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Sunday, July 22, 2007

A Brief History of National Hate Crimes Legislation for Gays


1998 hearings in which Orin Hatch stated, "I believe that the Federal government can play a valuable role in eliminating hate crime." He's voted for gathering statistics, federally funding the protection of women, and federal penalties for damaging churches, but never for gays and lesbians. Testimony and statements.

Hate crimes bills amending existing legislation to include "sexual orientation" go back at least as far as 1997, when Senator Kennedy (D-MA) introduced S1529 in November, eventually gathering 33 co-sponsors, at least three of whom were Republicans, Jeffords (R-VT, until 2001), Chaffee (R-RI), and Specter (R-PA). (Charles Schumer, D-NY, introduced the bill in the House.) Hearings were held in July of 1998. The tragedy of Matthew Wayne Shepherd on the high plains in Wyoming didn't occur until October, 1998. It's possible to assume that Specter's name appeared on the bill as one of the courtesies of the Senate, since Specter was among the first sponsors but didn't obviously support the legislation later. No votes were held on the legislation.

In March, 1999, Senator Kennedy again introduced the legislation, S622, with impressive testimony and unequivocal police endorsement. This time, however, Orin Hatch (R-UT) had his own bill, S1406, requiring a study to be completed. Hatch, Chairman of the Judiciary Committee, got his study.

In May, 2000, the legislation was attached to the end of the FY2001 Defense Appropriate Bill (see Title XV), apparently rather than handled as an amendment. The bill went to conference by unanimous consent (no drill-down, roll-call vote available, therefore), but the hate crimes Title XV apparently got snagged, there, as the GOP controlled House version of the Appropriation did not include similar language.

In March of 2001, Senator Kennedy again introduced the legislation, S625. By May of the next year, 2002, the study/report was ready. The new Chairman of the Judiciary, Senator Leahy, got the bill out of committee, by unanimous consent vote, and onto the senator floor. A GOP filibuster on June 11, 2002, caused the legislation to get killed at 11:55 a.m, on a 54-43-3 vote.

Among the notable "nays" was Senator ... Arlen Specter (R-PA). Specter's own state's Senate was just voting to pass one of the nation's most comprehensive, state hate-crimes laws, following the tragic and astoundingly violent case of Michael Auker, who had been beaten into a coma in Middleberg, PA, the year before. Other notable "nays" include McCain, both of Wyoming's Senators, Judd Gregg (NH), John Warner (VA), and Mitch McConnell (KY).

For the next five years, under the GOP leadership, the bill would go nowhere, despite having a majority in the Senate in favor of adoption. Senator Kennedy reintroduced the bill in 2003, S966, but the Judiciary was, by then, back under the clenched fist of Senator Orin Hatch. (Utah, even today, is one of about four states that either provide no express criminal or civil statutory redress of any 'hate crime', including for race, religion, or ethnicity or effectively no redress. Utah has a ineffectual (unenforceable) criminal statute and nothing civil - see ACLU here and update in 2006, adding comparatively very weak penalty provisions to the code. For a taste of kabuki, Utah's own Attorney General, Mark Shurtleff, has been lobbying against anti-gay sentiment for years to get a better State statute).

In 2004, months into Operation Iraqi Freedom, Smith (R-OR)/Kennedy attached the legislation to the Defense Authorization Bill as an amendment (S.AMDT.3183) and it passed, both in the House (213-186, albeit just on motion to instruct conferees) and in the Senate (65-33, on direct amendment vote). Notable "Nays" included McCain, McConnell, Sununu, and Domenici. Notable "Yeas" included the two Republican senators from Virginia, Warner and Allen; Voinovich (Ohio), and ... Judd Gregg and Arlen Specter. Stevens (AK) appears to have been favorably influenced ...

Bush-43 objected to its inclusion and got his way:
... the House instructed its conferees to support it in the conference report on the bill. Unfortunately, House leaders insisted that the provision be dropped in conference. - Kennedy, May, 2005 (cited above).

Kennedy reintroduced the bill in 2005, S1145, but this time it was Senator Arlen Specter as Judiciary Chairman. The bill died in committee. [I have no 'negative activity report' for 2006, so I cannot say if a bill was introduced or not].

In 2005, an interesting conflict arose along the way, as a GOP controlled Senate voted to pass a measure, S39, by acclamation, rather than expose some people as hypocrites for not being willing to submit to a roll-call vote apologizing for the Senate not enacting anti-lynching legislation sooner. Among some not signing on to S.39, both Republican senators from New Hampshire, Judd Gregg and John E. Sununu; both Republican senators from Mississippi, Thad Cochran and Trent Lott; both Republican senators from Wyoming, Enzi and Thomas. Also Republicans Richard "Dick" Shelby from Alabama, Jon Kyle of Arizona, and Bob Bennett of Utah. All of these also voted against extending hate crimes legislation to gays in 2002, save Sununu who was not a Senator at the time.

In 2006, Chairman Arlen Specter allowed the profoundly anti-gay Federal Marriage Amendment out of committee, in order for there to be a floor vote in June of 2006, ahead of the fall of '06 elections. (Specter voted against the measure on the floor...as did oddball Judd Gregg.)

In 2007, with the "Contract on America" canceled at last, the now Democratically controlled House passed HR 1592, on May 3, the day after it was introduced. The Republican's President threatened to veto the bill the same day, issuing a statement from the OMB, of all places, declaring the bill too narrow, unnecessary, and constitutionally dubious. Distinguishing himself with a motion to recommit, the last gasp to kill a measure in the house, was one Texas Representative, Lamar S. Smith, Republican. One contributor to the SF Bay Times sums up Mr. Smith gone-to-Washington-to-extend-and-expand-the-Reagan-Devolution in this way:

Both of my senators here in Texas where I write this column have a “zero” rating from [LGBT Washington advocacy group] HRC. My congressman, in turn, one Lamar Smith, spent the last weekend in Boston at the Judeo-Christian Council for Constitutional Restoration, where he observed that the American judicial system was undergoing a “crisis.” The 200 people at that conference, I read in the Washington Post, don’t simply want to remove the judges who refused to plug Terri Schiavo back into her glucose drip, they want all branches of the government to adhere to a biblical worldview based on a literal reading of the nonsensical and contradictory mixed bag that falls into the definition of “scripture.” They are nuts, and my very own congressman is right in the thick of things, cracked shell and all.

The current bill in the Senate, S1105, has 43 co-sponsors, ten more than in 1997. The list includes ... Arlen Specter. (No, I didn't just make that up). Judd Gregg is not a co-sponsor (to date).


[other, various sources]

The first federal law to combat hate crimes, in Title VII in the Civil Rights Act, 18 USC Section 245, passed in 1968. (Attacked in this year's session of the Supreme Court under Alito and Roberts, this is the legislation that followed the successful prosecution in the so-called "Mississippi Burning" case in which three voter registration guys were killed). Among the so-called federally protected activities are most anything related to voting, being a juror, enrolling in or attending public schools, receiving benefits or services from the Federal government or anyone getting Federal financial assistance, and applying to or working for the Federal government.

The Hate Crimes Statistics Act of 1990 (HCSA, H.R. 1048) mandates the Justice Department to collect data from law enforcement agencies about crimes. The final bill, but not the original house draft, used the words "sexual orientation", as follows: "acquire data, for the calendar year 1990 and each of the succeeding 4 calendar years, about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property." It was amended to include 'disability' via the Violent Crime and Law Enforcement Act of September, 1994; but data wasn't systematically compiled until 1997. The Act was 'permanently reauthorized' in 1996. Among four (4) Senators voting against the bill in 1990 were Senators Trent Lott and Jesse Helms ...

The Hate Crimes Sentencing Enhancement Act, enacted as a section of the Violent Crime Control and Law Enforcement Act of 1994 (H.R. 3131 as introduced), Title XVII (as enacted H.R. 4092), defines hate crimes as "a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, national origin, ethnicity, gender, disability, or sexual orientation of any person."

Reference, QuickLinks:

  • The 2002 Senate vote (motion to invoke cloture) that killed the bill
  • What was going on in PA, while Arlen Specter (and Rick Santorum) were "Partying" with their votes, rather than representing the people of their State, arguably ...
  • Senator Orin Hatch's "we must study this" report, completed even though hate crimes legislation for non-gays has been on the books since 1968, in various forms. See also comments from report contributor Marty Lederman, from the Balkinzation blogologolog, specifically about the apparent hypocrisy of a Bush-43 objection that the current bill expands Federal authority, rather than just amend the existing legislation, on the grounds that they have accepted such expansion in related context (commerce clause authority) - if I understood that right.
  • The 1996 Church Arson Prevention Act, created ... er, 'special rights' (?) for religious property (S. 1890), with considerable Republican support, including Senator Orin Hatch as a co-sponsor, even. The Act "prohibits intentionally defacing, damaging, or destroying religious real property (or attempting to do so) because of the race, color, religious, or ethnic characteristics of any individual associated with such property."
  • A timeline from long-involved National Gay and Lesbian Task Force includes this legislatively related tidbit (if Bush-43 has done anything on hate crimes similarly, let me know.):
    "Finally, on June 8, 1997, President Bill Clinton spoke out against hate crimes that targeted victims based on skin color, religion, ethnicity, gender, physical ability and sexual orientation. Clinton announced that he would convene a special White House Summit on Hate Crimes on November 10, 1997. Task Force Executive Director Kerry Lobel launched a nine-city tour through heartland America in summer 1997 to hear stories of hate violence perpetrated against LGBT people and to gather hundreds of signatures on petitions urging the president to take action against hate violence. Nearly 1,000 signatures were presented at the White House Summit on Hate Crimes, which resulted in the introduction of the Hate Crimes Prevention Act, a bill that adds sexual orientation, gender and disability to existing federal hate crimes law."
    In 1997, the FBI divided its Civil Rights Unit into a Color of Law Unit and a Hate Crime Unit.
  • In 1998, The Violence Against Women Act "II" (S 2110/H.R. 3514) was passed and signed (as H.AMDT.683 of H.R.3494). The Violence Against Women Act of 1994 was passed against heavy Republican filibuster (H.R. 3355 as voted, Title IV). Notable "yeas", Warner and Specter. Notable "nays", Hatch, Gregg, McConnell, McCain, Stevens, Domenici. Notably, HR 3494, arguably created a federal 'special class' out of children (or expanded it) for the purposes of penalty assignments and enhancements.

Other notable dates:

1979 — Massachusetts enacts first state law aimed at hate crime (following riots that broke out over court-ordered busing).

1982 —In a watershed moment for Chinese-Americans, an unemployed Michigan autoworker and his stepson attack and beat Vincent Chin to death with a baseball bat to his head, thinking that he is Japanese.

1983 — U.S. Civil Rights Commission issues a report calling for study of bias-motivated crimes, although it is soon to be “morning in America” for the head-in-the-sand, ostrich GOP.

1985 — First Congressional hearing on hate crime is held, focusing on race, religion, and ethnicity. [Hate and Bias Crime: A Reader, Routledge (2003), p. 262]

1986 —First Congressional hearings on anti-gay violence held [ibid.].

1988 —ADL adds sexual orientation to model legislation

1992/1993 — Scope of Constitutionality decided, clearing the way for many states to adopt additional protections:

June 1992, a cross-burning case, R.A.V. v. City of St. Paul [505 U.S. 377 (1992)], was taken up by the Supreme Court. Justice Scalia, writing for the majority (with a set of three other written, concurring opinions, as well) rejected the “fighting words” interpretation of the Minnesota court in favor of broad free speech protections, making restrictions on such things as cross-burning and bias-motivated speech unconstitutional. (This means that the oft-warned “chilling effect on free speech” of hate crimes laws is a red herring, for a long time now …)

June 1993, the United States Supreme Court unanimously upheld the constitutionality of penalty-enhancement hate crimes statutes, in Wisconsin v. Mitchell [508 U.S. 476 (1993)]

1996 — the Anti-Defamation League adds gender to its model hate crimes legislation. [*note: a second source says the date for this is 1990]

— Sodomy "obstacle" removed

June 2003, the United States Supreme Court strikes down remaining thirteen (13) State sodomy laws, in Lawrence v. Texas [539 U.S. 558] overturning its chilling Bowers v. Hardwick ruling [478 U.S. 186] from seventeen years earlier, 1986. This removes an obstacle seen by some to hate crimes protections for sexual orientation, although some States continue to have sodomy laws on their books.