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Efforts to broaden the reach of hate-crime legislation stalled in 1999 as lawmakers in most states and at the federal level balked at extending protection to those victimized on the basis of their sexual orientation, gender, or disability. In the same year, the U.S. Supreme Court agreed to hear two cases that may erode the reach of existing hate-crime legislation.

Today, 40 states have hate-crime statutes. The statutes typically cover race, religion, or ethnicity, but many do not apply to crimes based on sexual orientation, gender, or disability. Of the 40 laws, only 22 address hate crimes based on sexual orientation; just 18 include gender; and only 22 address disability.

Despite the brutal anti-gay murders of Matthew Shepard and Billy Jack Gaither, all the 1999 attempts to include sexual orientation in state hate-crime bills failed save one. While 26 states considered hate-crime bills that would have added sexual orientation as a protected category, Missouri was the only state to adopt it.

Notably, both Wyoming and Alabama — the states where the murders of Shepard and Gaither occurred — failed to pass hate-crime bills including sexual orientation.

Politics and the Law
In a political climate that is probably typical of many states, the North Carolina legislature considered and rejected the Matthew Shepard Memorial Act, a bill that would have extended the North Carolina hate-crime law to cover sexual orientation.

According to M.K. Cullen of Equality North Carolina, even state Democrats did not want to support the Act "because they feared it could be used against them.

"Their support for the Act could cause them to lose the next election, and that could affect their ability to influence the redistricting to be done after the 2000 census."

Bills including gender also fared poorly. Of the 18 states to consider hate-crime measures that included gender, only two states — California and Missouri — passed bills into law. According to Jackie Payne of the now Legal Defense and Education Fund, gender is a sticking point because "people fear that cases will flood the courts."

Hate-crime legislation covering disability also failed to achieve much success. Disability does not evoke the antagonistic response that sexual orientation and gender do, and many view crimes against the disabled as "crimes of opportunity" that do not warrant special hate-crime legislation, according to disabilities advocates.

Of the 19 states to consider hate-crime bills that included disability, only two states — again, California and Missouri — enacted legislation.

Those close to the political scene in California credited that state's passage of an expanded hate-crime penalty enhancement law to the fact that a sympathetic Democratic governor, Gray Davis, had replaced Republican Pete Wilson, who had threatened to veto the bill.

Missouri State Sen. William Clay, sponsor of Missouri's broad hate-crime legislation, said he was "committed to getting the bill passed and made that clear." He saw lobbying efforts, as well as the support of the governor, as key factors in the bill's passage.

"The gay and lesbian community, as well as advocates for the rights of women and the disabled, made a hard case for the bill and were vital to its success," Clay said.

Attempts to expand hate-crime legislation also were defeated at the federal level. To the disappointment of many advocates, Congress considered but failed to pass the Hate Crime Prevention Act of 1999 (HCPA), a law that would have added sexual orientation, gender, and disability to existing federal hate-crime law.

Sen. Trent Lott's press secretary stated that "every crime is a hate crime" and Congress should not legislate that "someone's murder or abuse is more important than someone else's" — a rationale that, taken to its natural conclusion, would eliminate the need for almost every hate-crime law already on the books.

Two Key Cases
The two hate-crime cases that were accepted by the Supreme Court in 1999 are Brzonkala v. Morrison, 169 F.3d 820 (4th Cir.), cert. granted, 120 S. Ct. 11 (1999), and Apprendi v. New Jersey, 731 A.2d 485, cert. granted, 120 S. Ct. 525 (1999).

In Brzonkala, a federal statute, the Violence Against Women Act, came under attack in Virginia. Passed in 1994, the Act creates a private right of action for victims of gender-motivated violence. The plaintiff claimed that the defendants violated the Act when they allegedly gang-raped her.

Citing recent Supreme Court cases that have restricted Congress' authority to legislate in areas traditionally left to the states, the Court of Appeals for the Fourth Circuit eventually ruled that Congress did not have the authority to pass the Act under either the Commerce Clause or Section 5 of the Fourteenth Amendment of the Constitution.

The Supreme Court heard arguments in Brzonkala in January and is expected to render a decision by June. Whether the Fourth Circuit's decision is upheld or overturned, the case surely will affect future congressional efforts to implement federal hate-crime legislation.

New Jersey's hate-crime statute is challenged in Apprendi. The statute permits a judge to give an enhanced penalty if the prosecutor proves by a preponderance of the evidence that the defendant's act was motivated by the victim's race, color, gender, handicap, religion, sexual orientation or ethnicity. N.J.S.A. § 2C:44-3(e).

The defendant, a white male, allegedly shot at the plaintiff's house, the only African American household in the neighborhood.

The defendant claimed that the victim's race played no role in his conduct, but the judge decided otherwise. The defendant challenged the judge's decision by arguing that the motive in committing a crime should be considered by a jury rather than by a judge.

He also argued that the evidence proving motive should have to satisfy the stricter reasonable doubt standard rather than the preponderance of the evidence standard currently in use. The New Jersey Supreme Court held the statute constitutional.

The Supreme Court is expected to decide Apprendi this year. The decision is likely to impact the structure of future hate-crime legislation.