Constitutional and Public Policy Issues

Abstract

Two critical Supreme Court cases decided in the early 1990s set forth a plethora of constitutional and policy issues that plague the application of contemporary hate crime statutes. In RAV v The City of St Paul Minnesota, the Court struck down the city ordinance that it deemed a violation of the principle of content neutrality. However, a year later, the Court in Wisconsin v Mitchell upheld the Wisconsin penalty enhancement discriminatory selection statue because it proscribed discriminatory conduct. The Wisconsin Court distinguished the statute in RAV that proscribed disfavored expression from the Wisconsin statute that proscribed disfavored conduct. These cases were decided on 1st and 14th amendment grounds that the statutes were content biased (RAV) and permissible as a compelling governmental objective as the court ruled against the petitioner’s 14th amendment due process challenge (Mitchell). However, constitutional scholars and opponents of hate crime statutes continue to challenge the efficacy of hate crime statutes on 1st and 14th amendment grounds and argue a series of unintended consequences undermine the statutes and polarize groups against one another.