Hate crimes measure advances

Conference committee must next reconcile House, Senate differences
Jul 24, 2009 By Chris Johnson The Washington Blade

The U.S. Senate has approved a hate crimes measure, advancing it as part of a major defense bill, but lawmakers on Capitol Hill must still reconcile differences with the House version before it can proceed to President Obama’s desk.

Introduced as an amendment, the hate crimes measure was adopted by unanimous consent July 16 as part of the fiscal year 2010 defense authorization bill after cloture was invoked. Senators from Maryland and Virginia all voted in favor of the motion to end debate, which succeeded, 63-28.

The hate crimes amendment, introduced by Sen. Patrick Leahy (D-Vt.), was identical to a standalone bill that Sen. Ted Kennedy (D-Mass.) unveiled earlier this year. The measure would allow the Justice Department to assist in the prosecution of hate crimes committed against LGBT people that result in death or serious injury.

After senators pass the defense bill, a conference committee will form to iron out the differences between the House and Senate versions of the legislation. Final votes in the full House and Senate will likely take place in September, according to the Human Rights Campaign.

Among the issues that the conference committee will address are amendments the Senate approved Monday that alter the hate crimes provision.

The amendments authorize the death penalty for certain hate crimes, create new criminal penalties for crimes against U.S. service members and require that all hate crimes prosecutions be pursuant to guidelines established by the attorney general.

Three of the amendments were introduced by Sen. Jeff Sessions (R-Ala.), an opponent of hate crimes legislation. Another amendment, introduced by Kennedy, clarified one of his amendments related to the death penalty.

A roll call was taken on the amendment relating to service members, and the measure passed 92-0. The other amendments were adopted by unanimous consent.

In a statement Monday, Leahy said a vote on the amendments was part of a deal with Republicans to let the hate crimes measure move forward. He noted that he supported each of the amendments in modified form.

Prior to the vote on the amendments on Monday, Sessions spoke out on the floor against the hate crimes measure, which he called a “substantial overreach by Congress.” He said existing hate crimes statutes providing protections for race were enacted because of a substantial body of evidence showing that blacks were denied civil rights and that LGBT Americans aren’t facing similar problems.

“Gays and lesbians have not been denied access to basic things like health [care], schooling or the ballot box,” Sessions said, adding that gay people “have no difficulty in approaching government officials.”

Another issue complicating the passage of hate crimes is the inclusion of $369 million in funding for F-22 fighter jets in the House version of the defense bill. The White House has said Obama will veto any defense bill that comes to his desk containing funds for additional F-22 aircraft.

On Tuesday, the Senate voted 58-40 to strip the bill of $1.75 billion in funding for the jets. House and Senate lawmakers will have to hash out the lingering difference in conference committee, but two sources familiar with Capitol Hill told the Blade that a Democratic Congress won’t send to a Democratic president a defense bill that he would veto.

An additional complication is the American Civil Liberties Union’s concern regarding the phrasing of the Senate’s hate crimes provision.

Recalling arguments that social conservatives have used in challenging the measure, ACLU said in a statement last week that the Senate version of the measure could infringe on free speech rights.

In the July 17 statement, the ACLU said the Senate hate crimes measure lacks “the strong protections for speech and association” found in the House version of the legislation that lawmakers in that chamber approved in June.

Chris Anders, ACLU’s senior legislative counsel, said in the statement that, “fierce protection of free speech rights has historically created the space for the improvement of civil rights protections.”

“Unless amended to block evidence of speech and association not specifically related to a crime, the Senate hate crimes amendment could chill constitutionally protected speech and association,” he said.

Anders said “an otherwise unremarkable violent crime” shouldn’t become a federal case because the defendant visited the wrong web site, belonged to a group espousing bigotry or subscribed to a magazine promoting discriminatory views.

But HRC is disputing suggestions that either the House or Senate version of hate crimes legislation limits free speech rights or religious freedoms.

In a statement July 17, David Smith, HRC’s vice president of programs, said both chambers’ versions of the legislation “contain explicit language protecting speech and association.”

“Each version approaches the important matter of First Amendment protections differently, but both do it effectively,” he said. “The Senate bill contains an explicit provision stating that the bill does not limit constitutionally protected speech, expressive conduct, or activities.”

But Linda Paris, an ACLU spokesperson, said her organization wants specific language found in the House version included in the final version of the bill.

The language ACLU is seeking reads: “Evidence of expression or association of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing the impeachment of a witness.”

This provision was included in the 2007 Senate version of hate crimes legislation, which was included as part of the fiscal year 2008 defense authorization bill, but didn’t make it into law, Paris said.

Anders told the Blade that ACLU is hopeful lawmakers will include the evidence provision during a conference committee for the defense bill, adding “there is good reason to believe” that House lawmakers will insist on its passage since the House included it in its version of the bill.