Constitutionality of the Matthew Shepard Hate Crimes Prevention Act ( 2009 )

Constitutionality of the Matthew Shepard
Hate Crimes Prevention Act
The prohibition in proposed section 249(a)(1) of S. 909, the Matthew Shepard Hate
Crimes Prevention Act—against willfully causing bodily injury to any person, or at-
tempting to cause bodily injury to any person through the use of fire, a firearm, a dan-
gerous weapon, or an explosive or incendiary device, “because of the actual or per-
ceived race, color, religion, or national origin of any person”—would be a permissible
exercise of Congress’s authority to enforce the Thirteenth Amendment, at least 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.
The prohibition in proposed section 249(a)(2) of S. 909 —against 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”—would be a permissible exercise of Congress’s
authority under the Commerce Clause, because it would require the government to
allege and prove beyond a reasonable doubt in each case that there is an explicit and
discrete connection between the proscribed conduct and interstate or foreign com-
merce.
June 16, 2009
MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
You have asked for our views on the constitutionality of a pending bill,
the Matthew Shepard Hate Crimes Prevention Act, S. 909, 111th Cong.
(as introduced in the Senate, Apr. 28, 2009). 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 bodi-
ly 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, reli-
gion, 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 re-
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Constitutionality of the Matthew Shepard Hate Crimes Prevention Act
quire the prosecutor to prove that the victim was or had been “participat-
ing 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 reli-
gion, national origin, gender, sexual orientation, gender identity or disa-
bility of any person,” S. 909, sec. 7(a), § 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, id. § 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 identi-
ty 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 re-
viewed 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 Edward Kennedy, United States Senate, from
Robert Raben, Assistant Attorney General, Office of Legislative Affairs,
Department of Justice (June 13, 2000); 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 110th 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 Carl Levin, Chairman, Senate Committee on Armed Services,
1 A new proposed section 249(a)(3) would make the same conduct unlawful if done
within the special maritime or territorial jurisdiction of the United States—a provision
that does not raise any serious questions with respect to Congress’s authority. See United
States v. Sharpnack, 355 U.S. 286, 288 (1958).
2 The principal material difference is that section 249(a)(2) of S. 909 encompasses
violence on the basis of a person’s real or perceived gender identity, something that the
2000 legislation did not address.
241
33 Op. O.L.C. 240 (2009)
from Michael B. Mukasey, Attorney General, at 6 (Nov. 13, 2007) (re-
garding section 1023 of H.R. 1585).
We have carefully reviewed the relevant legal materials and now con-
clude, as we did in 2000, that the legislation is constitutional. The Attor-
ney General concurs in this view.
I.
As we explained in 2000, see Senate Report at 16–18, we believe Con-
gress has authority under section 2 of the Thirteenth Amendment to pun-
ish 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, 110th 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 discrimina-
tion: It would criminalize violence committed “because of the actual or
perceived race, color, religion, or national origin of any person.” S. 909
explains 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.” Id. § 2(8).
As we have previously concluded, under existing case law the proscrip-
tion 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 na-
tional origins that would have been considered races at the time of the
3 Given our conclusion that Congress possesses authority to enact this provision under
the Thirteenth Amendment, we do not address whether Congress might also possess
sufficient authority under the Commerce Clause or the Fourteenth Amendment.
See United States v. Nelson, 277 F.3d 164, 174–75 & n.10 (2d Cir. 2002).
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Constitutionality of the Matthew Shepard Hate Crimes Prevention Act
adoption of the Thirteenth Amendment.” Senate Report at 17–18; see also
Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610–13 (1987) (holding
that the prohibition of race discrimination in 42 U.S.C. § 1981, a Recon-
struction-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 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 con-
temporaneously 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, pri-
marily involved the subjugation of African Americans, it is well estab-
lished by Supreme Court precedent that Congress’s authority to abolish
the badges and incidents of slavery extends “to legislat[ion] 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 histor-
ically changing conceptions of ‘race,’” Nelson, 277 F.3d 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
4 In McDonald, for example, the Supreme Court held that 42 U.S.C. § 1981, a Recon-
struction-era statute that was enacted pursuant to, and contemporaneously with, the
Thirteenth Amendment, prohibits racial discrimination in the making and enforcement of
contracts against all persons, including whites. 427 U.S. at 286–96.
243
33 Op. O.L.C. 240 (2009)
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 Com-
merce 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 expansive list of specified activities in section 245 have not
5 Section 245(b)(2) makes it a crime, “whether or not acting under color of law, by
force or threat of force willfully [to] injure[], intimidate[] or interfere[] with, or attempt[]
to injure, intimidate or interfere with . . . any person because of his race, color, religion or
national origin and because he is or has been—
“(A) enrolling in or attending any public school or public college;
“(B) participating in or enjoying any benefit, service, privilege, program, facility or
activity provided or administered by any State or subdivision thereof;
“(C) applying for or enjoying employment, or any perquisite thereof, by any private
employer or any agency of any State or subdivision thereof, or joining or using the
services or advantages of any labor organization, hiring hall, or employment agency;
“(D) serving, or attending upon any court of any State in connection with possible
service, as a grand or petit juror;
“(E) traveling in or using any facility of interstate commerce, or using any vehicle,
terminal, or facility of any common carrier by motor, rail, water, or air;
“(F) enjoying the goods, services, facilities, privileges, advantages, or accommoda-
tions of any inn, hotel, motel, or other establishment which provides lodging to tran-
sient guests, or of any restaurant, cafeteria, lunchroom, lunch counter, soda fountain,
or other facility which serves the public and which is principally engaged in selling
food or beverages for consumption on the premises, or of any gasoline station, or of
any motion picture house, theater, concert hall, sports arena, stadium, or any other
place of exhibition or entertainment which serves the public, or of any other estab-
lishment which serves the public and
“(i) which is located within the premises of any of the aforesaid establishments
or within the premises of which is physically located any of the aforesaid estab-
lishments, and
“(ii) which holds itself out as serving patrons of such establishments.”
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Constitutionality of the Matthew Shepard Hate Crimes Prevention Act
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, 277 F.3d 164). 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,
277 F.3d 164; Allen, 341 F.3d 870.
The Supreme Court’s decisions in Jones v. Alfred H. 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. Instead, the Court wrote, “[s]urely Congress has the
power under the Thirteenth Amendment rationally to determine what are
the badges and the incidents of slavery, and the authority to translate that
determination into effective legislation.” 392 U.S. at 440. Similarly, in
Griffin, the Court held that the Thirteenth Amendment supported applica-
tion of the Ku Klux Klan Act (now 42 U.S.C. § 1985) to a case of racially
motivated violence intended to deprive the victims of what the Court
called “the basic rights that the law secures to all free men,” 403 U.S. at
105—which in that case, according to the complaint, included the “right
to be secure in their person” and “their rights to travel the public high-
ways without restraint,” id. at 91–92. The Court again endorsed the broad
Jones formulation, which contains no interference-with-protected-
activities limitation: “Congress has the power under the Thirteenth
Amendment rationally to determine what are the badges and the incidents
of slavery, and the authority to translate that determination into effective
legislation.” Id. at 105. To be sure, “there exist indubitable connections
6 See Nelson, 277 F.3d at 191 n.26 (explaining that Congress included the “participat-
ing in or enjoying civil rights” requirement in section 245 for purposes of providing a
basis for the provision under the Fourteenth Amendment and possibly also the Fifteenth
Amendment).
245
33 Op. O.L.C. 240 (2009)
. . . between post Civil War efforts to return freed slaves to a subjugated
status and private violence directed at interfering with and discouraging
the freed slaves’ exercise of civil rights in public places.” Nelson, 277
F.3d at 190. But there are also such “indubitable connections” “between
slavery and private violence directed against despised and enslaved
groups” more generally. Id. 7 In light of these precedents, and consistent
with our conclusion in 2000, see Senate Report at 16–17, we think it
would be rational at the very least for Congress to find that “[s]lavery and
involuntary servitude were enforced . . . through widespread public and
private violence directed at persons because of their race” and that “elimi-
nating racially motivated violence is an important means of eliminating,
to the extent possible, the badges, incidents, and relics of slavery and
involuntary servitude,” S. 909, § 2(7), regardless of whether the perpetra-
tor in a particular case is attempting to deprive the victim of the use of the
activities covered by the current section 245.
We therefore conclude, as we did in 2000, that the prohibition of dis-
criminatory violence in proposed section 249(a)(1) would be a permissi-
ble exercise of Congress’s broad authority to enforce the Thirteenth
Amendment.
II.
Proposed section 249(a)(2) would be a proper exercise of Congress’s
authority under the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, be-
cause it would require the government to allege and prove beyond a
reasonable doubt in each case that there is an explicit and discrete connec-
tion between the proscribed conduct and interstate or foreign commerce.
7 As the Second Circuit noted in Nelson, the Supreme Court has limited the scope of
Congress’s enforcement authority under section 5 of the Fourteenth Amendment in a
series of recent cases. 277 F.3d at 185 n.20. But as that court also noted, these precedents
do not address the Thirteenth Amendment, which contemplates an inquiry that the Su-
preme Court has referred to as the “inherently legislative task of defining involuntary
servitude.” Id. (quoting United States v. Kozminski, 487 U.S. 931, 951 (1988)). The court
of appeals in Nelson further explained that “the task of defining ‘badges and incidents’ of
servitude is by necessity even more inherently legislative.” Id. Finally, we note that the
Thirteenth Amendment, unlike the Fourteenth Amendment, contains no state-action
requirement, a distinction of relevance in determining Congress’s authority to regulate
private, racially motivated violence. See Senate Report at 18.
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Constitutionality of the Matthew Shepard Hate Crimes Prevention Act
In particular, it would require that the offense have occurred “in any
circumstance described in [proposed 18 U.S.C. § 249(a)(2)(B)].” Those
enumerated circumstances are that:
(i) the conduct described in subparagraph (A) occurs during the
course of, or as the result of, the travel of the defendant or the vic-
tim—
(I) across a State line or national border; or
(II) using a channel, facility, or instrumentality of foreign
commerce;
(ii) the defendant uses a channel, facility, or instrumentality of in-
terstate or foreign commerce in connection with the conduct de-
scribed in subparagraph (A);
(iii) in connection with the conduct described in subparagraph
(A), the defendant employs a firearm, dangerous weapon, explosive
or incendiary device, or other weapon that has traveled in interstate
or foreign commerce; or
(iv) the conduct described in subparagraph (A)—
(I) interferes with commercial or other economic activity in
which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate commerce.
S. 909, sec. 7(a), § 249(a)(2)(B). As we explained in 2000, see Senate
Report at 18–23, requiring proof of at least one of these “jurisdictional”
elements would “ensure, through case-by-case inquiry, that the [offense]
in question affects interstate commerce.” United States v. Lopez, 514 U.S.
549, 561 (1995). Nothing in the law since 2000 calls this analysis into
question. 8
8 See, e.g., United States v. Dorsey, 418 F.3d 1038, 1045–46 (9th Cir. 2005) (uphold-
ing 18 U.S.C. § 922(q)(2)(A), which makes it a crime “knowingly to possess a firearm
that has moved in or that otherwise affects interstate or foreign commerce at a place the
individual knows, or has reasonable cause to believe, is a school zone”); United States v.
Capozzi, 347 F.3d 327, 335–36 (1st Cir. 2003) (upholding the Hobbs Act, 18 U.S.C.
§ 1951(a), which makes it a federal crime to commit or attempt to commit extortion that
“in any way or degree, obstructs, delays or affects [interstate] commerce”).
247
33 Op. O.L.C. 240 (2009)
III.
For these reasons we adhere to our 2000 conclusion that the new crimi-
nal offenses created in S. 909 would be wholly constitutional.
MARTIN S. LEDERMAN
Deputy Assistant Attorney General
Office of Legal Counsel
248