Invidious Deliberation: The Problem of Congressional Bias in Federal Hate Crime Legislation
65 Pages Posted: 22 Sep 2014 Last revised: 9 Apr 2015
Date Written: 2014
Through the enactment of federal hate crime laws, Congress decides which groups are most vulnerable to bias-motivated violence, and which groups are worthy of statutory protection against such crimes. This Article contends that such Congressional decisions - specifically the selection of which groups are entitled to protection under federal hate crime legislation - discriminate against the very groups that are most vulnerable to bias.
This Article analyzes evidence of bias in over two decades of Congressional deliberations concerning the Hate Crime Statistics Act (the HCSA), which functions as a “gateway” for groups seeking protection under federal hate crime legislation. The Article reviews Congressional decisions relating to eight groups: the seven currently covered groups - race, religion, ethnicity, sexual orientation, disability, gender, and gender identity - and the only candidate group to receive a Congressional hearing that has not yet been admitted to the HCSA: the homeless. The review observes 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. This Congressional resistance is not attributable to an equitable, principled deliberation process; instead, it is an expression of Congress’s own “unrecognized” bias against unpopular groups. As a result, Congressional bias may exclude the most vulnerable groups from hate crime protection. To address this problem, Congress should explicitly and consistently use a set of principled criteria in its assessments of HCSA candidate groups. This Article proposes certain suspect classification factors as one example of such criteria. If Congress used such principled criteria, it could mitigate the ironic presence of Congressional bias in anti-bias legislation.
Keywords: legislation, legislative advocacy, hate crimes, discrimination, prejudice, bias, congress, decisionmaking, homeless, LGBTQ, race, religion, disability, politics
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