Federal Hate Crimes Law and Editorial Missives

As I'm sure everybody knows now, Obama just signed landmark hate crimes legislation making it a federal crime to willfully cause bodily harm to someone because of their actual or perceived sexual orientation, gender identity, or disability. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (enrolled as H.R. 2647, now Public Law No: 111-84) is Division E of the "National Defense Authorization Act for Fiscal Year 2010," meaning that this landmark civil rights legislation was a rider on a military appropriation act.

I was curious to see how (or even if) any respectable opposition to this bill exists. I have found at present only Jillian Bandes at Townhall, who writes:

The Department of Defense Authorization Act (H.R. 2647) is going to a vote on Thursday. It's caused significant strife among Republican Senators who want to vote to fund our troops, but will also be forced to vote for controversial hate crimes legislation if they do so.

Some legislators have said they will withhold their vote; others said they're going to just bite their tongue, but whatever the case, it's a dirty tactic on an issue that deserves a separate, Democratic vote by itself.

I think we can reject the argument on its merits fairly simply. Her definition of "controversial" appears to stem from her misreading of the bill, and to this I would direct people to her April 30 article on the subject. To summarize: this law makes it a federal crime to beat, kidnap, kill, maim, or otherwise inflict bodily harm to someone because they are gay. Where is the controversy in that?

More interesting is an analysis of her rhetoric. Although this two paragraph report is thin, she identifies the use of attaching riders on bills as a "dirty tactic," but perhaps only when engaging an issue that "deserves" a "Democratic vote." I don't want to speculate about her capitalization of Democratic--I suspect this was just careless grammar. But why a "dirty" tactic? The word conjures up an immediate sexual reference, suggesting both the forbidden and the obscene. There seems to be some level of association here between the subject matter--protection of gay men and women--and the author's own feelings on the matter.

I do not deny that this may be making a mountain out of a molehill. But that is precisely what Brand's own reporting does--to point the finger at relatively innocuous legislation that has strong moral content (prevention of violence) and hooks into a well-established constitutional tradition of protecting civil rights (this extends back to 1866) and call it "dirty" is laughable. Unless, of course, one begins with the assumption that federal support of gays' civil rights is morally wrong.

I should point out here that the interesting constitutional issue--well known to constitutional lawyers--is whether the Thirteenth Amendment, which ended slavery, can really provide Congress with the authority to pass hate crimes laws that protect people other than former slaves. Historically, the real question is the ebb and flow of congressional and judicial enforcement of these laws protecting basic human rights. The Supreme Court has swung from one extreme to the other in its history on the subject. Congress has been alternately hot and cool on the subject. And a parallel (although problematic) might be antilynching law, which Congress could never pass in the early twentieth century despite tremendous need because southern senators banded to filibuster and kill such legislation. Now that was a dirty trick.