May 3, 2007

The Gays Were Already There

by PG

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 bill�s 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.

May 3, 2007 2:15 PM | TrackBack

" 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."

Sorry, but I don't buy that at all. The 14th amendment talk about the states' duty to grant all people equal protection of the laws and Congress' authority to enforce the amendment. It makes no disntinction vis-a-vis the equal protection clause between sex/race and other possilble distinctions between people like age, disablity and sexual orientation.

Posted by: David C at May 5, 2007 12:54 AM

David C,

You're not the only one who doesn't "buy that at all," but recent Supreme Court cases striking down the application of federal laws against age and disability discrimination, when applied to state employers, make clear that Congress can override states' sovereign immunity from lawsuit only when Congress does so under Section 5 of the 14th Amendment. In the Court's view, age, disability and sexual orientation do not rate heightened or strict scrutiny (the way sex, race or national origin do), and therefore are not categories to which Congress's Section 5 powers apply. In other words, we can find this ridiculous, but it's what a majority of the Supreme Court says, so it's the law for now.

Posted by: PG at May 5, 2007 1:03 AM
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