Crimes of hate hard to prove in court

By Tibor Machan: Freedom New Mexico columnist


The kind of discrimination that’s objectionable is when people use irrelevant attributes of others to classify them — like their race when hiring them for jobs where race is irrelevant. The race of a CPA has no bearing on the work of a CPA, so taking it into account in the hiring or promotion process is morally wrong, a kind of professional malpractice.

In a free country, such discrimination may not be forbidden however offensive it is. No more than one may ban dirty talk or filthy movies or indeed any conduct that doesn’t violate anyone’s basic rights.

In the U.S., however, some features of the civil rights law have made discrimination based on race, sex, national origin, etc., illegal for most people though by no means all. A clear case in point is that customers may indulge their racial and similar irrational prejudices with complete impunity.

If racists go shopping at the local mall, there is no law against their refusing to patronize stores where Jews, blacks, women or people with obvious ethnic backgrounds happen to work.

Throughout the market place anti-discrimination laws actually discriminate mainly against sellers, vendors, proprietors, employers, and so forth.

If a prospective employee stays away from places of work for prejudicial reasons, there is no law against this. If racists stay away from a restaurant because it is owned or employs people against whom they harbor racial prejudice, this is not legally forbidden. You will not be able to turn in such potential customers to the EPA and get any action taken against them.

It is probably quite impossible to force such customers to stop acting on their irrational prejudice but it is also quite clear this amounts to the unequal application of the spirit and even letter of the civil rights laws that were enacted to prohibit prejudicial conduct throughout the American economy.

Perhaps this contains an important lesson. Conduct that does not violate others’ rights may be very ill suited for governmental action.

When people do violate the rights of others, this is usually evident by way of some actions that can be publicly observed — assault, battery, kidnapping, rape, murder, and so forth. But conduct that doesn’t involve such violation is not available for control.

This is akin to the problem with hate crimes — how can it be verified that someone commits a violent crime out of hate?