Wisconsin has become the first state to have its hate crimes law invalidated as a result of the U.S. Supreme Court’s ruling Monday against an anti-hate ordinance in St. Paul, Minn.
On Tuesday, the Wisconsin state Supreme Court struck down the statute. But the battle is not over.
State Attorney General Jim Doyle has decided to ask the U.S. Supreme Court to review the case, and he is being supported by the Milwaukee Jewish Council, which plans to file a friend-of-the-court brief asking the U.S. high court to accept the case.
But that is problematic. If state Sen. Lynn Adelman, an opponent of the hate crimes law, is correct, the U.S. Supreme Court will not accept the case because the state court’s ruling “is consistent” with its St. Paul decision.
“Let’s close this chapter on this effort to criminalize bias,” said Adelman, who is Jewish, “Let’s devote our efforts to dealing with the causes of bigotry.”
But Mordecai Lee, executive director of the Jewish Council, predicted the U.S. Supreme Court will be receptive.
All nine justices voted to strike down the St. Paul ordinance, which prohibited placing “on public or private property a symbol, object, appellation, characterization or graffiti” likely to arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”
Four justices concurred with Justice Antonin Scalia’s opinion that the law was unconstitutional. The other four indicated that another type of hate crimes law could be constitutional.
“I think (Wisconsin’s) law is so substantially different from the St. Paul law that we can make a strong case that it is constitutional,” said Lee of the Jewish Council.
BASED ON SUSPECT’S MOTIVES
Chief Justice Nathan Heffernan authored the majority opinion in the state court’s 5-2 decision. He argued that Wisconsin’s hate crimes law “unconstitutionally infringes upon free speech.”
The 1988 law, which Lee authored as a state senator, adds penalties for acts already illegal. The statute takes effect when a prosecutor proves a perpetrator selected a victim because of the perpetrator’s bias against the victim’s race, religion, ethnicity, disability or sexual orientation.
The court’s decision came in the case of a Kenosha black man, Todd Mitchell, who in 1989 urged a group to black youths to attack Gregory Reddick, then 14, who was walking past.
Mitchell was convicted of aggravated battery and sentenced to two years in prison, plus two more years under the hate crimes law because the victim was selected because he was white. Mitchell appealed the additional sentence on constitutional grounds.
Heffernan objected to the state law because it is “directed solely at the subjective motivation of the actor — his or her prejudice. Punishment of one’s thought, however repugnant the thought, is unconstitutional.”
Justice Shirley Abrahamson argued in dissent that the law “ties discriminatory selection of a victim to conduct already punishable by state law in a manner sufficient to prevent erosion of First Amendment protection of bigoted speech and ideas.”
Justice William Bablitch’s dissent charged that the court’s majority has decided “that the same Constitution which does not protect discrimination in the marketplace does protect discrimination that takes place during the commission of a crime.”
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