BLOGROLL

The following originally appeared as an op-ed in the Desert News. -Staff

The political stars have finally aligned for passage of a new and expansive federal hate-crimes law. Soon, President Barack Obama and a number of his Democratic allies in Congress will likely stand on a stage to tell the world just how much they hate hate, and they'll have a new law to prove it. Sadly, they could have expressed this same sentiment without recklessly and needlessly expanding the powers of the federal government. But what would be the fun in that?

The House passed a hate-crimes bill on April 29, and a similar bill has been introduced in the Senate. Both would create a new federal crime for willfully causing bodily injury (or attempting to do so) because of the victim's actual or perceived "race, color, religion, national origin, gender, sexual orientation, gender identity or disability." A person unfamiliar with the hate-crimes debate reading these provisions would likely respond by asking, "Wait, isn't that already a crime?" At that point, they'd officially be one step ahead of the proponents of these bills.

Currently, 45 states already have hate-crimes statutes on the books. Furthermore, crimes such as murder, assault, vandalism and harassment -- the offenses typically associated with hate crimes -- are punishable in every jurisdiction in the U.S. In the many years Congress has debated this issue, we have heard horrific accounts of killings, beatings or other such crimes motivated by bias or prejudice. During that time, many of us have been asking for evidence that these crimes are going unpunished at the state level.

We're still waiting.

The most oft-repeated example is the story of Matthew Shepard, a young Wyoming man who was savagely beaten and murdered in 1998 because of his sexual orientation. The horrific accounts of Shepard's murder have been detailed countless times as justification for a new federal hate-crimes law. The Senate hate-crimes bill bears Shepard's name, which is ironic because his story perfectly demonstrates why such a law is unnecessary. Both of Shepard's killers were tried, convicted and sentenced to consecutive life terms in state court. Make no mistake, Shepard's story is a profoundly tragic one, but an expanded federal hate-crimes law would have done nothing to prevent the murder or add to the punishment his killers received. This is typically the case.

Both bills introduced this year also would expand the definition of a hate crime to cover offenses motivated by a victim's "gender identity." However, "gender identity" is not defined in either bill, nor is there any existing legal definition of the term. Using what appears to be the conventional understanding of "gender identity," one must conclude that it is a matter of the self-perception. So, in essence, this legislation would provide enhanced punishment for crimes wherein the perpetrator was motivated by the victim's perception of themselves. Taking us even further through the looking glass, the bills also include crimes motivated by the victim's perceived gender identity, meaning they would punish a perpetrator's false perception of a victim's self-perception.

At best, this legislation unnecessarily intrudes on state governments and creates crimes that are impractical to prosecute. At worst, it would be unconstitutional.

The authors of this legislation have maintained that Congress' constitutional authority to regulate interstate commerce allows for the prohibition and punishment of hate crimes because they indirectly affect interstate commerce. This is difficult to square with the Supreme Court's views on the Commerce Clause as the court has determined that a more direct link to interstate commerce is required to justify federal regulation of noneconomic activity.

Also, while both bills ostensibly prohibit prosecution for any activities protected by the First Amendment, the fact that they punish certain motives on the basis of political and social viewpoints calls their constitutionality into question. Past experience demonstrates that the only way the government will be able to prove such motives exist is to delve into defendants' personal lives -- the books they read, the Web sites they visit, the churches they go to -- and place them before a jury. Constitutional issues aside, the picture of a jury deliberating over the specific thoughts of a defendant should be enough to make supporters second-guess the wisdom of this approach.

This is not 1960; it is 2009. While violence and criminal activity motivated by prejudice still occur, any claims that state officials continue to turn a blind eye when confronted with such detestable acts are not supported by the evidence. Ultimately, the president and the Democrats in Congress should find a constitutionally permissible new way to declare their hatred of hate.