Effective or symbolic? Testing the constitutionality of the Matthew Shepard and James Byrd Hate Crimes Prevention Act
| DOI | 10.1177/0020764013515565 |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| Author | Joseph Erba |
| Subject Matter | Articles |
Article
Effective or symbolic?
Testing the
constitutionality of the
Matthew Shepard and
James Byrd Hate
Crimes Prevention Act
Joseph Erba
Abstract
In an effort to reduce violent acts of discrimination against members of the lesbian, gay,
bisexual and transgender community, President Obama signed the Matthew Shepard and
James Byrd Hate Crimes Prevention Act into law on 28 October 2009. The Act has been
both praised and criticized for expanding the list of protected classes of hate crime
victims to include sexual orientation, gender, gender identity and disability. Indeed,
the Act was passed after a heated debate regarding its constitutionality. This paper
therefore explores whether this Act would be able to withstand a constitutional chal-
lenge. Rulings by the US Supreme Court are analyzed to evaluate the validity of claims
articulated during the hearings as well as testimony given in the debates leading to the
passage of the Act. The analysis also relies on other cases and current hate crime state
statutes. Findings suggest that because the Act does not define certain key terms, it might
not pass a constitutionality test on the basis of the vagueness doctrine.
Keywords
Speech, hate, crime, vagueness, law, lesbian, gay, bisexual and transgender
School of Communication, American University, USA
Corresponding author:
Joseph Erba, School of Communication, American University, 4400 Massachusetts Ave,
Washington D.C., USA.
Email: joseph.erba@american.edu
International Journalof
Discrimination and theLaw
2014, Vol. 14(2) 99–116
ªThe Author(s) 2013
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0020764013515565
jdi.sagepub.com
Introduction
The US Congress passed the Matthew Shepard and James Byrd Hate Crimes Prevention
Act on 22 October 2009. The Act extends existing federal protections to protect people
from hate crimes based on race, color, religion or national origin
1
to include those com-
mitted on the basis of gender and gender identity, disability and sexual orientation.
2
This
Act has revived the debate on the potential infringements of hate crime laws on First
Amendment rights, specifically with regard to freedom of expression regarding lifestyles
of lesbian, gay, bisexual and transgender (LGBT) people. There is no question that the
First Amendment protects people’s right to speak out against matters of sexual orienta-
tion. Indeed, the US Supreme Court recently ruled that picketing military funerals to pro-
test against homosexuality falls under First Amendment protection.
3
However, the US
Supreme Court also ruled that language inciting others to take violent actions against
a person is not protected by the First Amendment.
4
Given these rulings and the new law,
what would be the implications of discriminatory language uttered during an act of vio-
lence? Should such language lose its constitutionally protected status? It is not clear
whether the language of the law effectively protects members of the newly included
classes against violent acts of discrimination or whether the constitutionality of the law
could be challenged in court.
President Obama signed the Matthew Shepard and James Byrd Hate Crimes Preven-
tion Act, hereafter referred to as the Hate Crimes Prevention Act, into law on 28 October
2009. The law punishes ‘‘offenses involvingactual or perceived religion, national origin,
gender, sexual orientation, gender identity, or disability.’’
5
Since the bill was introduced
in the House of Representatives on 28 April 2009, the text of the law has been interpreted
in many different ways, and its opponents have questioned its constitutionality. The main
point of contention regarding the law has tended to focus primarily on sexual orientation,
which this paper thoroughly addresses.
The Federal Bureau of Investigation (FBI) reports that there were 7697 victims of hate
crimes in 2011, which represents about 21 per day and approximately one per hour (FBI,
2012). There were 1506 offenses motivated by sexual orientation bias, which represents
slightly more than four offenses per day for that year (FBI, 2012). Fifty-eight offenses
reported were related to disability, and none were based on gender identity (FBI,
2012). These statistics only represent the number of reported offenses, not the number
of offenses actually committed, which means that these statistics remain inconsistent and
incomplete (Bakken, 2002).
Hate crime statistics have been tracked since 1990, when the Hate Crime Statistics
Act
6
was passed, but it would be another 20 years before the Hate Crimes Prevention Act
would come to pass. Matthew Shepard was a gay, white 21-year-old student at the Uni-
versity of Wyoming who was lured to a secluded area by two white men pretending to be
gay, who then beat him, tied him to a fence and left him for dead in 1998 (Brooke, 1998).
That same year, in a small East Texas town, James Byrd, a 49-year-old black man, was
dragged to death from the back of a pickup truck by three white men, two of whom were
known to be Ku Klux Klan supporters (Cropper, 1998).
Prior to the Hate Crimes Prevention Act, the Violent Crime Control and Law Enforce-
ment Act of 1994 allowed federal prosecution for bias-motivated, violent, injurious
100 International Journal of Discrimination and the Law 14(2)
To continue reading
Request your trial