LONDON — The first effort in the nation to prosecute someone under a section of the federal hate-crimes law dealing with sexual orientation has survived a legal challenge in Eastern Kentucky.
U.S. District Judge Gregory F. Van Tatenhove upheld the law in a ruling filed late Monday. Van Tatenhove and attorneys spent Tuesday choosing a jury, seating a panel of 14 late in the day. Opening arguments and testimony are set to start Wednesday.
The men charged in the case are David Jason Jenkins and his cousin, Anthony Ray Jenkins. They allegedly beat a gay Letcher County man in April 2011 because of his sexual orientation.
A federal grand jury charged the two with conspiracy, kidnapping and committing an act of violence based on the victim's sexual orientation.
The charges were the first in the nation under a section of the federal hate-crimes law that makes it illegal to attack someone based on real or perceived sexual orientation.
Attorneys for the cousins had challenged the constitutionality of the hate-crime charge on a number of grounds, including that Congress overstepped its authority in trying to regulate the behavior outlined in the law.
That was a challenge under a part of the Constitution that gives the federal government the right to regulate interstate commerce.
Other challenges included that the law wrongly created a special class of victims, that the federal government should not have jurisdiction over the alleged crime, and that the law was too vague. Van Tatenhove rejected each challenge.
For the hate-crime law to be valid as Congress set it up, it must regulate activity that substantially affects interstate commerce, Van Tatenhove wrote. An attack based on sexual orientation has no impact on interstate economic activity, the judge wrote.
However, Jason and Anthony Jenkins allegedly used a pickup truck to take Kevin Pennington to the spot where the attack occurred, and they drove on U.S. 119, which crosses a state line. Congress and courts have defined vehicles and roads as instruments of interstate commerce.
Van Tatenhove said the question was whether an otherwise deficient law can achieve "constitutional salvation" through the jurisdictional hook that Congress included, by defining the use of instruments of interstate commerce as an element of the crime.
The answer is yes, Van Tatenhove said other courts have concluded.
He also said it would be hard to argue that the law furthers the purpose of limiting the commerce clause of the Constitution so that it does not wipe out the distinction of what is a national issue and what is a local issue.
If in-state, non-economic activity can be made into conduct the federal government can try to punish simply because a car and road were involved, the commerce clause "continues to cast a very large shadow," Van Tatenhove said.
Other pieces of the hate-crime law, such as the section barring attacks based on race, have withstood challenge as well, according to the ruling.
David Jason Jenkins, 37, of Cumberland, and Anthony Ray Jenkins, 20, of Partridge, have denied attacking Pennington because of anti-gay bias.
The two allegedly got Anthony Jenkins' wife, Alexis Leeann Jenkins, and his sister, Mable Ashley Jenkins, to lure Pennington from his home with the promise of taking him to get drugs, according to court documents.
Court records said the two men dressed in hooded shirts or jackets that they thought would conceal their identities, and they disabled the interior light in Anthony Jenkins' extended-cab Chevrolet Silverado pickup so Pennington wouldn't be able to recognize them when he got into the back seat with the women.
Pennington said he'd seen the two men attack a friend of his in 2009 and wouldn't have gotten in the truck if he had known they were inside, according to a court document.
Pennington said once he realized who the men were, he asked them to let him out of the truck, but they refused, and David Jason Jenkins threatened to violently rape him.
The two men allegedly took Pennington to a secluded spot in Kingdom Come State Park, dragged him from the truck and punched, kicked and stomped him.
Alexis Leeann Jenkins and Mable Jenkins allegedly urged on the attack, yelling, "Kill that faggot," according to a court document.
Pennington, who is in his late 20s, said he was able to run away during a brief lull in the attack.
He hid in the woods until the four stopped looking for him, then he made his way to the ranger station, breaking a window so he could use the phone to call 911.
Pennington said he suffered various injuries, including bruises over much of his body, a torn ligament in his shoulder, a closed-head injury and a torn ear.
Alexis and Mable Jenkins have pleaded guilty and could be witnesses for the government. They have not been sentenced.
Jason and Anthony Jenkins could face life in prison if convicted.
Bill Estep: (606) 678-4655. Twitter: @billestep1.