Published October 12, 2009
Editor's note: The House voted Thursday to make it a federal crime to assault people because of their sexual orientation, significantly expanding the U.S. hate crimes law enacted in the days after the 1968 assassination of civil rights leader Martin Luther King Jr. The Senate is expected to pass the bill, allowing federal prosecutors for the first time to intervene in cases of violence perpetrated against gays. For more on this story, click here.
The House has now rammed through a provision making it a hate crime to target gays. Should this provision become law, it’s on shaky constitutional ground, though not for the reason most people expect.
The House attempted yet again to move a perennial pet project of Speaker Nancy Pelosi and Judiciary Committee Chairman John Conyers: making it a federal crime to target a homosexual for violence. Only this time they succeeded. They attached this bill as an amendment to the Fiscal Year 2010 Defense Authorizations Act, shamelessly cramming this social-issue measure onto the legislation that enables our troops in battle to get funding for weapons and supplies.
This bill also includes some feel good language, saying that it shall not be construed to penalize any constitutionally protected speech or religious belief. Well, no kidding. It goes without saying that no federal statute can override the Constitution, that any attempt to do so is automatically null and void and completely unenforceable in court.
Those feel good words carry absolutely no legal force, since they simply state a truism that every court in the land automatically applies. They just provide those supporting this bill with some political cover to tell constituents, “Look, I made sure everyone’s First Amendment rights are protected here.” Religious Americans and conservatives, however, should derive little comfort from these vacuous assurances.
Now that there is a good chance that this provision will become law shortly, the question arises: Is this hate crimes provision unconstitutional?
Maybe. But either way, it’s a lousy bill.
The Constitution doesn’t forbid bad ideas or bad laws; it only forbids unconstitutional laws. Supreme Court Justice Antonin Scalia once said that judges should be issued a rubber stamp along with their robe when they become a federal judge. He said they need this stamp because these three words should be written so often by a judge that he shouldn’t have to write it out each time.
Scalia says that stamp should read, “Stupid, But Constitutional.”
It’s bad public policy to try to take specific views or beliefs and make them part of a crime. Most violent crimes involve some form of hate, and it’s much easier to prove what a person did or did not do, compared with what was in their heart regarding specific groups of people when they did it.
Ironically if it is unconstitutional, it’s probably not because of any First Amendment issues. Here's why: The Supreme Court upheld a Wisconsin hate crimes law involving race in the 1993 case Wisconsin v. Mitchell. What’s important about the Mitchell opinion is that Chief Justice William Rehnquist wrote the opinion for a unanimous Court. All nine justices—liberal, moderate and conservative—voted to uphold the law.
Conservatives have no choice but to reach this conclusion because they have a proper view of how narrow the term “speech” should be defined. Liberal judges have transformed “speech” into anything involving “expressive conduct.” That’s how nude dancing suddenly became protected under the Free Speech Clause. Conservative judges rightly confine speech protections to spoken or written material where the speaker intends to communicate an idea.
This was central to Chief Justice William Rehnquist’s opinion in the Mitchell case. The Court reasoned that since the targeting of a specific individual in not speaking, it is not protected by the First Amendment.
A person’s intentions regularly make a difference in a crime. Whether killing someone was done with premeditation and reflection is the difference between first and second-degree murder. Whether a killing was done is with malice aforethought is the difference between murder and manslaughter. Whether a person’s lethal act was intentional is the difference between voluntary and involuntary manslaughter. Whether one person intended to hit another is the difference between battery and negligence. And so on.
The Mitchell case involved a person who committed an act of violence with the intention of targeting a particular racial group. Nothing in the Court’s opinion would prevent a person from asserting a First Amendment defense based on either what they said or their religious beliefs, if some rogue prosecutor were to go after someone who did not themselves aid any violent act. The law would otherwise survive, but it would be held unconstitutional as applied to such situations.
But although this federal law may not violate the First Amendment, it may be unconstitutional anyway. In Mitchell, the Court was upholding a state law. That’s important because states wield the police power: the authority to make general laws for the public health, safety and morality of the population.
The federal government has no police power, except in Washington, D.C., federal territories such as Guam or Puerto Rico, or federal holdings such as military bases. The federal government cannot assert any police power in the fifty states.
So the federal government—as a government of limited jurisdiction—must have a specific provision of the Constitution that authorizes this hate-crimes provision. If it has none, then the law is unconstitutional.
Beyond that, the Thirteenth, Fourteenth and Fifteenth Amendments expressly involve race, so you can make an argument that there is an implicit federal element where racial issues are involved, although it’s a stretch. But there is no reference to homosexuality anywhere in the Constitution, so it’s plainly not a federal issue.
This is a real hurdle for this law. In 2000, the Court struck down the Violence Against Women Act (VAWA) in United States v. Morrison. Congress had cited its power to regulate interstate commerce as authorizing this law. This is not surprising, because Congress often tries to assert the Constitution’s Commerce Clause as a catch-all for legislation.
The Court rejected that position, holding in Morrison that the Commerce Clause only applies to commercial activities, and that while violence is abhorrent, it doesn’t involve money in the economy.
This provision is quite similar to VAWA and so it should suffer the same fate. Violence must not be tolerated but state laws exist in every state to fully punish those who harm other human beings. While the states can increase the punishment for a crime based on the intentions of the criminal, the federal government has no such power.
But the thing to keep in mind about Morrison is that it was a 5–4 decision; the four liberals on the Court sought to uphold VAWA. Should this hate-crimes provision become law, whether it is held unconstitutional may well turn on whether President Obama gets the opportunity to push the Court to the left through his judicial appointments.
Either way, this bill makes the federal government a national policeman. Even if it were constitutional, giving a whole new range of powers to an already too big central government is a bad idea.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.