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    May 03, 2007

    Shepard bill closer to being a law

    Posted by: Chris

    Matthew05 The House passed the Matthew Shepard Act today by a vote of 237-180, a wide margin but not veto proof. Congratulations to the Human Rights Campaign, the ACLU and the other groups that have worked for its passage.

    The Bush administration was quick to spoil the moment, issuing a statement that said the legislation is "unnecessary and constitutionally questionable."  If the measure passes the Senate, the statement says, the president's "senior advisors would recommend that he veto" it.  That's the equivalent of a veto threat, not a promise, since it's coming from his "senior advisers," but it doesn't bode well.

    The White House statement adds that the administration "favors strong criminal penalties for violent crime, including crime based on personal characteristics, such as race, color, religion, or national origin."  Notably absent from that list are the categories the Shepard Act would add: namely sexual orientation, gender and gender disability.  The statement later acknowledges the addition of these categories but not approvingly; instead commenting only on a few imaginable categories that were not added:

    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.

    The elderly? The military?  Come on.  This country has no significant history of crimes motivated by age discrimination, and the others are occupations not personal characteristics.  Besides, existing federal sentencing guidelines already provide for longer sentences because a victim is selected for being elderly or otherwise vulnerable physically.

    The Bushies have made a bigger deal than anyone out of categorizing and punishing crimes intended to terrorize more severely than those with more garden-variety motives.  That the president would move so aggressively against every conceivable form of terrorism except that motivated by the type of prejudice popular among his own supporters speaks for itself.

    As Andrew Sullivan points out in a post featuring a not-so-flattering photo of yours truly, there's no coherence to supporting hate crimes for some minorities and not others.

    Nancypelosi On the other side of the aisle, it will be interesting to see how the legislation fares in the Senate.  One disgruntled gay Democrat was unhappy with House Speaker Nancy Pelosi's speech in favor of the Matthew Shepard Act.  Though she made passing reference to Shepard's murder and she listed the categories the bill would cover, she somehow managed to never say the words "gay" or "transgender":

    We in our country take pride in saying that we moved to end discrimination of all kinds.  Today, we have an opportunity to end discrimination and the violence that goes with it that equal a hate crime. So whatever you may think of any one of us, based on our ethnicity, or our gender, or whatever, you have no right to act upon that opinion in a violent way.

    On behalf of at least some of the "or whatever's" out there, Speaker Pelosi, you can do better!



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    1. Rob Power on May 3, 2007 9:19:33 PM:

      "This country has no significant history of crimes motivated by age discrimination"

      You sure about that, Chris?


      But that's beside the point. I don't like agreeing with Bush on anything, anyway. :-)

      The real issue here is that our best argument for marriage equality (and adoption, immigration, military service, etc.) is the equal protection clause. By saying "some people are more equal than others," the LLEHCPA and ENDA "special rights" laws undermine this crucial argument of equal protection under the law, which we can't do without when fighting for real equal rights laws in the future.

      Also, if Democrats (and moderate Republicans) can say, "Hey, I voted for LLEHCPA and ENDA, so you can't call me homophobic for voting against marriage, adoption, immigration and military service," it will be our own fault for giving them that excuse.

    1. David on May 3, 2007 9:36:26 PM:

      Earlier today I posted this at Box Turtle Bulletin:

      "And Ann Coulter wonders why most gays refuse to vote Republican.

      Presidents Nixon, Reagan, Bush sr. and G.W. Bush never questioned the constitutionality of the federal hate crimes law as it currently exists to my knowledge. And the Republican Congress from 1994 to 2006 never moved to repeal it. But when it comes to extending it to cover sex, gender identity and sexual orientation it is unnecessary and probably unconstitutional.

      President Bush must think we're all stupid."

      Objection to the act would be respetable if it were based on principle. But this is just pandering to the Christian right.

    1. Citizen Crain on May 3, 2007 9:37:04 PM:

      Two problems,Rob:
      1. Targeting someone because they're old is not the same as committing a violent crime against them because you hate old people. The former is already covered by the sentencing guidelines; the latter would be appropriate for a hate crime law but, as I pointed out, there's no significant history to justify it.

      Two, please stop buying into the idea that hate crime laws make some victims more important than others. If "sexual orientation" is added, then straight people bashed for being straight (it happens) are covered as well. The law recognizes the existence of a category of crime (identified by the Hate Crime Statistic Act, which ranks anti-gay crimes behind only those motivated by race and religion) that have a broader impact than the same crime committed for garden-variety (greed, jealousy, etc) motivations.

      As for your third point, about letting pro-gay pols off easy, that will only happen if we (and HRC et al) let it.

    1. North Dallas Thirty on May 4, 2007 2:17:53 AM:

      The difference is, David, that the existing hate-crimes law only relates to attacks that are made against people while they are participating in Federally-protected actions, i.e. voting. Furthermore, the characteristics it includes (race, religion, national origin) are all specifically mentioned in either the Bill of Rights or other amendments to the Constitution as having that protection.

      If you actually read the bill in question ( http://thomas.loc.gov/home/gpoxmlc110/h1592_ih.xml ), what becomes obvious quickly is what a complete and utter farce it is.

      First, it provides a maximum of $5 million per year to fund investigations, with a maximum of $100k per year per jurisdiction. Given that HRC in its spin and propaganda likes to point out that the Shepard case cost Casper $150k, that means the Federal government will pay only two thirds of that -- and only for about 50 of the 7,000 HRC claims happen annually.

      Second, if one reads it through, you notice that it only applies to "hate crimes" that are committed across state lines or use or affect some form of interstate commerce in the process - which is the Democrats' attempt at a fig leaf to cover up the fact that they are basically saying that the Department of Justice can, at its pleasure, decide to prosecute someone who was already tried in state court because they don't think the sentence that person was given was good enough.

      This law basically does nothing other than codify gays' belief that local law enforcement, judges, and juries are all homophobic, hateful, and against gays, and therefore deserve to have their power stripped at the whim of the Federal government and a person put on trial again because of the characteristics of their victim.

    1. K on May 4, 2007 2:08:49 PM:

      What the Democrats ought to do is suggest repealing the existing hate crimes law, since the Repuglican extremists seem to think it's unconstitutional, and not necessary, and what net.

      I'm joking, of course -- except that this would be a good way to put the deceitful bigots on the defensive for a change.

    1. Rob Power on May 4, 2007 4:40:22 PM:

      Chris, you're ignoring the relevant legal precedents when you say this only applies to hate (re: your argument about the elderly) and when you say that this applies equally to straight people.

      Your own blog covered the Michael Sandy case, which shows that gay people can be targeted because of their perceived weakness instead of hatred for gays, yet hate crime laws still apply. If that argument works for gays, it works for the elderly.

      And the Supreme Court has ruled that race-based laws like affirmative action only work in one direction, e.g., a white person can't claim race discrimination by a black person, and a man can't claim sex discrimination by a woman. That precedent would invalidate any claim by a straight person that they faced discrimination by gays.

      Let's face it -- these laws are all about perpetuating the Orwellian notion that "some people are more equal than others". They are not about creating a two-way street that protects everyone equally.

    1. North Dallas Thirty on May 4, 2007 4:40:47 PM:

      Unfortunately, K, the previous law makes perfect sense from a constitutional standpoint. It allows hate crimes prosecution only for cases involving crimes committed against people who are carrying out a Federally-protected activity, i.e. voting, and who are targeted based on a characteristic that the Constitution explicitly says is protected from discrimination.

      This new law says that the Federal government, at the whim of the Attorney General, or anyone he delegates, can arbitrarily intervene with state law enforcement and judicial systems if a crime not involving rights specifically protected in the Constitution is committed and try a person twice for the same crimes if the first sentence at the state level wasn't good enough.

      Like I said, this law does two things well; it reaffirms most gays' belief that local law enforcement, judiciaries, and juries are underfunded, incompetent, and viciously homophobic, and it demonstrates the Democrats' skill at claiming they're providing "additional funding" without having to really spend anything.

      But I don't think those are reason enough to put in place something clearly this unconstitutional.

    1. Citizen Crain on May 4, 2007 5:10:50 PM:

      So much misinformation, so little time...

      Rob: Actually, white people can sue for race-based discrimination; men can sue for gender-based discrimination; heteros can sue for sexual orientation-based discrimination. The controversy has been over whether whites, men etc can sue when then they were treated differently due to quotas or diversity goals. Whatever you think about affirmative action, it has no applicability to hate crimes.

      NDT: You are leaving out that, for non-race-based hate crimes, the Shepard Act (Sect. 249(a)(2)(B)) limits federal involvement to those that involve interstate commerce, either because the victim was taken across state lines or a gun was used that traveled through interstate commerce etc. Congress has a right to legislate crimes that involve interstate commerce, so the statute is constitutional.

      As for double jeopardy, it doesn't apply as between state and federal prosecutions. A terrorist, for example, could be charged with a federal terror offense and also be tried for murder by the state. Funny I don't see conservatives yelping about that one!

    1. North Dallas Thirty on May 4, 2007 5:34:54 PM:

      "A terrorist, for example, could be charged with a federal terror offense and also be tried for murder by the state."

      Those are two different crimes.

      Remember, Timothy McVeigh, for example, was tried by the Feds for killing Federal agents, and was going to be tried by the state of Oklahoma for murder. Two different crimes.

      And as for the "interstate commerce" position, I mentioned it in my comment above; however, answer me this, in regard to your query:

      -- What possible offense could NOT be punished because of that restriction?

      -- In regards to the first, if the law is meant to eliminate all bias crimes, as it so claims, why is there such a large loophole in it?

      What you forget, Chris, is that the courts define what is and isn't interstate commerce, and I doubt they would be amused by the Democrats' desperate attempt to argue that absolutely anything that ever crossed a state line or had anything to do with crossing a state line is within the power of Congress to regulate -- especially when it pertains to non-Federally-protected activities and whose invoking is based on a characteristic of the victim not specifically mentioned in the Constitution as having legal protection.

    1. Citizen Crain on May 4, 2007 8:19:54 PM:

      I'm sorry NDT but I know the law. An individual can be charged by a state and the federal government for the same offense without violating double jeopardy:

      "Two identical offenses are not the 'same offense' within the meaning of the double jeopardy clause of the U.S. Const. amend. V, if they are prosecuted by different sovereigns. … The dual sovereignty doctrine provides that when a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct 'offences' for double jeopardy purposes."

      This 1985 Supreme Court opinion (Heath v. Alabama, 474 U.S. 82), signed onto by all but the two most liberal justices, held that not only could the state and the federal government each prosecute, so could two different states.

      The "loophole" you criticize is merely Congress extending the reach of the statute to its enumerated powers under the Constitution and not beyond. As a conservative, you should appreciate that they don't attempt to go further.

      If, in fact, you're correct that the courts will view the Shepard Act as a "desperate attempt" to grab power, then the statute will be struck down and you have nothing to worry about.

    1. cynical on May 4, 2007 11:02:45 PM:

      Bush has passed the Cruelty to Animals Act. Apparently, he thinks that dogs and cats are worth protecting but GLBTs are not.

    1. "Every queen" on May 4, 2007 11:09:04 PM:

      Hey, Chris, does the fact that, in the latest example of your ubiquitous bashing of Democrats, and that you felt the need to mention that Nancy Pelosi "somehow managed to never say the words 'gay' or 'transgender' ", this means you've finally acknowledged and repudiated your past hypocrisy, and now support the inclusion of transgender people in this bill?

      Especially in the wake of the fact that a bill that includes transgender people continues to get more and more (and not less) votes every year *AND* the fact that you yourself were a victim of a hate crime?

    1. David on May 5, 2007 1:48:05 AM:

      A few days ago, under the post "Another blunder for Bill, I was taken to task by C-Squared for not being a left-wing ideologue.

      Now I am being taken to task by North Dallas Thirty for not being a right-wing ideologue.

      It seems I just can't win!

    1. North Dallas Thirty on May 5, 2007 2:18:06 AM:

      "Bush has passed the Cruelty to Animals Act. Apparently, he thinks that dogs and cats are worth protecting but GLBTs are not."

      GLBTs are already protected by existing laws, as are all other citizens and peoples within the United States.

      Again, all gay leftists are trying to do with hate crimes laws is to codify their belief that local law enforcement, judges, and juries are underfunded, incompetent, and homophobic.

      Furthermore, I would ironically point out that, under US law, deliberately harming or terminating gestation of animal embryos or eggs is a criminal act.

      Humans, nope.

    1. North Dallas Thirty on May 5, 2007 2:20:29 AM:

      "If, in fact, you're correct that the courts will view the Shepard Act as a "desperate attempt" to grab power, then the statute will be struck down and you have nothing to worry about."

      Given that it's going to be vetoed long before that ever happens -- as it should be -- I wouldn't worry then, either.

      But what I think will be amusing is next year, when this orgy of victimhood-validating legislation is held up as a reason for gays to support homophobic Democrats -- as Kerry's DOMA votes were used in 2004 to justify HRC blowing eight-digit amounts of gay money on someone who, by their own standards, was completely antigay.

    1. Citizen Crain on May 5, 2007 10:49:42 AM:

      Don't be so cocksure, NDT. If the Shepard Act is amended to other legislation — say, for example, defense appropriations — the veto threat will be meaningless.

    1. North Dallas Thirty on May 5, 2007 12:42:05 PM:

      LOL.....sure, Chris. I'm very familiar with the Dem process of trying to push legislation they can't pass otherwise via unrelated bills.

      However, what you forget is that the Bush administration has the best weapon; they can point out that Dems are larding and porking up bills, just like they promised they would NOT do during the campaign, and in the process making it impossible to responsibly approve legislation funding our troops.

    1. North Dallas Thirty on May 5, 2007 1:11:32 PM:

      Oh, and one more thing, Chris; you may do as you like, but I really wouldn't suggest that you or your fellow Democrats try that holding defense appropriations hostage trick.

      Simple reason why: the Bush administration can point out that Democrats refuse to fund our troops fighting terrorists who want to kill all Americans -- unless they are allowed to pass a law that says local law enforcement, courts, and juries are all incompetent and bigoted and should be overruled by the Federal government at its whim, especially when crimes are committed against gays.

    1. Citizen Crain on May 5, 2007 1:20:33 PM:

      I think we've just about reached the point of diminishing returns on this exchange (as fun as it's been!), but let's at least hold both parties to the same standard. Republicans and Democrats both amend legislation to tag on items a president of the other party might veto. And the last six years have certainly taught that both parties are capable of loading bills down with pork.

      P.S. Sticks and stones, NDT. I'm not a Democrat and never have been. You know better than that.

    1. North Dallas Thirty on May 5, 2007 10:48:23 PM:

      LOL.....you're right, Chris. Agree to disagree, and let's call it at that.

      What I will say is, though, that just because both parties do it, doesn't make it right in either circumstance.

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