Friday, October 23, 2009

Finally, Congress Got it right: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act is headed for the President’s Desk

Yesterday (October 22), the U S Senate passed The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Once it is signed by President Obama, it will become the first Federal law to explicitly include all GLBT (Gay, Lesbian, Bisexual and Transgendered) individuals inside the protective umbrella of federal law. This represents a sharp reversal from earlier Federal legislation that explicitly excluded the transgendered from its provisions.

Specifically, in the 1990's, when Congress codified the military “Don’t Ask, Don’t Tell” policy, it legitimized the practice of barring all GLBT individuals from military service. When Congress enacted the landmark Americans With Disabilities Act, the legislation explicitly excluded transsexuals from its protective provisions. None of the federal laws addressing either employment or housing discrimination provide protections based on sexual orientation or gender identity. The Federal Defense of Marriage Act (or DOMA, for short) excludes same-sex couples from federal protections and benefits. Many states use this law to justify legally declining to recognize same-sex marriages entered into in another state.

This new law adds sexual orientation, gender identity, gender and disability to Federal hate (or bias motivated) crimes protection. In addition, local authorities who are unable or unwilling to deal with hate crimes will now be allowed to seek federal assistance. On this point, this new law represents a valuable step forward because there are many law enforcement departments that simply lack either the resources or the expertise to properly deal with crimes of this nature. More troubling are the Prosecuting Attorneys who decline to add hate crime charges to crimes that meet the definition. Perhaps that situation will now improve.

One point needs to be emphasized. Unlike claims still being made by right wing authors and commentators, this new law does not address hate speech. Thus, it does not muzzle deeply conservative churches who have divorced themselves from bedrock Christianity. Its provisions apply only when an individual is physically attacked because of their real or perceived sexual orientation, gender identity, gender or disability.

Thus, it will still be legal to write and talk about hate-driven topics, so right-wing radio and television talk shows are free to continue their spew of verbal diarrhea uninterrupted. However, it will now be legally not ok to physically act out on that warped rhetoric.

This is as it should be, and I applaud Congress for showing this rare use of statutory restraint. Some radical group likely will try to challenge this new law on First Amendment grounds. By explicitly excluding all forms of speech from its provisions, passing constitutional muster in the courts should be more easily achieved.

It will be interesting to observe the response to this law here in Idaho. Idaho law does recognize freedom from discrimination as a civil right. However, this recognition excludes discrimination based on age, gender, sexual orientation, disability or gender identity. I suspect its impact in this state will be minimal for quite a while.

No comments: