NASHVILLE, Ind. – Indiana now has a hate crimes law.
How credible the law Gov. Eric Holcomb signed on Wednesday will be determined by the courts at some future date.
In signing the law, Holcomb explained, “Our goal was to achieve a comprehensive law that protects those who are the targets of bias crimes, and we have accomplished just that. We have made progress and taken a strong stand against targeted violence. I am confident our judges will increase punishment for those who commit crimes motivated by bias under this law.”
But this came after weeks of muddled messaging. Holcomb signaled late last year that a law with a list of the potentially afflicted was one of his top priorities. He was moved by the defiling of a Carmel synagogue last summer. He vowed to be vocal. Many of us believed that this popular governor wouldn’t hesitate to use his ample political capital to achieve a high priority goal.
From a practical and legal standpoint, should Johnny Himmler spray paint “Heil Hitler” on a synagogue or defile a home with a rainbow flag on the porch and a car with an equality sticker in the driveway, judges have the ability today to sentence while considering the aggravating circumstances at hand. Speaker Brian Bosma believed that to be the case before this session ever began, but Holcomb changed the equation.
Earlier this General Assembly session, Senate Republicans stripped out the "list" after a clandestine caucus debate. Last week House Republicans came up with a compromise forged behind closed doors and with little public input that Bosma called “a great solution” which would protect all.
On the eve of Senate concurrence, the governor explained, “The No. 1 priority for me is to make sure that when we adjourn from this legislative session, that all 6.6 million-plus Hoosiers are protected, and from what I’ve seen (this version) would do it.” But, he added that he will continue push for gender and gender identity in an explicit list. “I don’t want to go back, I want to go forward,” Holcomb said Monday. “And this will be a tremendous step in the right direction.”
So his vow to continue to push for the list reinforced doubt that all would be covered.
In the eyes of Gov. Holcomb and his commerce officials hoping to attract companies who recruit LGBT employees, this was (and is) about fostering a promising business environment. In the eyes of many in the Republican super majorities, Senate Bill 12 and then the final version Senate Bill 198 were (and are) about semantics ... about political correctness. And still to others, about “special protections” for classes of people they’d rather not think about and really aren’t interested in protecting.
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These super majorities obscure other important things, like the influence of the Intolerance Wing of the Republican Party which, in the concealment provided by internal caucus debate, resisted what dozens of other states have done with hate crime laws, which is to explicitly list the afflicted classes. They carried the day; the “family advocacy” groups still wield outsized influence within the GOP. Speaker Bosma and Senate President Pro Tem Rod Bray acquiesced in the name of internal order and fear of primary politics.
Courage could be saved for another day.
The day Holcomb signed the law, former Indiana Supreme Court Justice Frank Sullivan Jr. said in a letter to the governor that SB198 "qualifies as a hate crime law that is legally sufficient and can be used by trial courts across Indiana to impose harsher sentences."
Sullivan, who was appointed to the Supreme Court by Democratic Gov. Evan Bayh and is now a professor at the Indiana University School of Law in Indianapolis, said the "language of the bill is clear that acts of bias that are specifically referred to are not exclusive: Gender and gender identity, as well as age, citizenship, marital status, etc. are authorized to be used as an aggravating circumstance in determining a sentence every bit as much as race or religion or sexual identity. Just because a characteristic or trait is not specifically listed does not prevent it from being used to impose a harsher sentence."
So, perhaps, the governor's initial error was the declare an expectation for a specific list.
But State Sen. Ron Alting, the Lafayette Republican who sponsored the original SB12 and ended up voting against SB198, said on the Senate floor, “I say to everybody, it’s got to be everyone in it or I cannot support.” He added that the final verdict will come from the courts, judges and prosecutors. “Time will tell,” Alting said. “We won’t know for awhile.”
His SB12 co-author, Sen. Mike Bohaceck, R-Michiana Shores, voted for the measure.
So what we have here is a governor who promised to be "vocal" about signing legislation that included the "list," then decided to work internally on a compromise as opposed to barnstorming the state, drumming up support.
As we've seen with dozens of other laws passed by the General Assembly and signed by governors, the legal and constitutional veracity often doesn't withstand the scrutiny of the courts. So on this hate crime law, the ultimate verdict will come in the future.