President Obama, with members of the Shepard and Byrd families, sharing some remarks about signing the Hate Crimes Prevention Act into law.

Today was exhilarating, in every sense possible.

I am, however, proud to report that the reason for the absence of any reporting here on the Hate Crimes Prevention Act becoming law is that my analysis has been published at Atlantic Online.

It’s titled, “The Legacy of a Legacy,” and I urge you to check it out.

Invited guests get pictures of the President and Shepard and Byrd families as they take to the stage at the White House before President Obama gave remarks regarding the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act becoming law.

It’s an exciting time for me, back in D.C. right as the Hate Crimes Prevention Act is about to be signed into law and as the District of Columbia debates marriage equality.

I am here on the prowl for an exciting new job opportunity, but part of that strategy is — of course — my work here at Law Dork.  I’m going to be applying for things and meeting with people about job possibilities, but also want to make sure that I continue to provide the legal and policy coverage here at Law Dork as developments occur.

And for D.C. folks, I look forward to meeting you in the coming weeks!

According to the Senate calendar, today could be the day the Senate passes the Defense Department Appropriations Reauthorization Conference Report.  The bill, passed on Oct. 8 by the House, includes the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.  I earlier discussed the specifics of the hate crimes measure, as agreed to in the Conference Report, here.

Following a period for morning business after it convenes at 9:30 a.m., the Senate will resume consideration of the Conference Report.

[UPDATE: Cloture has been successfully invoked, per The Hill, meaning that a vote on the Conference Report is forthcoming following a limited period of debate.  The vote for cloture was 64-35, with Senator Hatch not voting.  The only Democrat to vote against cloture was Sen. Russ Feingold.  Republican Sens. Collins, Lugar, Murkowski, Snowe and Voinovich voted for cloture.

It is important to note that Feingold's position against the war is such that he could have had other reasons to oppose the Conference Report than the hate crimes measure.]

[FURTHER UPDATE: The Senate voted on final passage of the Conference Report beginning at 4:40 p.m.  It passed on a 68-29 vote, which was announced by Ohio Sen. Sherrod Brown, who was presiding.  Sen. Russ Feingold is the only Democrat to vote no.  Republican Sens. Bond, Collins, Cornyn, Ensign, Gregg, Hutchison, Lugar, McCain, Snowe and Voinovich voted yes.  Sens. Byrd, Hatch and Murkowski did not vote.  The Defense Department Appropriations Reauthorization bill, with the Hate Crimes Prevention Act included, now goes to President Obama for signature.]

Fifteen Democrats voted down the report.  They were Reps. Baird, Boren, Bright, Conyers, Davis (TN), Filner, Griffith, Jackson (IL), Kucinich, McIntyre, Michaud, Peterson, Shuler, Stark and Welch.  Forty-four Republicans voted for the report.  Reasons for voting up or down on this report were complicated, between support for or opposition to the defense budget and support for or opposition to the hate crimes provision.  [To compare, here is the roll call vote for the stand-alone Hate Crimes Prevention Act.  Members like Rep. Kucinich, among others, clearly support the hate crimes provision but do not support the Defense Department budget.  As such, the stand-alone vote is more telling of a member's support for the hate crimes provision.]

Notably, the American Civil Liberties Union, in a statement from ALCU Director of Public Education Paul Cates, did not oppose the conference report version of the hate crimes provision.  From Cates:

We aren’t terribly impressed with the new first amendment language because it doesn’t do anything more than say that the government can’t violate the First Amendment, which it can’t do anyway.  We are, however, very pleased that the death penalty has been taken out of the bill.  While we still have some reservations about speech, we don’t oppose the bill.

According to Human Rights Campaign Legislative Director Allison Herwitt, per Kerry Eleveld, the Senate is expected to take up and pass the report next week.

Judy Shepard, the mother of Matthew Shepard, with President Obama. (Image by Pete Souza/White House.)

On the 11th anniversary of the day Matthew Shepard was found, beaten and left for dead, the Conference Report for the Defense Department Appropriations Reauthorization was released on Wednesday afternoon containing the bill named in his honor. A PDF can be downloaded at this Web site.

On page 1471 of the PDF (1350 of the bill), the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act can be found. What this means is that the Reauthorization coming back to each chamber of Congress will include the hate crimes provision and, assuming the chambers’ passage of the bill, the Hate Crimes Prevention Act will be heading to President Barack Obama in short order for signing.

First of all, Stars and Stripes confirms that the F-22 funding, removed by the Senate, was not put back in the bill in Conference.  So, that eliminates that hurdle, which I earlier discussed here.

As to the actual Hate Crimes Prevention Act language, the death penalty language, added by Sen. Jeff Sessions, is gone (a move that very much pleases me personally).  On page 1483 (1361 of the bill), the penalties lay out a maximum of life imprisonment for the most severe types of hate-motivated crimes. They are when:

• death results from the offense.
• the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

The bill provides for no greater penalties.  The other two provisions added by Senator Sessions, however, do remain in the bill.  The first requires that the Attorney General “establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person.”  Groups supporting passage of the hate crimes bill opposed this amendment because they saw it as adding a redundant step to the process for implementing the law.  The second is the “Prohibition on attacks on United States servicemen on account of service,” which was opposed due to concerns about redundancy and vagueness.

As to the First Amendment concerns raised by the ACLU — and discussed here — about the Senate version because it simply stated that the bill does not impact First Amendment protections, it appears that the Conference Committee tried to find a compromise.  In Sec. 4710 of the Conference Report (at page 1366 of the bill), the “Rule of Construction” lays out a meld of both the House and Senate language.  It includes a portion about admission of evidence that is closer to the House version than the Senate version:

Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.

It goes on to state:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to: (A) plan or prepare for an act of physical violence; or (B) incite an imminent act of physical violence against another.

Then, in case the point was not yet made clear, three more provisions, present in the Senate version, reinforce this point:

FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

This appears to me to take a controversial issue — the perceived potential impact of hate crimes penalty enhancement provisions on protected speech and other expressive activity — and provide as much reassurance in as many ways as proposed to strongly reinforce that the aim of the legislation is not to impact that protected activity.  Whether it will be enough to meet with the desires of the ACLU remains to be seen.

[FOLLOW-UP: Comment from the ACLU, as well as the House vote, can be found here.]

Solidarity protests took place throughout Israel today. Here's Joseph Dana's photo from Jerusalem.

More than twenty-four hours have passed since I first was reading information about and covering the shooting deaths at the LGBT Tel Aviv Community Center.  The pictures that we have seen since are both horrifying, from the ambulances and bloodied victims, and uplifting, from the vigils and demonstrations.

Now, comes word from Haaretz of the eulogies and the stories of Nir Katz, 26, and Liz Trobishi, 16, who were killed in the shooting rampage.  The gunman remains at large.

Nir was one of the counselors of the group, helping those at the time in their young lives where they most needed an open heart and a safe space.  From Haaretz:

[Nir's] sister, Chen, who had lived with him for the last seven months, arrived with a gay pride flag, which she placed on his grave at the end of the funeral.

“I am carrying this flag because we don’t need to lift it up but rather to fly it and to show what hate without purpose can lead to,” she eulogized, adding that “the struggle started here and we will extract it at its roots…because everybody is equal and it doesn’t matter what their leaning is.”

Nir’s mother Ayala also delivered a eulogy, telling mourners that her son would not have believed such an attack could occur.

“Nir always had endless love for every living creature…always with respect for every form of life and a lot of respect for those around him,” she said. “With all the love-giving, someone who opposed this path ended his life.”

A photo from the rally in Tel Aviv today, care of Maital Rozenboim.

The second victim, Liz, appears to have been an ally, another big heart helping provide comfort to her LGBT friends. Again, from Haaretz:

Trobishi’s friends said she participated regularly in activities held by the gay youth organization Igy, even though she herself was not a lesbian.

“Although I am not a part of the Igy community I really love being with them,” the 16-year-old wrote on the youth organization’s online forum a few months ago. “I connected with a lot of people, met a lot of nice people and am not sorry for any moment,” she added.

According to her friends, whenever somebody would announce online that they had come out of the closet, Trobishi would post a message of support on the forum.

Nir and Liz, eulogized today, were shot to death for helping what amounted to a youth LGBT support group.  This is sickening, and my heart goes out to their families and friends and all of the LGBT community and their allies in Israel who are facing this tragedy today.

As politicians respond and as folks living in Israel consider what’s next, these young people — and the lives they lived — stand perhaps as the strongest message of the powers that oppose hate.

[The photos come from two of the people covering this story on Twitter: Dana and Rozenboim.]

[UPDATE: NYC Council Speaker Christine Quinn has out a statement today.  Thank you, Speaker Quinn.]

[ALSO: Thanks to Andrew for the link and for covering this story.]

Rescue personnel treating a victim of the shooting at a gay club in Tel Aviv on Saturday night. (Image from Haaretz.)

[UPDATE: Haaretz has updated its story to state that "[a] gunman shot dead two people and wounded at least thirteen others” — not the three it earlier reported.]

From Haaretz:

A black-clad gunman shot dead two people and wounded at least thirteen others in an attack at a central Tel Aviv gay club on Saturday night. The gunman then fled the scene.

Israel Police said that the incident at the Ha’agudah club, on Nahmani Street, did not have a terror motive. The two victims were initially identified as a man and a woman.

At least eight people were wounded in the club, a police spokesman said. Channel 10 television said a police manhunt for the gunman was underway in the city. The channel also said that the police have closed all the gay clubs in Tel Aviv.

Ha’agudah is not a club in the bar sense; it is a gay community center.  This has been pointed out by Joseph Dana on Twitter and is confirmed on this (admittedly simple) Web site.  It notes that the Tel Aviv Community Center for “The Agudah,” which is the “Association of Gay Men, Lesbians, Bisexuals and Transgender in Israel,” is located on Nachmani Street.

Dana says “youths were sitting in the basement of a #lgbt community center. gunman entered and opened fire on everyone.”  BreakingNews confirms:

The shooting occurred at a gay and lesbian center where youth get together every Saturday night. At the end of the evening, a gunman dressed in black walked into the center and opened fire.

Haaretz’s “Flash News” also notes that “M[ember of] K[nesset] Horowitz: T.A. shooting is worst attack ever on gay community in Israel.”

The Ynet News story is horrible to read:

One eyewitness to the shooting said, “The place looked like a slaughterhouse.” Another witness said the shooter had worn a mask. Civilians were warned to stay away from the area.

Eyal Amit, a member of the GLBT organization, told Ynet that many of the teens who met at the clubhouse had not yet informed their loved ones of their sexual orientation. “It’s a very sensitive situation. What we know is that in order to get here one must come here especially. This was not some random shooting,” he said.

This is horrid.

[UPDATE: AFP reports that "[t]he assailant then tried to attack a nearby gay bar but was blocked by guards, witnesses said.”

Crushing words from Maital Rozenboim at IsraLeft:

A 17 years old girl and a 24 years old man are the first two victims, while details are still missing as to the third. The man was a counselor for this group – a man whose job was to speak to these youngsters, assist them with their troubles dealing with their sexual orientation. His job was to help them find order in their world, find themselves, whichever self that may be.

This story has just made me sick.  My thoughts go out to the LGBT people of Tel Aviv tonight.]

[FURTHER UPDATE:

A demonstration and vigil was held in the aftermath of a deadly shooting in Tel Aviv. (Image from Ynetnews.)

Good to see, at least, that the LGBT people of Tel Aviv and their allies took to the streets immediately after the shooting to demonstrate:

Thousands of LGBT (lesbian, gay, bisexual and transgendered) Israelis have held an impromptu march through the streets of Tel Aviv after a masked gun man opened fire at a centre for gay teenagers, killing three late last night.

. . . .

Protestors held home made banners, rainbow flags and just simply marched with their friends in an act of defiance against the gun man.

Others lit candles in honour of the three teenagers who are now known to have died.

The power of community at terrifying times like this can be an amazing element of strength.

More from Ynetnews:

The marchers held gay community flags and signs reading “All together – without hatred and fear” and “Love – don’t kill”.

Revital, one of the participants, told Ynet, “The feeling is terrifying. We live in a bubble, believing that everything is fine. This is an act of pure unfounded hatred, which leads to the murder of children for being gays and lesbians. It’s very sad knowing that it’s still so.” ]

There is a lot of info out there right now about the hate crimes bill, known as the Matthew Shepard Act.  I didn’t want to just pile on and post the same thing as everyone else, but what I thought could be helpful is an unpacking of, as Doug Berman would say, all the “there” that’s there.  There are five main issues being discussed with the hate crimes bill:

1. The House hate crimes bill and the conference committee.
2. The F-22 funding in the Defense Department reauthorization bill.
3. The death penalty amendment, as well as the other Sessions amendments, added to the Senate’s Matthew Shepard Act amendment.
4. The ACLU’s speech/association concerns with the Senate language.
5. The Thune gun amendment possibility to the DOD reauthorization.

First, let’s remove almost all the specifics and talk about process.  Assuming that the Senate approves a Defense reauthorization bill, which it eventually will, the House and Senate will appoint conferees to join a conference committee that will hash out differences of the bill.

As such, the House’s stand-alone version of hate crimes, voted on in April, will not, technically speaking, be on the table.  As a source familiar with the process said, the fact that the House passed the stand-alone bill will be great leverage to include the hate crimes measure in the conference committee’s version of the bill.  But the House version is not the starting point for hate crimes measure in the conference committee; the Senate version is the only hate crimes measure that officially is included in the conference committee’s competing bills.  Of course, conferees are free to do a lot to the legislation during the process of reconciling the House and Senate versions of the Defense reauthorization, so a lot can happen.

Now, as to the specifics.

One of the biggest hurdles faced by the hate crimes bill — the F-22 funding — was cut on a 58-40 vote from the Senate version of the bill today.  As Kerry Eleveld points out, though, we’re not yet completely out of the weeds on this point, because there is a Statement of Administration Policy (SAP) that recommends a veto if even the lesser amount — $369 million of funding for the F-22 program — included in the House version makes it into the final bill.  In today’s briefing, Kerry updates the world that any such funding in the final bill will result in a presidential veto.  As such, it’s all gotta go in conference, or Obama’s spokesman says he’ll veto it.

Next is the death penalty provision.  The LGBT organizations, as I noted last night, appear to believe that there is a good chance the conference committee will remove the death penalty language and other Sessions amendments from the bill.  The fact that the committee that heard the bill in the House specifically voted down such a death penalty amendment is sure to help in getting at least that proposal removed.  The overwhelming Democratic majority of the conference committee also bodes well for the removal of these “poison pill” amendments.

The ACLU and HRC are having a bit of sparring over the association/speech protections in the Senate version of the bill.  The Senate version simply states that the bill does not impact First Amendment protections.  As the ACLU pointed out, though, the House version contains a specific provision preventing evidence solely relating to exercise of speech and associational rights.  Chris Anders, the ACLU’s senior legislative counsel, said in a release:

Unless amended to block evidence of speech and association not specifically related to a crime, the Senate hate crimes amendment could chill constitutionally protected speech and association. . . . We urge Congress to instead adopt the House version of the hate crimes bill, which protects both civil rights and free speech and association.

David Smith, HRC’s vice president of programs, said, “The Senate bill contains an explicit provision stating that the bill does not limit constitutionally protected speech, expressive conduct, or activities” and that each version of the bill protects free speech but in different ways.  This distinction, between an evidentiary exclusionary rule, as in the House version, or the restatement of First Amendment protections, as in the Senate version, will likely be dependent on the specifics of which members are chosen for the conference committee.  If I had it to choose, I would choose the House version for the simple reason that my general aim is to provide for compromises that increase legislative support whenever they do not diminish the value of the legislation in any significant way.

The final hurdle is the gun amendment being offered by Sen. Thune, which “would allow gun owners to supersede state and local laws restricting their transportation.”  Democrats in the Senate are fighting the amendment, but it’s not quite clear whether they even have the support of Senate Majority Leader Harry Reid.  As in the case of the Sessions amendments, it appears that the aim, should it be passed, is for this amendment to be removed in conference committee.

The bottom line is, of course, that legislation is one hell of a sausage-making process.  Although the hate crimes bill is not out of the woods, it is likely to make it through.  There will be a Defense reauthorization bill, passed by both houses and signed by the President — even should it, though it seems unlikely, go through a veto.  The strong Senate vote to include hate crimes in that bill, when coupled with the House’s stand-alone vote in favor, strongly counsel in favor of the hate crimes measure making it through as a part of that bill, regardless of whatever sausage-making difficulties remain.

All that said, be on the lookout for announcement of conferees and action steps, from groups and bloggers all around, to be taken in that regard.