Irrelevance on Hate Crimes

Politicians are often accused of being irrelevant. But rarely has a group of them been so intent on proving that charge than the senators who voted last week for the "The Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007."

This bill is supposed to be a brave and pioneering piece of legislation. According to the Human Rights Campaign, a gay-rights organization, "Congress has taken an historic step forward and moved our country closer to the realization that all Americans, including the GLBT [gay, lesbian, bisexual and transgender] community, are part of the fabric of our nation."

The bill, passed by the Senate Thursday, is named for a gay man beaten to death in Wyoming in 1998. In explaining the need for this bill, co-sponsor Sen. Gordon Smith, R-Ore., declared, "What happened to Matthew should happen to no one."

You know what? He’s right. Which is why murder is against the law, even in Wyoming, and why Shepard’s attackers are now serving sentences (life in prison) that would not be any longer if this law had been in effect then.

As it happens, the bill will not likely ever become law, because the president has promised to veto it. But it would be a mostly cosmetic exercise even if it were enacted.

It targets crimes based on a host of illegitimate factors, including the victim’s race, religion or national origin, as well as "gender, sexual orientation, gender identity, or disability." Some of the latter categories have earned the bill the fervent denunciation of the Traditional Values Coalition for allegedly "catering to the homosexual/drag queen lobby."

That may win it the endorsement of Rudy Giuliani and John Travolta, but the bill has other shortcomings. The first is the defining defect of hate crimes bills: It is intended to provide extra penalties for criminals who think incorrect thoughts.

It’s already illegal, after all, to deliberately injure someone with a gun or an explosive. But this measure establishes special punishment for anyone who carries out such an attack because the victim has certain traits. It’s like slapping extra jail time on those who assault people who demonstrate against the Iraq war but not people who demonstrate in favor.

The most important feature, though, is one that the sponsors are loath to publicize. For all its grand intentions, it doesn’t really do much at all. Supporters would like to make every hate crime a federal offense. But they can’t. And the ones they can outlaw are so few and far between that it’s hard to see why they bother.

The problem is that ordinary crime is mainly the purview of state and local governments. Over the last century, the federal government has usurped a lot of functions once assigned to lower levels of government, but there are limits on how far it can go.

Back in 2000, the Supreme Court struck down a major part of another high-minded statute, the Violence Against Women Act, which allowed anyone attacked because of her gender to sue the attacker in federal court. The reason the court gave for overturning the law was simple: The Constitution doesn’t give Congress the power to legislate against crimes of a purely local nature.

Said the court, "We can think of no better example of the police power, which the founders denied the national government and reposed in the states, than the suppression of violent crime and the vindication of its victims." Only if such crimes are clearly connected to interstate commerce — which is rarely — can Washington intervene.

So if Congress can’t legislate on violence against women, how can it legislate on violence against women, gays, lesbians, bisexuals, transvestites, transsexuals and the disabled? The truth is, it can’t — except when such offenses are connected in some way to interstate commerce.

So the authors of the hate crimes bill were forced to restrict it to incidents that fit this tiny exception. The provision in question thus snares only those crimes in which someone crosses state lines, uses "a channel, facility or instrumentality of interstate or foreign commerce," or uses a weapon that has traveled across state or international boundaries.

What’s the relevance to the murder of Matthew Shepard, or to most of the other attacks on gays? None whatsoever. You might think it’s better to do nothing than to do something irrelevant. But for a lot of senators, there’s no gesture like an empty gesture.