Effective or symbolic? Testing the constitutionality of the Matthew Shepard and James Byrd Hate Crimes Prevention Act

Abstract

In an effort to reduce violent acts of discrimination against members of the lesbian, gay, bisexual and transgender community, President Obama signed the Matthew Shepard and James Byrd Hate Crimes Prevention Act into law on 28 October 2009. The Act has been both praised and criticized for expanding the list of protected classes of hate crime victims to include sexual orientation, gender, gender identity and disability. Indeed, the Act was passed after a heated debate regarding its constitutionality. This paper therefore explores whether this Act would be able to withstand a constitutional challenge. Rulings by the US Supreme Court are analyzed to evaluate the validity of claims articulated during the hearings as well as testimony given in the debates leading to the passage of the Act. The analysis also relies on other cases and current hate crime state statutes. Findings suggest that because the Act does not define certain key terms, it might not pass a constitutionality test on the basis of the vagueness doctrine.