Constitutionality of The Matthew Shepard Hate Crimes Prevention Act

• Decision Date: 16 June 2009
• Docket Number: 09-8
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: CONSTITUTIONALITY OF THE MATTHEW SHEPARD HATE CRIMES PREVENTION ACT

33 Op. O.L.C. 1

CONSTITUTIONALITY OF THE MATTHEW SHEPARD HATE CRIMES PREVENTION ACT

No. 09-8

United States Department of Justice

June 16, 2009

MARTIN S. LEDERMAN Deputy Assistant Attorney General

CONSTITUTIONALITY OF THE MATTHEW SHEPARD HATE CRIMES PREVENTION ACT

The two new criminal prohibitions created in the Matthew Shepard Hate Crimes Prevention Act would be constitutional.

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL OFFICE OF LEGISLATIVE AFFAIRS

You have asked for our views on the constitutionality of a pending bill, S. 909, the Matthew Shepard Hate Crimes Prevention Act. In particular, you have asked us to review section 7(a) of S. 909, which would amend title 18 of the United States Code to create a new section 249, which would establish two criminal prohibitions called "hate crime acts."

First proposed section 249(a)(1) would prohibit willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device "because of the actual or perceived race, color religion, or national origin of any person." This provision is similar to an existing federal law, 18 U.S.C. § 245 (2006), the principal difference being that the new section 249(a)(1), unlike section 245, would not require the prosecutor to prove that the victim was or had been "participating in or enjoying any benefit, service privilege, program, facility or activity provided or administered by any State or subdivision thereof."

Second proposed section 249(a)(2) would prohibit willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person, " section 249(a)(2)(A), but only if the conduct occurs in at least one of a series of defined "circumstances" that have a specified connection with or effect upon interstate or foreign commerce, see section 249(a)(2)(B). This new provision would prohibit certain forms of discriminatory violence—namely, violence committed because of a person's actual or perceived gender, sexual orientation, gender identity or disability—that are not addressed by the existing section 245 of title 18.^[1]

S. 909 is, in these respects, nearly identical to a bill this Office reviewed in 2000.^[2] In our analysis of that proposed legislation, which your Office transmitted to Congress, we concluded that the bill would be constitutional. See Letter for Senator Edward Kennedy from Robert Raben, Assistant Attorney General, Office of Legislative Affairs, United States Department of [ 2] Justice (June 13, 2000) (attached); see also S. Rep. No. 107-147, at 15-23 (2002) ("Senate Report") (reprinting the OLA Letter containing the 2000 OLC analysis as an explanation of the constitutional basis for such legislation). In 2007, however, the Office of Management and Budget indicated to the 110^th Congress that one provision of such legislation would raise constitutional concerns, see Statement of Administration Policy on H.R. 1592 (May 3, 2007), as did the Attorney General, see Letter for the Hon. Carl Levin, Chairman, Senate Committee on Armed Services, from Michael B. Mukasey, Attorney General, at 6 (Nov. 13, 2007) (regarding section 1023 of H.R. 1585).

We have carefully reviewed the relevant legal materials and now conclude, as we did in 2000, that the legislation is constitutional. The Attorney General concurs in this view.

Section 249(a)(1)

As we explained in 2000, see Senate Report at 16-18, we believe Congress has authority under section 2 of the Thirteenth Amendment to punish racially motivated violence as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery. Congress may rationally determine, as it would do in S. 909, that "eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude, " and that "[s]lavery and involuntary servitude were enforced . . . through widespread public and private violence directed at persons because of their race." S. 909 § 2(7); see also H.R. 1585, 110^th Cong., § 1023(b)(7) (2007) (same).^[3]

Like the current 18 U.S.C. § 245, proposed section 249(a)(1) of title 18 would not be limited by its terms to violence involving racial discrimination: It would criminalize violence committed "because of the actual or perceived race, color, religion, or national origin of any person." S. 909 explains (§ 2(8)) that "in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments."

As we have previously concluded, under existing case law the proscription of violence motivated by "religion" and "national origin" would constitute a valid exercise of Congress's Thirteenth Amendment authority insofar as "the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the Thirteenth Amendment." Senate Report at 17-18; see also Saint Francis College v. Al-Khazraji, 481 U.S. 604, 610-613 (1987) (holding that the prohibition of race discrimination in 42 U.S.C. § 1981, a Reconstruction-era statute that was enacted pursuant to, and contemporaneously with, the Thirteenth Amendment, extends to discrimination against Arabs, as Congress intended to protect "identifiable classes of persons who are subjected to intentional discrimination solely [ 3] because of their ancestry or ethnic characteristics"); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987) (holding that Jews can state a claim under 42 U.S.C. § 1982, another antidiscrimination statute enacted pursuant to, and contemporaneously with, the Thirteenth Amendment, because Jews "were among the peoples [at the time the statutes were adopted] considered to be distinct races"); Hodges v. United States, 203 U.S. 1, 17 (1906) ("Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon, are as much within its compass as slavery or involuntary servitude of the African."); United States v. Nelson, 277 F.3d 164, 176-78 (2d Cir. 2002) (concluding that 18 U.S.C. § 245 could be applied constitutionally to protect Jews against crimes based on their religion, because Jews were considered a "race" when the Thirteenth Amendment was adopted). While it is true that the institution of slavery in the United States, the abolition of which was the primary impetus for the Thirteenth Amendment, primarily involved the subjugation of African Americans, it is well-established by Supreme Court precedent that Congress's authority to abolish the badges and incidents of slavery extends "to legislation] in regard to 'every race and individual.'" McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18 (1976) (quoting Hodges, 203 U.S. at 16-17).^[4]

Although "there is strong precedent to support the conclusion that the Thirteenth Amendment extends its protections to religions directly, and thus to members of the Jewish religion, without the detour through historically changing conceptions of 'race, '" id. at 179, it remains an open question whether and to what extent the Thirteenth Amendment empowers Congress to address forms of discrimination short of slavery and involuntary servitude with respect to religions and national origins that were not considered "races" in 1865. Accordingly, to the extent violence is directed at victims on the basis of a religion or national origin that was not regarded as a "race" at the time the Thirteenth Amendment was ratified, prosecutors may choose to bring actions under the Commerce Clause provision of S. 909, i.e., proposed 18 U.S.C. § 249(a)(2), if they can prove the elements of such an offense. See Senate Report at 15.

Proposed section 249(a)(1) differs from the current 18 U.S.C. § 245 in that it would not require the government to prove that the defendant committed the violence because the victim was or had been "participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof."^[5] The outer limits of the [ 4] expansive list of specified activities in section 245 have not been conclusively defined, but courts have concluded that the section protects, inter alia, drinking beer in a public park (see United States v. Allen, 341 F.3d 870 (9th Cir. 2003)), and walking on a city street (see Nelson). Although it is not clear that Congress included the activities element of section 245 in order to justify an exercise of its Thirteenth Amendment enforcement powers, ^[6] the courts have held that section 245 is proper Thirteenth Amendment legislation. See, e.g., Nelson; Allen.

The Supreme Court's decisions in Jones v. AlfredH. Mayer Co., 392 U.S. 409 (1968), and Griffin v Breckenridge, 403 U.S. 88 (1971), support the further judgment that the Thirteenth Amendment does not require such a federal-activities element. In Jones, the Court upheld section 1 of the Civil Rights Act of 1866 (now 42 U.S.C. § 1982) as a valid exercise of Congress's Thirteenth Amendment enforcement authority. The statute in Jones was limited to discriminatory interferences with the rights to make contracts and buy or sell property, but the Court did not rest its approval on that limitation. ...