A Feminist Liberal Approach to Hate Crime LegislationAmy R. BaehrIn a perfect world, because your child is gay, you don’t worry about their safety. You just worry about them being happy.—Judy Shepard (mother of Matthew Shepard)In recent years, progressives have pushed hard for the passage of hatecrime laws both in the states and at the federal level.1Such laws increasepenalties for crimes motivated by particular kinds of bias.2Though hate crimelaws differ from state to state and could, in principle, name bias motivationagainst any characteristic as deserving of increased penalties, extant lawshave named some or all of the following: bias against a victim’s race, nation-ality, religion, gender, disability status, and sexual orientation. Thus progres-sives have seen the passage of hate crime laws as an important step towardmore equal social status for traditionally disadvantaged groups. The lawshave posed an interesting problem, however, for traditional liberals. Liberalstend to endorse at least the core of the Millian harm principle, according towhich citizens should not be punished for what they think, but only for actswhich harm others.3Of course liberals will differ on what this principle meansprecisely and how it is to be justified. But hate crime laws seem to violate anyobvious reading of it. That is, hate crime laws seem to require extra punish-ment for criminals who think a particular way about their victims.4If this isindeed what these laws do, then to endorse them is to support using the lawto punish thoughts. This would open up the possibility of criminalizing what-ever ways of thinking the majority happens to reject. Thus, while the lawshave enjoyed endorsement by politicians both right and left,5liberal scholar-ship on the issue has been mixed.6And even those liberals who endorse hatecrime laws have done so only tepidly.7For feminist liberals the trouble is even more complex.8Feminists endorsethe ends toward which the laws are thought to be a means. And they endorsethe message that hate crime laws communicate to the public, namely, that thevictimization of already disadvantaged citizens is particularly morally repre-hensible. Yet feminist liberals will, at least as a political matter, also endorsesomething like the Millian harm principle and thus would seem to have toreject hate crime laws.9This tension in feminist liberalism between commit-ments that recommend for and commitments that recommend against hatecrime laws suggests strongly that feminism and liberalism are incompatible.The tension might seem to show that there is no coherent liberal feminism orfeminist liberalism. Indeed, much has been written about what many see asJOURNAL of SOCIAL PHILOSOPHY, Vol. 34 No. 1, Spring 2003, 134–152.© 2003 Blackwell Publishing, Inc.a necessary and unresolvable tension between feminism and liberalism.10Inwhat follows, I contribute to the argument for the compatibility of feminismand liberalism. Specifically, I argue that although liberal worries about crim-inalizing thoughts are important, hate crime laws do not necessarily amountto such criminalization. And thus it is possible for a feminist liberal to endorsethem.In section I, address two nonliberal feminist approaches to hate crime leg-islation, one critical (the all-things-considered approach) and one supportive(the feminist perfectionist approach), and show why a feminist liberal maynot endorse either of these approaches. In section II, I evaluate, ultimately toreject, three not necessarily feminist attempts to justify hate crime laws. Theseare the greater-harm argument, the greater-intent argument, and the greater-vulnerability argument. In section III, I propose my own justification for hatecrime laws, which is both consistent with some of the most important con-sidered convictions of feminists and satisfactory to liberals.I. Two Nonliberal Feminist Approaches to Hate Crime LegislationA. A Feminist ‘All Things Considered’ Rejection of Hate Crime LegislationIn a recent article in the Nation, Katha Pollitt (1999) argues against hatecrime laws. According to Pollitt, the most important reason for rejecting hatecrime laws is not that they penalize people for what they think, nor is it thatthey privilege one type of victim over another (though she does worry aboutthis). For Pollitt, what’s most troubling about hate crime laws is that they arean expression of our culture’s current punitive zeal. Pollitt observes that“America is in a punitive mood these days.” “Where are the affirmative pro-grams that...foster understanding?” she asks rhetorically. Pollitt is surelyright that to ‘criminalize hate’ is quite likely more expensive, less effective,and more morally troubling than ‘fostering understanding.’But we might put a hypothetical question to Pollitt: What if our societywere not in a punitive mood? Could penalty enhancements for hate crimesthen be acceptable? Or, putting it another way, all things being equal, couldit ever be acceptable for the state to require additional punishment for crimesmotivated by hatred toward a victim’s group membership? Pollitt seems torecognize that one might ask this question. But she does not pursue it in herarticle. For liberals, in contrast, this is a key question, because it asks whetherhate crime laws satisfy what liberals take to be a minimal condition for legit-imacy. For our purposes at this point that minimal condition is that onlyharms but not thoughts be the basis for punishment.Pollitt is primarily concerned not with whether hate crime laws satisfysome minimal condition for legitimacy such as respect for liberty of con-science, but with a very different set of questions, such as: Will hate crimelaws distract us from the real work we must do to achieve racial, ethnic, orother reconciliation? Will they result in even longer sentences, or worse, forthe minority men who are disproportionately represented among those undercriminal justice supervision? Will they result in more prosecutorial discre-A Feminist Liberal Approach to Hate Crime 135tion?11Will the laws exacerbate other disadvantages suffered by minority cit-izens?12These are important, even crucial questions. They are questions thatask how hate crime legislation relates to the moral-political outcomes manyprogressives and liberals endorse. Feminists especially are concerned withthese questions, since feminists have come to see that concern for women’swell-being requires that we think critically