LA TIMES Editorializes In Favor Of Exclusionary Legislation

The Los Angeles Times has a peculiar editorial in Monday's edition which argues that the federal hate crimes act (H.R. 1592) which passed both houses of Congress is too inclusive. Not because it includes protected categories of sexual orientation and gender identity, but because it includes gender and disability!

The U.S. Senate has joined the House in voting to expand the federal definition of hate crimes to include acts of violence inspired by a victim's sexual orientation. Yet by declining to curb some of the House bill's excesses, the Senate may have assured its failure.

The Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act, named after the gay University of Wyoming student who was beaten to death in 1998, is a well-meaning but over-broad bill that is probably headed for a presidential veto -- if it gets that far. The Senate unwisely attached it to a defense funding authorization from which it could easily be stripped in a conference committee.

The Justice Department already includes anti-gay attacks in its hate-crime statistics. But when it comes to federal assistance for state and local prosecutions, the definition of a hate crime is narrower, encompassing crimes motivated by a victim's race, color, religion or national origin, but not by a victim's sexual orientation or gender identity. The legislation approved by both houses would rectify that unconscionable omission. The problem is that it goes further, extending the definition to crimes based on gender or disability. That could give President Bush a pretext for vetoing legislation opposed by his conservative base.

Obviously, acts of violence or intimidation should be prosecuted aggressively regardless of the motive, and no doubt some are motivated by hatred of men or women or even (though this is hard to imagine) of disabled people. But such crimes are rare. According to the FBI, less than 1% of hate crimes in 2005 reflected a bias against the disabled. The FBI doesn't keep count of gender-bias crimes, but California does. In 2006, "hate crime events" involving gender and disability combined accounted for only 0.8% of incidents, compared to 18.8% of incidents motivated by the victim's sexual orientation.

Evidence abounds that, like racial minorities, gay Americans are subjected to violence because of who they are. In 2005, according to the FBI, 14.2% of "single-bias" incidents involved sexual-orientation bias. That's less than the 54.7% attributed to racial bias but more than the 13.2% motivated by "ethnicity/national origin bias."

It's understandable why the authors of the legislation erected such a "big tent" -- the longer the list of protected groups, they may have thought, the less controversy. But in legislating so broadly, they have undermined their best argument for adding sexual orientation to the definition of a hate crime: the demonstrated existence of a problem requiring federal intervention in what is ordinarily the business of municipal law enforcement. By targeting the Matthew Shepard law to the all-too-common animus that cost him his life, Congress would make it harder for Bush to argue that it was providing solutions for which there is no problem.

This is a simply bizarre position articulated by the Times editorial board. The President has already announced that he would veto the bill, if it were to make it to his desk. The official announced points in contention for the White House were not the "disability" or "gender" provisions but the fact that there were too few provisions in the bill:

State and local criminal laws already provide criminal penalties for the violence addressed by the new Federal crime defined in section 7 of H.R. 1592, and many of these laws carry stricter penalties (including mandatory minimums and the death penalty) than the proposed language in H.R. 1592. State and local law enforcement agencies and courts have the capability to enforce those penalties and are doing so effectively. There has been no persuasive demonstration of any need to federalize such a potentially large range of violent crime enforcement, and doing so is inconsistent with the proper allocation of criminal enforcement responsibilities between the different levels of government. In addition, almost every State in the country can actively prosecute hate crimes under the State’s own hate crimes law.

H.R. 1592 prohibits willfully causing or attempting to cause bodily injury to any person based upon the victim’s race, color, religion, or national origin, gender, sexual orientation, gender identity, or disability. The Administration notes that the bill would leave other classes (such as the elderly, members of the military, police officers, and victims of prior crimes) without similar special status. The Administration believes that all violent crimes are unacceptable, regardless of the victims, and should be punished firmly.

Moreover, the bill’s proposed section 249(a)(1) of title 18 of the U.S. Code raises constitutional concerns. Federalization of criminal law concerning the violence prohibited by the bill would be constitutional only if done in the implementation of a power granted to the Federal government, such as the power to protect Federal personnel, to regulate interstate commerce, or to enforce equal protection of the laws. Section 249(a)(1) is not by its terms limited to the exercise of such a power, and it is not at all clear that sufficient factual or legal grounds exist to uphold this provision of H.R. 1592.

The L.A. Times editorial is endorsing the position that if a minority is small enough, then its concerns are not significant enough to warrant legislation to defend or protect. So somehow there's some threshold at which a minority's concerns become important enough for the majority to care about. What is that number? 10%? 5%? 1%? Shouldn't we try and prevent wrong acts from occurring even if it only affects one person?

The editorial also shows a complete lack of understanding why one would create legislation that would cover a long list of groups. It's not "to reduce controversy." It's because discrimination against one group is related to discrimination against other disenfranchised groups, and by including all the disenfranchised groups together the legislation has a larger constituency of support.

Mad Professah would note that according to the logic of the Times editorial, they would support SPLENDA (H.R. 2015), the version of the federal Employment Non-Discrimination Act which would only cover sexual orientation employment discrimination, and NOT include transgender employment discrimination, since transgenders individuals are a much smaller group than LGBT individuals (although proportionately, transgender people suffer employment discrimination more prevalently).

The latest news on ENDA (and SPLENDA) is that the bill is not on the agenda of scheduled floor votes on the House of Representatives this week, according to Pam at The Blend, quoting Mike Rogers PageOneQ.