Hate Crimes, Homosexuals, and the Constitution
53 Pages Posted: 29 Jan 2011
Date Written: 1994
In spite of the recent discussions of legal issues affecting homosexuals, and in spite of the current debate concerning the constitutionality of hate crime statutes, there has as yet been little discussion of the interrelationship between lesbians and gay men, the phenomenon of hate crime, and the constitutionality of hate crime statutes. An important point can be made about the extent to which lesbians and gay men may claim the protection of hate crime statutes under the Constitution. 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 laws protecting personal security. Laws protecting personal security must be applied even-handedly. 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 laws 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
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