In "What's Hate Got to Do With It?" (December 1992), I argued that enhancing penalties for crimes when they are motivated by bigotry "punish[es] what people say, think, and believe, in violation of the First Amendment." Four months later, the U.S. Supreme Court unanimously disagreed, upholding a Wisconsin hate crime law on the grounds that it punished not speech, thought, or belief but the act of selecting a victim based on race. By 2009 all but five states had adopted such laws.
One of the exceptions is Wyoming, a fact that attracted national attention following the 1998 murder of Matthew Shepard, an openly gay college student who was robbed, savagely beaten, and left tied to a fence near Laramie. (Robert O. Blanchard considered the anti-Wyoming fallout from Shepard's death in his May 1999 article "The 'Hate State' Myth.") Shepard's attackers already faced a possible death penalty and ultimately received life sentences, so a hate crime law would not have made a difference in that case. The murder nevertheless gave rise to the federal Local Law Enforcement Hate Crimes Prevention Act, a.k.a. the Matthew Shepard Act.
This bill, the latest version of which was approved by the House of Representatives in May and has President Obama's support, would add offenses committed "because of" a victim's actual or perceived gender, sexual orientation, gender identity, or disability to the list of hate crimes that can be prosecuted under federal law. It also would remove a condition limiting such prosecutions to cases where the victim was participating in a federally protected activity such as education or voting. Instead it would cover crimes with any connection to interstate commerce, no matter how minor or tangential.
The legislation federalizes many crimes traditionally prosecuted under state law, potentially including rapes targeting women (selected because of their gender) and muggings of disabled people (selected because they are less able to resist). It would thus make it easier for federal prosecutors who are displeased by an acquittal in state court to try the defendant again, which the Supreme Court has said does not violate the constitutional prohibition of double jeopardy. Yet the American Civil Liberties Union, whose members have long been divided over hate crime laws, has endorsed the Matthew Shepard Act, saying the measure "doesn't punish bigotry," since it "blocks evidence of speech and association not specifically related to a crime."