Invidious Deliberation: The Problem of Congressional Bias in Federal Hate Crime Legislation

69 Pages Posted: 7 Nov 2013

See all articles by Sara Rankin

Sara Rankin

Seattle University School of Law

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Date Written: November 5, 2013


The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The Article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection.

To illustrate the point, this Article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking protection under federal hate crime legislation. The review concludes that Congress exhibited greater resistance to constructing animus against gays, lesbians, and the homeless as morally or legally wrong, especially in comparison to the other covered groups. Invidious Deliberation argues this Congressional resistance is not attributable to an equitable, principled deliberation process; instead, it is an expression of “unrecognized” bias against unpopular groups. To mitigate the impact of Congressional bias, this Article proposes that Congress explicitly and consistently use a set of principled criteria — such as suspect classification factors — to assess candidate groups.

Keywords: suspect class, sexual orientation, race, religion, discrimination, bias, legislation, legislative, Congressional, constitutional law, policy, homeless, homelessness, gender, gender identity, transgender, lesbian, gay

Suggested Citation

Rankin, Sara, Invidious Deliberation: The Problem of Congressional Bias in Federal Hate Crime Legislation (November 5, 2013). Rutgers Law Review, Forthcoming, Available at SSRN:

Sara Rankin (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States

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