Legal Scholars Back Hate Crimes Law Despite Recent Supreme Court Ruling
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Legal Scholars Back Hate Crimes Law Despite Recent Supreme Court Ruling

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Some of the nation’s most eminent legal scholars testified this week on Capitol Hill that laws against hate crimes can be constitutional, despite the recent Supreme Court decision striking down a St. Paul, Minn., hate crimes law because it violated free speech.

The testimony will help fight the challenges to existing hate crimes laws that are expected in the wake of the Supreme Court’s ruling in R.A.V. vs. St. Paul, observed a lawyer for the Anti-Defamation League.

The constitutional scholars were witnesses at a House Judiciary Subcommittee hearing on proposed federal legislation that would increase penalties for crimes motivated by “hatred, bias or prejudice, based on the actual or perceived race, color, religion, national origin, ethnicity, gender, or sexual orientation of another individual or group of individuals.”

Some of the witnesses opposed the legislation, including a lawyer for the American Civil Liberties Union who argued it was “constitutionally flawed.”

But the bill has the strong support of the Anti-Defamation League, which has helped states and municipalities draft similar statutes. Also behind it is the American Jewish Congress, which had opposed the St. Paul statute for endangering free speech by being too broad.

The Supreme Court ruling threw the legal community into a tizzy and cast doubt on the legality of dozens of existing laws against hate crimes. That ruling struck down a hate crime statute in St. Paul, claiming it was too broad and violated First Amendment rights to free speech.


But proponents of the federal legislation say that, like most of the laws on the books around the country, it passes constitutional muster because it is crafted much more narrowly.

They say that where the St. Paul statute criminalized the expression of hatred, the bill merely increases the penalties for crimes already committed based on the “special” identity of the victim or target of the crime.

AJCongress President Robert Lifton, who submitted testimony to the committee, argued that increased penalties are justified because hate crimes are more serious than “garden variety” criminal acts.

Hate crimes do not only victimize their immediate victim, he said, “but the social fabric of this multicultural, multiethnic religiously diverse society.”

“The efforts of the states and the federal government have been thrown into turmoil in the wake of the Supreme Court’s recent decision,” said subcommittee Chairman Charles Schumer (D.N.Y.), who authored the bill.

The decision “raised almost as many questions as it answered,” he said, “and is already having a substantial impact on courts that are attempting to grapple with these questions.”

The day after the ruling, the Wisconsin Supreme Court struck down its state hate crimes law, relying in part on the high court decision. Similar challenges are now in the Supreme Courts of Florida and Ohio.

But Laurence Tribe, Bruce Fein, and Floyd Abrams, all renowned constitutional scholars, said the ruling in R.A.V. should not affect the penalty enhancement bill.

“The trigger for enhanced punishment under the proposed act differs completely from the constitutionally problematic trigger for punishment under the St. Paul ordinance struck down by the Supreme Court in the R.A.V. case,” said Tribe, a constitutional law professor at Harvard Law School.

“Whatever else it did, the R.A.V. decision, fairly read, did not spell constitutional doom for all such laws, and it would be a tragedy to construe it as though it did,” he said.

Michael Lieberman, assistant director and counsel for the Washington office of ADL, said he was heartened by the heavy hitters who defended the bill and planned to use their testimony in ADL’s fight to protect existing statutes.

But he does not predict smooth sailing. “This will be a time (requiring) constant vigilance to make sure not only that the legal challenges are responded to, but that enforcement of the laws is not lax,” he said.

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