The Senate has joined the House in expanding the definition of "hate crimes" to include attacks on gays and lesbians. In doing so, however, it attached an amendment that would make some hate crimes punishable by death. Democratic congressional leaders should insist that the provision be removed.
Also known as the Matthew Shepard Act, the legislation empowers the Justice Department to assist states and localities with the investigation and prosecution of crimes motivated by the victim's sexual orientation or gender identity, just as it currently does with crimes motivated by racial bias. In April, the House approved the bill as a stand-alone measure. The Senate version is part of a defense authorization bill.
The bill also establishes federal penalties for some hate crimes, which provided an opening for an amendment by Sen. Jeff Sessions (R-Ala.) to allow death sentences for certain hate crimes that end in the death of the victim, whether the death is intentional or not. Republican strategists apparently see this as a kind of poison pill -- they're hoping that when a conference committee meets to reconcile the House and Senate defense bills, it will discard the Shepard Act rather than be sidetracked by a debate over capital punishment; if that happened, the measure would have to be approved all over again by the Senate as a separate bill. A better outcome would be for the committee to simply strip Sessions' amendment from the act.
Conservatives oppose the Shepard Act on two grounds: that it's unnecessary and a violation of the rights to freedom of speech and religion. They're wrong on both counts. FBI statistics demonstrate that violent acts based on sexual orientation are a significant problem, accounting for 16.6% of single-bias hate-crime incidents in 2007. A federal role in dealing with this phenomenon is not only permissible but vital. As for the contention by the religious right that the bill would make it a crime to condemn homosexuality, both versions of the bill make it clear that they target conduct, not speech. No religious leader need fear prosecution for defending traditional doctrine in the pulpit or anywhere else.
Both the House and Senate versions of the legislation have defects, such as an overly broad definition of "hate crimes" to include attacks motivated by hostility toward women and the disabled (and, in the Senate bill, members of the U.S. military). Violence against women is common, but violence motivated by misogyny isn't; meanwhile, hate crimes against soldiers and the disabled are extremely rare. By contrast, violence motivated by hatred of gays and lesbians is real and well documented. An overdue response to that threat shouldn't be held hostage to a contrived debate over capital punishment.