In Defense of Hate Crimes Legislation

I explained the purpose and defended the validity of hate crimes legislation in a pair of posts that were published in 2009 in the Akron Law Cafe. Those posts are summarized and updated here.

In The Pending Federal Hate Crimes Legislation - Part 1, I reviewed the history and text of the "Local Law Enforcement Hate Crimes Prevention Act of 2009. This law was later enacted as the "Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, and was signed into law by President Obama on October 28, 2009. The law expanded existing federal law to cover crimes motivated by the gender, gender identity, sexual orientation, or disability of the victim. The new law is now codified at 18 U.S.C. § 249(a) (2). Section 249 and similar laws were originally adopted during Reconstruction to protect the newly-freed slaves from terrorism and intimidation at the hands of their former masters, and it prohibited violent crimes motivated because of the race or color of the victim. The law has steadily expanded to include threats and violence motivated by the actual or perceived religion or national origin of the victim, and now gender, gender identity, sexual orientation, and disability. The "Part 1" post defended the constitutionality of the proposed law as being within Congress' power under the Commerce Clause as well as Congress' power to enforce the provisions of the 14th Amendment. In 2014 a federal district court in Oregon upheld the constitutionality of the law as applied to an assault motivated by sexual orientation, reasoning that the Commerce Clause vested Congress with the power to prohibit violent crimes committed with weapons that had moved in interstate commerce. United States v. Mason, 993 F.Supp.2d 1308 (D. Or., 2014).

In The Pending Federal Hate Crimes Legislation -- Part 2, I defended the law against arguments that are commonly raised against hate crimes legislation. In response to the claim that laws prohibiting "hate crimes" interfere with freedom of expression, I noted that the law expressly punishes only threats and violent actions, and expressly protects the expression of opinions. A lawsuit challenging the federal statute that was brought by a group of anti-gay pastors was dismissed on the ground that they lacked standing as plaintiffs to challenge the law. Why did they lack standing? Because they failed to allege that they intended to commit acts of violence against gays and lesbians or that they intended to incite anyone else to commit acts of violence! The Circuit Court found that the law punishes threats and violence, not the expression of opinions. Glenn v. Holder, 690 F.3d 417 (6th Cir., 2012).

In response to the contention that hate crimes statutes confer "special rights" or that they protect "particular groups of people," I responded:

The Hate Crimes Act provides that no person may be physically assaulted on account of their race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.  The law applies if a group of blacks attacks a white person because he is white - if a group of women attack a man because he is a man - if a group of gays or lesbians attack a person because he is heterosexual.  OK, there doesn't seem to be a violation of the law if someone is attacked because of "lack of disability," but you get the point.  The law targets hatred and protects the victims of hatred.  It doesn't mean that some people get more protection than others.  If Grandma is attacked because she is a woman or because she is Polish or because she is Lutheran or because she is heterosexual then she is protected by this law.  If she or any one of us is attacked at an ATM not because of hatred but simply for the cold, hard cash, well that is not a violation of this law.  But that does not mean that some people are receiving "special treatment."  We are, in fact, all treated the same under this law.  We would all be protected against crimes of violence motivated by hatred of the groups we belong to.

These laws protect all of us from violence motivated by hatred of our race, religion, gender, gender identity, sexual orientation, or disability. These laws, like laws requiring non-discrimination in employment and housing, equal access to public accommodations, and marriage equality, make our society more peaceful, more efficient, and more just.