Good Intentions Mask A Failure Of Political Courage

I know that the Supreme Court has narrowly upheld certain kinds of hate crimes laws. I think those laws, and those decisions, are ultimately contrary to the First Amendment — which is to say I think the Supremes blew the call. Let’s take the Matthew Shepard Hate Crimes Prevention Act, for one. That’s in the news because Senator Patrick Leahy announced that he is re-introducing this bill into the Senate — as a rider on a defense spending bill.

Now, I’m all for including homosexuality within the category of “suspect classes” in anti-discrimination laws. But Senator Leahy’s legislative legerdemain is really sneaky and a perfect example of why people are cynical about Congress. More about this at the end.

The law creates new federal crimes, and providing penalty enhancements for pre-existing crimes, if the defendant’s choice of victim is proven to have been motivated by the victim’s sexual orientation. In other words, gay-bashing would become a Federal crime.

I don’t think any of my Readers are going to be so dim as to think that gay-bashing does anything but repel me. Like other acts intended to be included within the scope of “hate crimes,” gay-bashing is an awful cocktail of several of the very worst parts of human behavior. I shed no tears for the criminals who are punished for engaging in these acts. The story of Matthew Shepard is a tragic one and it’s hard even now, more than ten years after his murder, to read about it without being emotional.

But it’s exactly where one’s instincts are being affirmed that one should start using critical thinking. If it’s good to punish gay-bashers, why is that? Those two guys had gained the trust of Shepard, drove him to a remote area, beat him up and tortured him, and then left him strung up like a scarecrow for eighteen hours until he lapsed into a coma, from which he eventually died. Does it matter that he was gay? Does it matter that they went looking for a gay man to attack as opposed to a straight man? Is it any worse because they went looking for a gay victim? A hypothetical straight victim would have suffered just as much. His family and loved ones would have suffered just as much.

Which is why this act is already described with a constellation of crimes, like assault, robbery, torture, and murder. But there is no act that this bill criminalizes that is not already criminal. Extra punishment for these acts based on the identity of the victim does not serve any purpose of criminal punishment that I am aware of — it will not deter a future assailant from committing a crime like this any more than the unenhanced penalties will; Shepard’s assailants were not prosecuted under any hate crimes law and still faced the death penalty and wound up getting consecutive life sentences under pre-existing, unenhanced Wyoming state law. Those are heavy criminal penalties and they were well-deserved.

Now, I can’t quite sign on to the opposition given by, say, James Dobson — this Hate Crimes Law does not, as he claims, prohibit or deter free expression of Christians who want to express their revulsion towards homosexuality. Give me a break. Christians are free to do so now, provided their expression of revulsion is nonviolent, and the Matthew Shepard Hate Crimes Act would not change that. There was never a freedom of speech exception to murder. (And if I respond to a Christian’s vocal, if nonviolent, expression of revulsion to homosexuality by nonviolently calling that Christian a “bigot,” I am not restricting their freedom of speech, rather, I am exercising my own. Freedom of speech does not mean freedom from criticism. But that’s a discussion for another day.)

But what I don’t understand is why there are hate crimes at all. Murder is already criminal everywhere. The identity of the victim — the defendant’s choice of a particular trait to select his victim — is really kind of irrelevant to that. Assault, rape, robbery: all crimes already, regardless of the victim. All of them bad things, things that harm their victims regardless of whether the victims are straight or gay, Latino or Caucasian, male or female.

I also don’t see a legitimate Federal interest here. Legal scholars (and more importantly, Federal appellate judges) disagree on the exact contours of the limits of the Federal commerce regulation power. The Hate Crimes Act is certainly out towards the limits of that power even to the thinking of someone who sets those limits very broadly. We know that there are some limits, somewhere, to the Commerce power; Congress is not vested with plenary power under the Commerce Clause, or the Tenth Amendment becomes a dead letter. It is very near that already, but our jurisprudence has isolated a few points — the Gun-Free Schools Zones Act struck down in U.S. v. Lopez, for one — that are beyond the Commerce power.

With maximum respect to Matthew Shepard’s family and other victims of gay-bashing, there is no Federal interest in policing against these crimes within the several States. If the Matthew Shepard Hate Crimes Act applied only in the District of Columbia, the territories governed directly by the Federal government, and Federal enclaves like military bases, I might feel differently on this point and rely only on the argument that there is no particular need for a hate crimes law that re-criminalizes already-criminal activity. But this is also an issue with the law as written — this is simply not the sort of thing the Federal government ought to be concerning itself with. The Federal Government’s resources are overstretched now as it is. Making the Justice Department go after the sorts of crimes that state-level D.A.’s are already supposed to be going after is, at best, a misuse of money and time that could be spent addressing uniquely Federal concerns like chasing down coyotes smuggling people into the country and enslaving them or bribing Congressmen or things like that.

Which brings me back to the point I promised to address at the top of this post. Senator Leahy has introduced this law as a rider to the Defense Authorizations Bill. This is the law that not just appropriates but actually spends the money to do things like buy bullets and uniforms for soldiers and pay the salaries of military personnel. As a practical matter, no member of Congress can responsibly vote against this bill. You might be asking yourself, “Okay, but what does paying G.I. Joe his salary have to do with criminalizing gay-bashing?” Nothing at all. That’s why Senator Leahy’s move bugs me.

If I were in Congress, I would vote against the Hate Crimes Act, for the reasons I have articulated above. But I could only do that if it stood on its own merits — if I could make an up-or-down vote on the Hate Crimes Act, I’d vote against it and urge my colleagues to vote against it also. But I couldn’t possibly vote against defense authorization. G.I. Joe needs to get paid, no matter what. Leahy has joined a bill of questionable Constitutionality (yes, I know I’m on the wrong side of the trend of Supreme Court precedent to opine that way) and even-more questionable wisdom to a law that simply cannot be voted against. This means that to oppose the law itself requires a technical procedural vote to sever out the rider from the main bill — a legislative maneuver which is easier for a leader like Leahy to squelch and easier to control the outcome of the vote.

That forces a Hobson’s choice on legislators who disagree with Leahy on passage of the Hate Crimes Act — on someone who thinks like I do that this bill is unwise and an unconstitutional extension of Federal power, and therefore should not be passed. Despite the intense antipathy I feel about the behavior the law is intended to punish.

That is the sort of thing that leaves people cynical about Congress — Leahy apparently does not think the Hate Crimes Act can pass on its own merits, so he piggybacks it on another act he knows is going to pass. Now, you might say, “That’s the sort of thing that legislators do; that’s just part of the game.” And you’d be right. Some days, I might even give this a pass for no other reason than that this kind of thing has been part of the game for a long time and for the most part, the system seems to work well. But I’m not feeling so generous to the system this morning. I think this part of the system seems dishonest and could be improved.

I don’t think there is any systemic rule that could be created here. There just needs to be restraint and logic and, dare I say it, intellectual honesty on the part of legislative leaders like Patrick Leahy. He ought to have enough courage to sponsor a law like the Hate Crimes Act on its own rather than folding it into something else. If I am wrong and this law is a good and necessary one that ought to be passed, then let Congress do so based on its political judgment as to the merits of the law.

Hat tip to Prof. Howard Friedman. I’ve recommended his site before, and I’ll do so again now.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. I also hate these sneaky rider methods. Can't it be banned?One thought as to why it might be desirable. Perhaps some bills have fake opponents. That is, they would like to see them pass but their constituents wouldn't re-elect if they voted for it. They are then relieved to see it as a rider on a bigger bill they must pass. They can yell and give lip service against the method, while secretly relieved to be voting yes in their minds.Still, I'm for banning the practice.

  2. WTF? That was a long, rambling, link-laden comment that not only had nothing to do with the subject matter of the post but didn't seem to have anything to do with, well, anything. Kind of like those random-word spams we all see from time to time. So I blew it out before anyone clicked on what could easily have been rather dangerous links.

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