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Matthew Shephard Hate Crimes Prevention Act Enacted by Congress – Some Constitutional Considerations

by Professor Will Huhn on October 23, 2009

in Civil Rights,Constitutional Law,Wilson Huhn

     Yesterday Congress enacted the Matthew Shepard Hate Crimes Prevention Act as part of the National Defense Reauthorization Act for 2010.  This law makes it a federal offense to assault people because of their race, color, religion, national origin, gender, sexual orientation, gender identity or disability.  However, because of constitutional considerations, crimes based on the victim's race, color, religion, and national origin are treated differently than crimes committed because of the victim's gender, sexual orientation, gender identity, or disability.  The law also contains provisions preserving the prerogative of state governments to punish these crimes, and other provisions protecting freedom of speech.

     Sections 4701 to 4714 of the Defense Reauthorization Act contain the Matthew Shepard Hate Crimes Prevention Act, which will add a new section to Chapter 13 of the federal criminal code.  This new law will be codified at 18 U.S.C. Section 249, and the codified version of the criminal law will simply be called "Hate Crime Acts."

     Section 249(a)(1) makes it a federal crime to "willfully cause bodily injury to any person because of the actual or perceived race, color, religion, or national origin of any person."  It is also a violation of this subsection of the Act to attempt to cause bodily injury to someone on account of the victim's real or perceived race, color, religion, or national origin "through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device." 

     Section 249(a)(2) makes it a federal crime to willfully cause bodily injury to someone because of the victim's "religion, national origin, gender, sexual orientation, gender identity or disability."  This subsection applies only if the perpetrator of the act crosses a state line, uses a channel or instrumentality of interstate commerce to commit the crime, uses a weapon that has moved in interstate commerce, interferes with commercial or economic activity that the victim is engaged in at the time of the offense, or otherwise affects interstate commerce.  It is also an offense under subsection (a)(2) if the hate crime occurred in a place that is under U.S. territorial jurisdiction. 

     Why does the law treat hate crimes based on race, color, religion, and national origin differently from hate crimes based on gender, sexual orientation, gender identity, and disability?  The reason is that Congress has broad power under the 14th Amendment to protect people against discrimination based on race, color, religion, and national origin.  Accordingly, subsection 249(a)(1) is adopted pursuant to Congress' power to enforce the 14th Amendment.  The Supreme Court has ruled that Congress has less power under the 14th Amendment to enact laws relating to gender and disability.  Accordingly, subsection 249(a)(2) is enacted pursuant to Congress' power under the Commerce Clause.  In order to be constitutional, these crimes have to have some connection to interstate commerce: the defendant or the victim crossed state lines; the weapon that used moved in interstate commerce; the person committed the crime by using a "instrumentality" of interstate commerce like a telephone or an airplane; or when attacked the victim was engaged in economic or commercial activity.

     Forty-five states currently have hate crimes legislation.  How will the new federal law be implemented to avoid unnecessary duplication of law enforcement efforts?

     The law places no restriction on the power of the federal government to investigate hate crimes, however there is a "certification requirement" before the federal government may bring criminal charges under the Act.  The law states:

(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or his designee, that–

(A) the State does not have jurisdiction;

(B) the State has requested that the Federal Government assume jurisdiction;

(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

     Essentially, the federal government will prosecute hate crimes only if state and local authorities appear unwilling or unable to prosecute the offense.

     A number of provisions were added to the bill in response to concerns that people could be jailed simply for expressing disapproval of gays and lesbians.  The law is only applicable to "violent acts," and the law defines the term "bodily injury" as specifically excluding "solely emotional or psychological harm."  Finally, the law includes the following provisions regarding freedom of speech:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes on any rights under the first amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion, speech, expression, or association was not intended to–

(1) plan or prepare for an act of physical violence; or

(2) incite an imminent act of physical violence against another.

(3) FREE EXPRESSION- Nothing in this division shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs.

(4) FIRST AMENDMENT- Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(5) CONSTITUTIONAL PROTECTIONS- Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

     Jim Abrams of the Huffington Post published an excellent summary of the enactment of the law here.  He reports that despite the foregoing provisions protecting freedom of speech Senator Jim DeMint (R-SC) asked whether the Act would

"serve as a warning to people not to speak out too loudly about their religious views."

     Abrams also reports that Tony Perkins, President of the Family Research Council, states that the law is

"part of a radical social agenda that could ultimately silence Christians and use the force of government to marginalize anyone whose faith is at odds with homosexuality."

     DeMint and Perkins need not worry about criminal prosecution.  Hateful thoughts are absolutely protected under the Constitution, and the government may punish hateful speech only when it crosses the line from "advocacy" of violence into "direct incitement" to commit a violent act.  Of course, if DeMint and Perkins believe that they have a constitutional right to plan or conspire to commit acts of violence against gays and lesbians, then they are sadly mistaken. 

     DeMint's and Perkins' actual concern is moral, not legal.  DeMint and Perkins and others who share their opinions believe that by opposing tolerance and equality for gays and lesbians that they are taking a principled stand against immorality and sin.  But despite their efforts society is changing – we are becoming more tolerant and accepting of homosexuality, and gays and lesbians are making steady progress towards legal and social equality.  DeMint and Perkins are in fact worried that people will come to regard their views as hateful.  Too bad.


larry d. October 23, 2009 at 9:58 am

What makes you think DeMint and Perkins believe they have a constitutional right to plan or conspire to commit acts of violence against gays and lesbians, Professor?

It seems to me they are not opposing tolerance toward gays, they are trying to insure that same tolerance extends toward christians. I find your post a little hateful, to be honest, but nevertheless look forward to your next self-righteous rant about partisanship.

P.O.L. October 23, 2009 at 6:15 pm

I think your 14th Amendment references should be changed to the 13th Amendment. Since the Act doesn't apply just to the state action wouldn't it have to fall within the "badges and incidents" doctrine?

Dave October 23, 2009 at 10:26 pm

As I have stated before, I am not fond of these unnecessary flavor of the month laws. It is a chance for slow-witted politicians to try to make it sound as if like they are on top of things. (both sides are guilty of this) Another example of this is the rush to pass driving while texting laws. As if it less of an offense to run someone over because you were paying attention to your double cheeseburger instead of the road.

You cannot attempt to cause bodily injury on account of their perceived race. What is wrong with saying – You can not assault people!

I also find it amusing that firearm is listed separately from dangerous weapon. Is there now a loophole where you could use a crossbow or blow gun? If a firearm isn't a dangerous weapon, is a crossbow?

What about injuring someone with something what would not pass the dangerous weapon definition? If a perpetrator were to shove cotton balls down someones throat until they were smothered. That is the problem with flavor the month stuff. You can't possibly cover everything. Gasp, it is permissible to assault people that dye their hair! (I was going to say with red hair, but that could lead to perceived race.)

But I have to say my favorite part is this –
Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

This an admission that these people think that they can amend the constitution by enacting a statute. Of course, they tipped their hand about this with the FISA nonsense.

Quidpro October 24, 2009 at 6:07 am


Your comments on Senator DeMint and Tony Perkins are revealing. You assure us they need not worry about criminal prosecution because "(h)ateful thoughts are absoloutely protected under the Constitution". You have created an troubling equation, Professor. Traditional Judeo-Christian views on sexual morality are "hatefu". You thus provide evidentiary support for the DeMint-Perkins position that this law will (and apparently is intended to) "marginalize" and "ultimately silence" Christians.

Having, perhaps unintentionally, given evidence for their position, you then dismiss their concerns as merely "moral, not legal". Come now, Professor. Does not all law spring from a moral worldview?

Your brief against DeMint and Perkins drips with moral language. You allign yourself with the larger society and claim that "we are becoming more tolerant and accepting" and "are making steady progress". Meanwhile DeMint and Perkins and their ilk "oppose tolerance".

All law is based on morality, including this law. It expresses the moral view that traditional Christian views on sexuality are unacceptable, and according to the Professor, "hateful". And so the Nietschean transvaluation of all values marches on.

larry d. October 24, 2009 at 7:56 am

To be fair, the professor simply thinks and argues like a working lawyer in that he begins with a conclusion then twists whatever logic he can into supporting it. That method of argumentation is necessary when defending a client, I guess, but when it comes to political commentary on a public blog it can at times resemble partisan hackery. Putting aside concerns about the role of such thinking in a university setting, and the corresponding fact that most of our screwed up legislators are the product of such publicly-funded university programs, maybe we should cut the professor a break.

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