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Hate Crimes and Equality

The Washington Post has just published a very ironic editorial supporting the federal hate crimes bill ("Protection from Hate," May 14). Its editorial is at odds with both its past editorials opposing hate crimes laws and the concept of equality under the law. In 1992, the Post argued that all hate-crimes laws violate the First Amendment by criminalizing biased thoughts, in the course of criticizing a Wisconsin hate-crimes law that the U.S. Supreme Court later upheld in 1993. In 2000, the Post praised the Supreme Court's decision in U.S. v. Morrison. The Morrison decision struck down a federal law that allowed people to sue over gender-based hate crimes in federal court, ruling that the law exceeded Congress's power under the Commerce Clause and the Fourteenth Amendment. The Post's editorial admits that it still opposes laws banning hate crimes based on disability and gender, which are covered by the federal hate crimes bill. But it says that it supports the bill as a whole because it would add sexual orientation as a "protected class" under federal law. Funny, I wasn't aware that the constitutional limits on Congress's power disappear when it passes laws that bestow "protected class" status on an additional minority group. Apparently, the Post's editors believe that (to paraphrase George Orwell) all people are equal, but some are more equal than others. Second Amendment scholar Clayton Cramer discusses the blatant inconsistency of the bill's supporters at his blog, focusing on the Washington Post and the ACLU. How the federal hate-crimes bill would undermine civil liberties and constitutional federalism safeguards is discussed in my prior posts here, here, and here.