As part of a defense authorization, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (see here, starting on page 1471) was passed today. No big fan of nongermane legislation to be tossed in like that, but it's how things are done.
I'm wary of hate crime laws generally for three basic reasons: pragmatically I think the best path is an evenhanded enforcement of the law, especially since doing otherwise can lead (fairly or not) be deemed special favoritism and lead to social divisions. As in R.A.V v. St. Paul, it also can be deemed inequitable to target harm to certain groups alone though it was not applied to violent action (though the previous case involved cross burning). Finally, it is complicated in various cases to prove discriminatory motivation, at times perhaps resulting in trying a person's opinions.
Bottom line, the best path seems to be to prosecute attacks and so forth, attacks based on hate for whatever reason (not some list of categories) treated differently than the run of the mill crime. Yes, in the process motivation comes into play, but the law in question does not target any one group. The legislation just passed notes:
A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected.
IOW, the crime is not just against the person, nor are the effects. But, the same can be said about many crimes. Street crime in poor communities, for instance, makes the whole community a dangerous place for all. And, there are any number of bias crimes that harm groups, more than the limited number listed in this legislation. The counter is that the same can be said about discrimination laws, but we still have select categories getting special treatment such as those protecting groups by race, religion, gender, age and so forth. OTOH, perhaps civil rights laws are different than crimes, which can involve prison.
The law also notes that hate crime laws in regard to race (in an original intent sort of way, religion fits in here, since religious groups like Jews and Muslims were deemed a sort of race) raises Thirteenth Amendment concerns, since they are in effect a badge of slavery. It is unclear how much it rests on this though. The legislation tosses in a boilerplate interstate commerce hook, but there also seems (when a state does not prosecute or does so that it "left demonstratively unvindicated the Federal interest") some opening for further federal prosecution in other cases. It would be helpful if more discussions of this legislation would tell me what exactly that would mean in practice.
I think my concerns hold, but the badges of slavery issue does give me pause ... in that case, yes, certain times of crimes very well might be more of a constitutional moment. Less so for many types of hate crimes, including by gender and sexual orientation, though one can interpret the amendment broadly to apply to them too. The fact that some state doesn't enforce a bias crime involving sexual orientation and the offenders use a bat they bought in interstate commerce does not seem to do it. But, if -- and this is probably true -- some state or locality selectively fails to target certain types of violence because the community does not find it as important because of bigotry or the like, that's different. Failure to equitably enforce the law can very well be an illegitimate state action in this case.
Putting aside when purely federal matters are involved, such as you know crimes in federal territories or serious interstate crimes not ones related in that fashion akin to federal targeting state medicinal marijuana use, this is reason for a federal law. Some raise federalism concerns in cases like this, since such laws can be so open-ended that in practice the feds selectively single out certain basically state crimes because the public is rather arbitrarily concerned about the matter for one reason or the other. But, as with civil rights laws in the 1960s, certain crimes are ignored by the states in such a way that national action is appropriate.
The law has boilerplate, constitutionally implied anyway, that prosecution cannot "admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence" -- that is, you can do so, but it has to be germane and appropriate. It also provides federal support to state investigations: "technical, forensic, prosecutorial, or any other form of assistance in the criminal investigation or prosecution of any crime" and other funding to help end such bias crimes. Likewise, sexual orientation and gender identity crimes are added to a national database.
To summarize:
The new measure, attached to an essential military-spending bill, broadens the definition of federal hate crimes to include those committed because of a victim's gender or gender identity, or sexual orientation. It gives victims the same federal safeguards already afforded to people who are victims of violent crimes because of their race, color, religion or national origin.
The law allocates $5 million a year to the Justice Department to assist local communities in investigating hate crimes, and it would allow the agency to assist in investigations and prosecutions if local agencies requested help. It includes provisions for mandatory training of local law enforcement. This will help in so many ways, and give local organizers a chance to interact with the police in a positive way. Eighteen states (GA included) have no state Hate Crimes laws, so this provision to "step in" is critical for a proper investigation.
The funding aspects are much less open to criticism even on libertarian grounds. And, my concern about hate crime laws does not really answer depriving one particular group from their protections. In fact, my concerns are weakened when the laws are more diverse -- the more groups covered, the less selective. Likewise, it is an equal protection concern when sexual orientation or gender identity are not covered, since they are comparable to the groups already covered. Finally, as Rachel Maddow just noted, the message sent to the LGBT community is that they matter too.
Various aspects of the law don't touch to the core of my concerns. The funding components come to mind, though they might still raise special interest concerns. My concerns also can be countered with various arguments. This makes the ultimate debate a pragmatic one that is balanced by the positives especially with the first major federal law that respects the LGBT community.* Why should they not too be protected? And, principle or no, this sort of thing does not keep me up at nights.
So, bottom line, this is a good thing.
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* The message being sent underlines why this matters even when murder or some other very serious crime is involved in which it is likely the offenders will (or did receive) high penalties or even the death penalty in certain cases (not found in this law) anyway. We are dealing with people targeting others for who they are and for practicing what is their right to do. The government has a right to single this out for disfavor. There are ways to do this without use of the criminal law, of course.
Ideally, I still think that the best way to do this is to target all attacks for the very reason that violence and so forth deserves to be prosecuted. If all people attacked are helped in this way, is not equality promoted? But, we do have limited resources and thus target certain things and do so so symbolically as well by such legislation. So, again, I see the other side's point. It has bite.
[Update: Here's an essay on the matter. As to this hate crime law in particular, the claim that some really just are uncomfortable with protecting this class of people has bite. But some, like some at TalkLeft, are against all hate crime laws can't be so labeled. Some btw do oppose various types of civil discrimination policies as well, feeling the laws result in wrong-minded lawsuits. Sexual harassment law alone. Most also accept that certain things in this area are specifically wrong, such as voting discrimination as spelled out by various constitutional amendments.
I also do not quite buy the thought/motivation distinction. We can do various things legally even if we are motivated by hate (and how do we prove it? sometimes we go by what you were thinking or reading or whatever) -- I can deprive your family from going to a game because I hate you, if I could get the last ticket. Making certain things illegal just for hating, especially just for hating certain groups, is wrong. This is why discrimination laws are different -- you have some privilege or right, and a person is wrongfully depriving you of it for 'x' reason. Often, hate is not involved at all. If you don't fit in a certain category, assault and battery is still wrong.
So, the difference probably is that certain actions that are wrongful even if they are somewhat expressive. And, given concern for equality, religious freedom and so forth, certain actions should be more of a concern -- even illegal actions -- than others for various reasons. Especially given limited resources, societal biases that require special responses, etc. OTOH, citing "financial motive for murder" as a sort of "motivation" crime is dubious since one problem here is that the categories are especially sensitive, touching upon ideological thoughts that are not really akin to that. And, the law cannot target contempt for the flag ... we went down that route.