My colleague, Perfesser Schaff, has a post on the hate crimes legislation moving through Congress. Here is CNN:
The White House has threatened to veto a bill passed by the House of Representatives on Thursday that expands hate-crime laws to include attacks based on sexual orientation or gender.
Under current law, hate crimes are subject to federal prosecution only if the acts of violence are motivated by race, religion, color or national origin. Federal prosecutors get involved only if the victim is engaged in a federally protected activity, such as voting or participating in interstate commerce.
I largely concur with Professor Schaff: if there is reason to oppose this bill, it is because this is a matter for the states and not for Congress. It would be the business of the latter only if there was a finding that states were not protecting homosexuals against violence, or that perpetrators were finding refuge by fleeing across state lines. I think that neither is the case.
Nonetheless, I would council against a Presidential veto. Conservatives argue, rightly, against the creation of special rights for special groups. An act of violence is not worse if committed by a heterosexual bigot against a homosexual than if committed by a homosexual bigot against a heterosexual, and some hate crimes legislation have had that outcome. See RAV v. St. Paul.
But I have argued in favor of hate crimes legislation. The problem is that some criminals believe that certain classes of victims (homosexuals, immigrants, etc.) don't really enjoy protection by the larger society. A character in the movie Judge Roy Bean couldn't imagine that it was really against the law to kill a Chinaman. By providing stronger penalties for crimes committed against those who are selected out of the larger population, the law visibly corrects that error. I think that such laws can be tailored so that they protect everyone, and not just the most vulnerable groups. All of us are subject to being selected out in some circumstances.
I would council the President to work with Congress on a law that protects everyone against hate crimes.
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