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Define the crime

Federal hate crime laws should be expanded to cover anti-gay attacks, which pose a real threat.

May 13, 2007

THE HOUSE OF Representatives has passed a new hate crime bill that pleases gays and lesbians, angers the religious right and has provoked a veto threat from President Bush. But the Local Law Enforcement Hate Crimes Prevention Act should be judged not on the basis of who is for or against it -- or on the message it sends -- but rather on its merits.

They are considerable, but there also are problems that need to be resolved in the Senate. That will be easier if both supporters and opponents stop making extravagant claims about the bill. It is neither "one of the most significant civil rights measures in this or any other Congress," as House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) boasted, nor a threat to the right of preachers to sermonize against homosexuality, as some conservatives complain.

The bill does two important things: It expands a key definition of hate crimes to include acts of violence inspired by a victim's sexual orientation, and it provides federal assistance to local and state law enforcement agencies seeking to prevent and prosecute hate crimes. Both are worthy refinements of existing federal law.

Adding sexual orientation to the definition of a hate crime makes sense whether or not one believes that acts of violence motivated by bias should be punished more severely than other violent crimes. This legislation deals not with penalties but with the allocation of resources in a way that recognizes that bias-fueled crimes exist.

Such crimes include attacks on gays and lesbians. In 2005, according to the FBI, 14.2% of "single-bias" incidents were motivated by sexual-orientation bias. That's less than the 54.7% attributed to racial bias but more than the 13.2% with "ethnicity/national origin bias." The Justice Department already includes such incidents in its hate crime statistics, but the definition of hate crimes for purposes of federal prosecution comprises only crimes motivated by hostility to a victim's race, color, religion or national origin. The government's own statistics suggest that this is an oversight that should be rectified.

The problem is that the House bill goes further, by including gender and disability in its definition of hate crimes. According to the FBI, fewer than 1% of hate crimes in 2005 reflected a bias against the disabled. Although the FBI doesn't keep count of gender-bias crimes, California does, and only 1.3% of the state's hate crimes in 2005 involved "anti-gender bias." A second problem is that the bill lowers the bar for federal intervention in a way that might invite a court challenge. Under current law, the federal government may take over the prosecution of a hate crime only if the crime interfered with a federally protected activity -- a broad category covering everything from travel to study at a state university to use of a public accommodation.

The House bill drops that requirement. Instead it grounds federal intervention in hate-crime cases in Congress' power to regulate interstate commerce. The problem is that the Supreme Court in recent years has been skeptical about the Constitution's Commerce Clause as a rationale for crime legislation.

Congress did use that same constitutional provision in the 1964 Civil Rights Act to get around bigoted state officials. Is such an end-run necessary in 2007? It is, according to Conyers, who warned that "Americans are still being killed out of hatred and intolerance, and in far too many instances, the federal government is still powerless to act."

But consider the incidents Conyers cited as a justification: the 1998 murder of James Byrd, a black man who was dragged to death behind a truck; the killing that same year of Matthew Shepard, a gay college student; and the post-Sept. 11 shooting death of South Asian immigrant Waqar Hasan. In each of these cases, the attackers were punished harshly under state law. If they hadn't been, federal prosecution might still have been possible in all but the Shepard case. And that problem, we hope, can be rectified by the addition of "sexual orientation" to factors that give rise to bias crime.

Congress should close that loophole. But if it tries to do much more than that, it risks giving Bush a pretext for the veto that anti-gay forces are so eager for him to cast.

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