You have singled out instances where you maintain that the crime has added significance because religion or some other aspect was a motivation. However, the extreme cruelty and heinous acts of the defendants in the Elizabeth Smart case do not fall under your approach and heightened treatment of “hate crimes.” Fortunately, justice in that case does not hinge on whether it fits within a list of special classifications of victims and whether a certain element of “hate” is present. Our criminal statutes include the most grotesque and offensive acts and apply escalating degrees and enhancements at every level of culpability. We do not need to create special groups of crime victims and make “sexual orientation” a separate defining characteristic. That is both unnecessary and part of a broader agenda with known consequences in other areas of the law. At the same time, all crimes against such persons and all persons are covered together equally and not separately under the law.

Utah’s law is not “neutered” as you suggest. It provides the desired basis for penalty enhancements but does not invent new rights. It upholds and protects the recognized and established constitutional rights of all citizens and takes into account the potential affect on the community as a whole. The Legislature debated and considered the alternatives that you suggested and I believe made a wise and well reasoned decision. Thank you for your comments on this issue.

Second, the judicial review as explained in this post is so over-simplified it is inaccurate. As Adam Winkler explained in the 2006 Vanderbilt Law Review, even though religious discrimination is theoretically subject to strict scrutiny, the SCOTUS has upheld religious discrimination 60% of the time that it has applied the test. See Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts” . Vanderbilt Law Review, Vol. 59, p. 793, 2006.

On the flip side, tossing sexual orientation into rational basis doesn’t accurately describe how the SCOTUS has handled cases on the matter. See Romer v. Evans and Lawrence v. Texas, both cases which overturned laws and constitutions that discriminated based on sexual orientation, all while fitting under the “rational basis” umbrella.

Finally, all crimes are not the same. And the target and intent of the actor can play a big difference in its severity. For example, consider two teenage boys who commit vandalism. One spray paints his initials on the wall of a parking garage. The other spray paints a swastika on a synagogue. The swastika is much more serious, much more harmful, and in the state of Utah, no different under criminal law. THIS is the legacy of a one-of-a kind hate crimes law that 44 other states have been able to see for what it is: ineffective.