The President's Disingenuous Arguments Against Expanding the Federal Hate Crime Law

By MICHAEL C. DORF

Wednesday, May. 09, 2007

The original version of this column neglected to note the Thirteenth Amendment objection. Professor Dorf added discussion of this issue in response to a thoughtful note from Georgetown Law Professor Martin Lederman. -- Ed.

With the House of Representatives poised to enact a bill that would expand coverage of the federal hate crime law to include crimes motivated by animosity on the basis of gender, sexual orientation, gender identity, and disability, quick Senate approval is also expected. But last week, President Bush threatened a veto. The law, his Administration said in an Office of Management and Budget (OMB) statement, is unnecessary, unfair, and unconstitutional.

The White House's objections are not entirely without merit. Hate-crime laws do raise difficult questions about the proper role of mental states in assessing criminality. Further, federal hate crime legislation raises important questions about the proper division of responsibility between the state and national governments. However, as I shall explain in this column, these cannot be the real grounds for the President's opposition--for if they were, they would also provide reasons for repealing the existing federal hate crime law, which criminalizes hate crimes based on race, color, religion and national origin, but not gender, sexual orientation, gender identity, or disability.

The true grounds for the President's threatened veto appear to be simpler and more odious: The Bush Administration aims to curry favor with voters who oppose any legal recognition for same-sex relationships, even protection against private violence.

In this respect, the President's objections are consistent with a longstanding campaign of misdirection by some conservative politicians: They offer neutral-sounding arguments against expanding civil rights to cover sexual orientation and similar statuses; for example, they object to what they call "special rights." Yet they refuse even to acknowledge an obvious consequence that would follow from some of their arguments, if adopted: They would also eliminate civil rights protection against discrimination based on race, religion and national origin--protections that these same conservative politicians clearly favor.

If the President wants to veto the pending legislation because of hostility to equal rights for gay, lesbian, bisexual, and transgendered Americans, then he should at least have the decency to acknowledge his real motives.

The Constitution's Spending Clause: Clear Authorization for Key Parts of the Law

The OMB statement argues that "[f]ederalization of criminal law concerning the violence prohibited by the bill would be constitutional only if done in the implementation of a power granted to the Federal government, such as the power to protect Federal personnel, to regulate interstate commerce, or to enforce equal protection of the laws." That's certainly true, but there is no reason to think that the pending bill falls outside the Constitution's grants of power to Congress.

Much of what the new law would do is to provide assistance--in the form of cash grants and cooperation by federal law enforcement--to state and local law enforcement authorities in combating hate crimes. These efforts undoubtedly fall within the spending power of Congress which, the Supreme Court has repeatedly held, permits Congress to earmark funds for any purpose it deems appropriate.

Accordingly, the OMB statement does not contend that the direct assistance and grant measures are unconstitutional. Instead, to the extent that the Administration addresses these provisions at all in the OMB statement, it contends that they are unnecessary because state and local law enforcement authorities are already doing a good job of combating hate crimes.

Yet even if that's true overall--and the House bill says it is not--the pending legislation would only provide assistance to those states and localities that specifically request aid. Those that conclude they do not need help, need not request it. Moreover, under the proposed legislation, when and if requests were made, the decision whether to provide assistance would be made on a case-by-case basis by the Justice Department.

Thus, the bill is hardly a piece of pork-barrel legislation for the constituents of any particular member of Congress. It is, instead, a delegation of power to the Executive Branch of government to make precise judgments about when and where to support the determination by state or local authorities themselves that assistance is needed.

The Commerce Clause Objection

So much for any constitutional objection to the spending measures. What about an objection to the expansion of criminal liability?

The addition of federal criminal penalties for hate crimes based on gender, sexual orientation, gender identity, and disability cannot be supported under the Congressional spending power. Yet it falls within another power of Congress: The power to regulate interstate commerce.

Under precedents stretching back to the early days of the Republic, the Supreme Court has held that the power of Congress to regulate interstate commerce covers much more than the power to regulate discrete transactions at the border between states. Far more broadly, it also covers regulations of the national market.

To be sure, the Supreme Court has said recently that the concept of a national market is not limitless. In the 1995 case of United States v. Lopez and the 2000 case of United States v. Morrison, the Court struck down purported exercises of the Commerce Clause power that reached purely intrastate non-commercial activities. But the Court made clear in both cases that its holdings would not apply to a law that contained a "jurisdictional element"--that is, a statutory requirement that, in each particular case, a link to interstate commerce must be demonstrated. Accordingly, since Lopez and Morrison, the lower courts have routinely upheld broad exercises of the Commerce power where the relevant statute does contain such a jurisdictional element.

Members of Congress and their staff are fully capable of reading Supreme Court opinions, of course, and thus, they have included a jurisdictional element in the pending hate crime bill. In particular, the bill would only impose federal criminal penalties where the hate crime involved the crossing of state or national borders; used a "channel, facility, or instrumentality" of interstate commerce (language taken directly from the Supreme Court's cases); used a weapon that had moved in interstate commerce; or interfered with or otherwise affected interstate commerce.

Indeed, as far as Congressional power under the Commerce Clause goes, the new law would be based upon exactly the same rationale as the current version of the law. It too criminalizes only those hate crimes that satisfy a statutory jurisdictional element linking the crime to interstate commerce.

It's possible that the Bush Administration wishes to roll back current understandings of the Commerce Clause, so that the Clause only covers trade between states, rather than regulation of national markets. Justice Clarence Thomas has advocated this very narrow view of Congressional power in prior cases. But if the Administration takes so narrow a view of the Commerce Clause, then it would have to object to much more than the proposed amendments to federal hate crime law. It would have to object to the existing federal hate crime law--and to many more laws as well, including laws the Administration has vigorously enforced and defended in court.

The Thirteenth Amendment Side Issue

There is, to be sure, one way in which the pending bill does raise a genuine issue of constitutional federalism. One provision of the bill would impose criminal liability for hate crimes on the basis of race, color, religion, or national origin (but not gender, sexual orientation, gender identity, or disability) even without the establishment of a link to interstate commerce, and even without state involvement in the crime. The OMB statement singles out this provision as raising constitutional doubts.

What is the authority for this provision? According to the legislative history, Congress can penalize private violence motivated by racial and similar animus under its power to enforce the Thirteenth Amendment-which bans slavery and, under the Court's precedents, the "badges and incidents" of slavery.

That's a fair reading of the Supreme Court's cases interpreting the scope of Congress's enforcement power, but the relevant cases pre-date the Rehnquist Court's decisions narrowing the scope of Congressional power to enforce the Fourteenth Amendment, and so there is some doubt about their continuing vitality and scope.

Nonetheless, this is a side issue because, even if the contested provision is beyond the power of Congress under the Thirteenth Amendment, in the vast majority of cases, it will be easy to satisfy the jurisdictional element, and so the law will fall within the power of Congress under the Commerce Clause, as discussed above.

Do Hate Crime Laws Violate the First Amendment?

Some libertarians object to hate crime legislation on the ground that it punishes people for their thoughts, rather than their deeds. The difference between a murder based on a wish to take the victim's property, and a murder based on hatred of transsexuals, they say, is simply a difference in thoughts. Punish both murders severely, these libertarians say, but don't single out the "bad thought" for additional punishment.

This is not a trivial objection, but it does not bear on the current controversy--for two principal reasons. First, the Supreme Court has squarely rejected the argument. Although the Court said in the 1992 case of R.A.V. v. St. Paul that the government may not single out a crime for special punishment in virtue of the message it expresses, it later said that this is quite different from specifically penalizing a particular motive, which is constitutionally permissible

Thus, in the 1993 case of Wisconsin v. Mitchell, the Court unanimously said that the First Amendment's prohibition on criminal penalties for hate speech does not bar enhanced penalties for particular motives. Motive analysis, the Court noted, has long been understood as essential to the operation of the criminal law.

Despite the Supreme Court's unanimity in the Mitchell case, reasonable people may find the distinction between hate speech and hate crimes (or between message and motive) to be slippery stuff. If so, they may worry about hate crime legislation.

But this brings us to the second reason why the libertarian objection to hate crimes is misplaced, if raised with respect to the current controversy: If you think hate crime legislation impermissibly interferes with freedom of thought, then you will object to all hate crime legislation--including the existing version of the hate-crime law (the one that does not list sexual orientation). Yet the Administration has not even hinted that it would like to see the current federal hate crime law repealed.

The "Special Rights" Evasion

As I have argued above, the OMB statement makes arguments that have, as their logical conclusion, the repeal of the existing federal hate crime law. Nevertheless, the OMB statement begins as follows: "The Administration favors strong criminal penalties for violent crime, including crime based on personal characteristics, such as race, color, religion, or national origin."

That appears to be a deliberately ambiguous statement. Does the Administration mean to say that it favors laws that specifically enhance penalties where the perpetrator committed the crime based on animus to the victim's race, color, religion, or national origin? If so, it would be able to support the existing federal hate crime law. But as we have seen, the OMB statement's arguments against the expansion of the hate crime categories are also arguments against any federal hate crime legislation, including the existing law.

And indeed, one sees that view expressed in the OMB statement as well. It states: "The Administration believes that all violent crimes are unacceptable, regardless of the victims, and should be punished firmly."

So why doesn't the Administration put its money where its mouth is, and call for the repeal of the existing hate-crimes law? Because the truth is that President Bush, like too many other conservative politicians, wants to have it both ways: He wants credit from moderates and liberals for supporting civil rights--including laws imposing extra penalties for hate crimes on the basis of race, color, religion, and national origin--while standing firm against expanding civil rights protection to minorities defined by sexual orientation (and in this instance, gender).

Such an expansion, conservatives often argue, would be giving gay persons "special rights." They have been using this strategy for over a decade. For example, during a 1996 Presidential debate between Senator Bob Dole and President Bill Clinton, both candidates were asked whether they supported legislation making it illegal to fire people on account of their sexual orientation. Clinton said yes. Dole gave the following misleading answer: "I'm opposed to discrimination in any form but I don't favor creating special rights for any group."

Unfortunately, moderator Jim Lehrer did not ask the obvious follow-up question: If you think that a law banning discrimination on the basis of sexual orientation improperly creates "special rights" for gays, lesbians and bisexuals, does that mean that you oppose the 1964 Civil Rights Act on the ground that it creates special rights for African-Americans and women?

In fact, civil rights legislation almost never creates "special" rights in the sense that its disingenuous critics suggest. For example, the central federal statute, the 1964 Civil Rights Act, protects whites as well as blacks, and men as well as women, against race and sex discrimination. Likewise, the expanded federal hate crime law would protect everybody against hate crimes based on sexual orientation, including hate crimes against straight people.

In actual practice, it's true that we expect civil rights legislation to be invoked more frequently by minorities and women than by members of the socially dominant group. But that is because the former have the dubious honor of being targeted disproportionately for discrimination and hate crimes. The law itself applies to, and protects, everyone.

This is not to say, of course, that every conceivable category of discrimination or hate crime warrants specification in the law. The Bush Administration could legitimately argue that hate crime legislation should be reserved for the most serious forms of animus, and that the current version of the federal hate crime law does just that.

However, the Administration's failure to make this argument--and the mutually contradictory nature of the arguments it does make--strongly suggest that its real goal in opposing an expanded federal hate crime law is simply to pander to homophobia.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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