Constitutionality of the Matthew Shepard Hate Crimes Prevention Act

The prohibition in proposed section 249(a)(1) of S. 909, the Matthew Shepard Hate Crimes Prevention Act—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived race, color, religion, or national origin of any person”—would be a permissible exercise of Congress’s authority to enforce the Thirteenth Amendment, at least insofar as the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the Thirteenth Amendment.

The prohibition in proposed section 249(a)(2) of S. 909—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person”—would be a permissible exercise of Congress’s authority under the Commerce Clause, because it would require the government to allege and prove beyond a reasonable doubt in each case that there is an explicit and discrete connection between the proscribed conduct and interstate or foreign commerce.