was suffering from a bit of status nostalgia, truly arguing that equality protections extended to sexual orientation would diminish his superior social status as a heterosexual.
This is why Craig v. Boren‘s legal strategy is worth revisiting. In the case, advocates working to expand equal protection to encompass sex discrimination sought out laws that discriminated against men, not women. In Craig, this was an Oklahoma law that prohibited men under the age of 21 from buying “nonintoxicating 3.2% beer,” while women were permitted to buy this beverage after the age of 18. Instead of challenging head on laws that classified against women, first advocates won intermediate scrutiny by challenging a law on equal protection grounds that discriminated against men – a more legally (and politically) palatable challenge.
The analogy here isn’t perfect. Here Congress is drafting new law, not seeking to overturn or reinterpret laws on the books. But in making the sale, explaining that this is not a law of “special treatment” but one of equality, one has to address directly the status nostalgic arguments of men like Carlson. Solomonese should have responded that hate crimes law protects him equally, and that Human Rights Campaign opposes hate crimes against heterosexual white males just as much as it opposes hate crimes against the LBGT community. This is a point on which the broad center of American voters will agree. At that point, Carlson would have had to either 1 argue that hate crimes are not real, or 2 argue that local law enforcement does not need extra resources to fight hate crimes. Both of those arguments are losing ones. And while I know that liberty is the new equality, equality still maintains symbolic and rhetorical, as well as political and legal, weight. I think it will win the day here.