Three months ago, a young mob assaulted a gay couple in Philadelphia and left them in the street on a slick of blood. In the days that followed, prosecutors explained that they could not classify the incident as a hate crime under Pennsylvania law, which does not consider sexual orientation a protected class. The entire nation seethed. In the days that followed, Pennsylvania lawmakers threw themselves behind a (stalled) bill that would have added sexual orientation and gender identity to the state hate crime statute. Many of us cheered them on, with over 90,000 people signing a petition in support of the law.
We must find more effective ways to contend with bigotry. In the next few days, the suspects in this case will undergo a preliminary hearing, and they will never stand trial for a hate crime. But if we are trying to prevent future violence, this shouldn't even matter. What will actually happen if Pennsylvania someday recognizes hate crimes against sexual minorities?
First, before the law even goes into effect, we will declare a moral victory. In speeches, we will trumpet progress and cite the arc of the moral universe.
Next, we will forget about this law until someone else in Pennsylvania commits a hate crime. The assailant will serve time for murder, or vandalism, or whatever the crime may be, and then we will extend his sentence under the new legislation. More time in prison could purge him of prejudice, or it could subject him to rape and even more resentment toward minorities.
Before long, we will hear about another hate crime. And another.
There exists no definitive proof, after all, that statewide statutes discourage these horrible acts. "To the contrary," writes NYU Law professor James B. Jacobs in a New York Times editorial, "jails and prisons are breeding ground[s] for hate groups."
Nonetheless, we will feel safer because hate crime offenders will go to jail for longer. Even so, other worrisome groups will never see a jail cell: the parents, teachers, friends, politicians, pundits and religious leaders who fomented this prejudice all along. Hate crime laws cannot punish the bias behind violence, nor should they, the First Amendment warns.
But hate crime laws do divert attention from this bias. "The hate crime discussion is actually a distraction from the larger question of how we move beyond this," explains Michael Bronski, a Harvard professor of women's and gender studies, in a phone interview. We as a society discuss punishment, but rarely what it actually means to attack a minority group, or how to prevent it—or how many of us, even with the best intentions, contribute indirectly to this hostility.
These are much harder conversations. Only conversations, though, can prevent another tragedy.
They've worked before. Consider the heartrending case of Tyler Clementi, the Rutgers student who took his own life in 2010. Afterward, many gay advocacy groups called for hate crime charges against Dharun Ravi and Molly Wei, who had spied on Clementi's encounter with another man. Though Ravi and Wei were never convicted of hate crimes, the possibility unleashed a frenzy of vigilantism; some commentators demanded life sentences, while others posted the students' home addresses online. Did any good come from vengeance? Would more time in jail have prevented teenage suicides?
Of course not. Our most productive conversations originated outside the legal system. The It Gets Better Project brought YouTube mentors to thousands of LGBTQ youth; countless celebrities and nonprofits decried the bullying in our schools; and after much introspection, Clementi's mother left her evangelical church, which considered homosexuality a sin. More effective than any hate crime law, sadly, was the tragedy that invoked it -- and the discussion that followed. Today, we have just as many opportunities for reflection. Films, books, and grassroots organizations abound for this purpose.
And then there are laws, unlike those that punish hate crimes, with material benefits for LGBTQ people. Employment discrimination laws are one example. (Incidentally, Pennsylvania counts among many states that need stronger protections.) Other helpful laws include the ones we already have to prohibit murder, manslaughter, vandalism, arson, and a host of other atrocities waged by hate crime offenders. These laws work because they do not purport to do what they cannot. "Our legal system does not write laws to shape attitudes," explains Bronski in a column for The Nation. "It writes them to justly and fairly punish explicit behaviors."
In other words, hate crime laws punish discriminatory violence, but they cannot begin the important work of preventing it. Only we can, by speaking for the multitude that suffers every day in America from bigotry. Many of us have already begun this advocacy in our communities. (The recent Ferguson protests are a promising example.)
All of this is not to say that Pennsylvania lawmakers should abandon their crusade. If hate crimes have entrenched themselves in our laws, then excluding LGBTQ people is not the answer. But neither is including us. Passing legislation is hard work, but no work is as arduous as honesty: in our classrooms, around our breakfast tables, at churches and in town hall meetings -- and perhaps most fearsome of all, face-to-face with the ones who wish us harm.