Andrew Sullivan notes and quotes the White House statement on President Bush's intent to veto H.R. 1592, but Sullivan has been misled by the Concerned Women for America's saying "Bush To Veto Gay Hate Crimes Law." He says, "The president will apparently prevent inclusion of gay victims of hate crimes within the federal statute."
No, no. In the Violent Crime Control and Law Enforcement Act of 1994, Congress already defined "hate crime" for the purpose of sentencing enhancement: "DEFINITION- In this section, 'hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person." The FBI collects statistics on the same bases: "Each year's edition of Hate Crime Statistics presents data regarding incidents, offenses, victims, and offenders in reported crimes that were motivated in whole or in part by a bias against the victim's perceived race, religion, ethnicity, sexual orientation, or disability." The last paragraph of the president's statement was the one that might have given the false impression that characteristics other than race, sex, national origin and religion were not previously covered:
Moreover, the billís proposed section 249(a)(1) of title 18 of the U.S. Code raises constitutional concerns. Federalization 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. Section 249(a)(1) is not by its terms limited to the exercise of such a power, and it is not at all clear that sufficient factual or legal grounds exist to uphold this provision of H.R. 1592.This sounds like an allusion to Section 5 of the 14th Amendment,which the Supreme Court in recent years has used as the limit on how far Congress can override state sovereignty under the 11th Amendment; that is, because Section 5 has been understood to empower Congress to legislate toward equal protection, Congress can pass laws that take away states' rights to discriminate on the basis of race or sex, but not on the basis of age or disability -- or, should it ever be federally legislated, sexual orientation. I don't know if this will help Sullivan find any more coherence in the position that the feds can prohibit hate crimes based on some characteristics yet not others.