[The defense bill signed into law had various notable aspects, including involving non-funding of a certain fighter jet as noted by Rachel Maddow last night. Rep. Holt's amendment regarding videotaping certain interrogations also deserves some note. A lot going on here, especially with focus on health care, but this legislation in the midst of foreign conflict is of particular importance.]
My thoughts on the hate crimes amendment yesterday was probably a bit garbled while I dealt with proverbial angels and devils on my shoulders. One thing I should have emphasized was that it was not just concerned with sexual orientation and gender* identity. The very name references a racial hate crime (James Byrd Jr.) and it in part strengthens a current federal health crime bill targeting racially motivated violence. A defense of the constitutionality of the provision from the Obama Administration discusses the point.
The various categories in the bill are justified in different ways. As noted last time, a federal race based hate crime bill can target private action without reliance on interstate commerce or such other special interest (e.g., a crime taking place on federal land or against a federal employee). Likewise, "race" in this sense includes at least some religious (let's say Jews/Arabs but unclear if Wiccans would be covered) and national groups. See also, here. This is why -- unlike per the Civil Rights Cases (public accommodations) -- state action need not be involved.
It is a Thirteenth Amendment "badges of slavery" interest as noted in this case that was cited by the Obama defense in question:
Significantly, this practice of race-based private violence both continued beyond the demise of the institution of chattel slavery and was closely connected to the prevention of former slaves' exercise of their newly obtained civil and other rights (rights that slavery had previously denied them), thereby presenting "a spectacle of slavery unwilling to die." Jones, 392 U.S. at 445 (Douglas, J., concurring). Thus "violence against blacks reached staggering proportions in the immediate aftermath of the [Civil War]," Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877, at 119 (1988), and such violence was specifically directed at the exercise, by black Americans, of the rights and habits of free persons. See, e.g., id. at 120 ("The pervasiveness of violence reflected whites' determination to define in their own way the meaning of freedom and their determined resistance to blacks' efforts to establish their autonomy, whether in matters of family, church, labor, or personal demeanor."); Kennedy, supra, at 39 ("In an effort to reassert control, whites beat or killed African-Americans for such `infractions' as failing to step off sidewalks, objecting to beatings of their children, addressing whites without deference, and attempting to vote.").
This might even be used to defend state hate crime legislation (see, e.g., Wisconsin v. Mitchell [black on white crime], where btw Thomas actually asked a question) in part because ala exceptions to state immunity to lawsuits a later amendment can abridge a former in some fashion. As noted here, this argument was never applied to a non-racial law of this sort even though the author of that piece in his book on the Thirteenth Amendment supports such an application since the amendment protects freedom for all. Thus, for non-racial groups some sort of commercial federal "jurisdiction hook" is necessary to have a federal prosecution. And, as the piece argues, it underlines the importance of an employment discrimination law to provide further protection.
[I read the book in question and found it somewhat heavy-handed advocacy. But, the discussion linked to and the corresponding law review article are worthwhile.]
The link to the Wisconsin v. Mitchell argument is of limited value in some ways since I don't think the defense did that good of a job. Thomas' question, for instance, at the end was interesting but he didn't get much of an answer. The opinion itself does a good job spelling out that when action is involved, motivation can be judged in various cases under current law. That was a sentence enhancing law -- selecting a person for racial reasons (not necessarily out of hate -- important point perhaps) added to the punishment. This is federalizes certain crimes usually left to the states. So, there are differences. After all, my concerns about an unnecessary additional punishment (serious crimes already have serious punishments) does not apply if the feds need to step in to protect federal interests or crimes states do not punish enough already.
Anyway, don't know if this adds much, but hopefully it is of some help.
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* It's not totally germane, but to toss it in here, this discussion from a former Letterman writer on how there was a sexual intimidating environment when she was there is striking. The absence of female writers (though on Letterman a female producer is evident) provides a lesson that goes beyond the sexual titillation of the story.
Also, other than a short lived Joan Rivers late night show and an upcoming Wanda Sykes program, how about the absence of women hosts? I almost forgot the less watched E! show Chelsea Lately. Why not put one to replace Conan, for instance, instead of yet another lame guy? A Sarah Silverman type would answer the possibility that a mainly man demographic is sought here. Are female hosts only fit for daytime fare?