There's a Better Way to Outlaw Cross-Burning


September 02, 1993|By BOB PURVIS

The Maryland Court of Appeals decision striking down the state's cross-burning statute, State v. Sheldon, was the right decision -- both under the law and as a matter of social policy.

The basic flaw in the statute was that it was dishonest. It pretended to be concerned about fire hazards caused by burning crosses and other religious symbols. In truth, it was directed at a very different problem: racially-motivated cross burnings which terrorize black Americans in their own homes. But the law in question did not ban the act of burning a cross; it only applied where the perpetrator failed to obtain the permission of the property owner and notify the local fire department in advance.

Given the structure of this law, the Court of Appeals had no choice but to strike it down. Its declared purpose -- protection of the public from fire hazards -- could not be taken seriously. In the end the state shifted ground, arguing that the law served a ''compelling interest in protecting the community against bias-motivated threats to public safety and order.'' The Court of Appeals acknowledged the compelling nature of this interest but was left with a law that did not, in any way, indicate concern for bias-motivated violence.

In 1992, the U.S. Supreme Court held that cross burning is a form of symbolic expression. Under certain circumstances it is protected as free speech under the First Amendment. The Maryland cross-burning statute did nothing to protect the public from fire hazards and it was a poor match for the true interest of addressing bias-motivated violence. It therefore failed the basic tests which are applied to laws which restrict freedom of speech. The opinion of the Court of Appeals in the Sheldon case has its own problems, but the decision is well within the mainstream of First Amendment principles.

If we are truly concerned about questions of equality and social justice we should not regret the loss of this statute. Although the law was well-intentioned, the subterfuge in which it engaged is far more often used to resist the legal and moral commands for equality. In this respect it is not unlike the tactics employed by southern jurisdictions to circumvent the Voting Rights Act, or the rationalizations presented for sophisticated red-lining techniques in mortgage lending. If we validate subterfuge when it serves our interests then we invalidate our moral standing to attack subterfuge when it is used against us.

Although this particular law was defective, there are other approaches we can take to punish terroristic cross burning without sacrificing established free-speech principles. The Supreme Court has never held that cross burning is beyond the reach of the criminal law. On the contrary, it has been punished numerous times under federal civil-rights laws. In fact, the Supreme Court decision which the Court of Appeals followed assumes that cross burning can be criminalized under a properly drafted statute.

The approach we favor is a state civil-rights law modeled on federal statutes. Such a law was first enacted in 1979 by the State of Massachusetts, followed several years later by California. These laws provide criminal penalties and civil remedies where force, or the threat of force, is used to interfere with a person's civil rights. Police and prosecutors who have experience enforcing these laws are enthusiastic about them, as are the victims who have used the civil remedies to obtain compensation.

This law has many virtues and few, if any, drawbacks. First, it has survived constitutional challenge. Second, it protects every person's civil rights. Third, a civil-rights law would actually penalize more cases of terroristic cross burning than did the old law. At the same time, it would reach a wide range of other violent acts which are intended to deny citizens their right to participate fully in our civic and social life.

Although this new civil-rights law would overlap somewhat with Maryland's ethnic-intimidation statute, for the most part the two laws would complement each other. Finally, unlike the old cross-burning law, a civil-rights statute would represent an honest and direct commitment on the part of the State of Maryland to confront racial and ethnic violence -- perhaps the most serious threat to our social order.

The kind of civil-rights law described here has been introduced in past sessions of the Maryland legislature, but largely ignored. It will undoubtedly be introduced again this year. Let us hope that this time the bill receives full hearings in the Senate and House of Delegates.

Some commentators have criticized bias-crime laws and similar measures as tending to pit one group against another -- in the words of one writer, as encouraging the ''Balkanization'' of American society. In fact, the opposite is true. Given the chance, many members of minority groups will testify that these laws make them feel more a part of the larger society precisely because they recognize and provide remedies for some of the most serious barriers they face in their daily struggle to realize the American dream. The true lesson we should take from the Balkans is that the more we try to deny the severity of racial and ethnic conflict now, the higher the price we all will pay later.

Bob Purvis is legal director of the Center for the Applied Study of Prejudice and Ethnoviolence, based at the University of Maryland at Baltimore.

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