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Nos. 99-5 and 99-29
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.
CHRISTY BRZONKALA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
MARK B. STERN
ALISA B. KLEIN
ANNE MURPHY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether 42 U.S.C. 13981, the provision of the Violence Against Women
Act that creates a private right of action for victims of gender-motivated
violence, is a valid exercise of Congress's power under the Commerce Clause
of the Constitution.
2. Whether 42 U.S.C. 13981 is a valid exercise of Congress's power under
the Enforcement Clause of the Fourteenth Amendment to the Constitution.
PARTIES TO THE PROCEEDING
Petitioner is the United States of America, which intervened in the district
court to defend the constitutionality of 42 U.S.C. 13981. Christy Brzonkala
was the plaintiff in the district court and an appellant in the court of
appeals; she is also a petitioner in this Court.
Respondents are Antonio J. Morrison and James L. Crawford. The Virginia
Polytechnic Institute and State University, Cornell D. Brown, and William
E. Landsidle, in his capacity as Comptroller of the Commonwealth of Virginia,
were defendants/appellees below.
In the Supreme Court of the United States
No. 99-5
UNITED STATES OF AMERICA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.
No. 99-29
CHRISTY BRZONKALA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals sitting en banc (Pet. App. 1a-281a)
is reported at 169 F.3d 820. The earlier opinion of a panel of that court
(Pet. App. 282a-349a) is reported at 132 F.3d 949. The opinion of the district
court (Pet. App. 350a-403a) is reported at 935 F. Supp. 779.
JURISDICTION
The judgment of the court of appeals was entered on March 5, 1999. On May
25, 1999, the Chief Justice extended the time within which to file a petition
for a writ of certiorari to and including June 30, 1999. The petition was
filed on June 25, 1999, and granted on September 28, 1999. The jurisdiction
of this Court rests on 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
1. The Commerce Clause of the United States Constitution, Article I, Section
8, Clause 3, provides: "The Congress shall have Power * * * To regulate
Commerce * * * among the several States."
2. The Equal Protection Clause of Section 1 of the Fourteenth Amendment
provides that no State shall "deny to any person within its jurisdiction
the equal protection of the laws." Section 5 of the Fourteenth Amendment
provides that "[t]he Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."
3. The civil rights provision of the Violence Against Women Act, 42 U.S.C.
13981, is reproduced in an appendix to this brief (App., infra, 1a-3a).
STATEMENT
This case presents a constitutional challenge to 42 U.S.C. 13981, the provision
of the Violence Against Women Act of 1994 that gives victims of gender-motivated
violence a private right of action against their assailants. Section 13981
enables victims to obtain compensation for the lost earnings, medical expenses,
and other pecuniary and non-pecuniary losses associated with gender-motivated
violence and to obtain other appropriate relief.
Between 1990 and 1994, Congress conducted extensive hearings that revealed
that gender-motivated violence is an overwhelming national problem, which
substantially affects interstate commerce by impeding the travel, employment,
and other economic activities of its victims and potential victims. Congress
also found that pervasive bias in the state criminal and civil justice systems
has exacerbated the problem and, indeed, has denied victims of gender-motivated
violence the equal protection of the laws. Congress therefore concluded
that the creation of a private right of action for victims of gender-motivated
violence was an appropriate exercise of its authority under the Commerce
Clause and the Enforcement Clause of the Fourteenth Amendment. A divided
Court of Appeals for the Fourth Circuit held otherwise.
1. Congress enacted the Violence Against Women Act to address "the
escalating problem of violence against women." S. Rep. No. 138, 103d
Cong., 1st Sess. 37 (1993) (1993 S. Rep.). Congress chose to address that
problem through "several different complementary strategies,"
including new federal crimes, a new federal civil remedy, and new federal
grant programs. S. Rep. No. 197, 102d Cong., 1st Sess. 34 (1991) (1991 S.
Rep.). The crimes created by the statute punish certain types of interstate
domestic violence. See 18 U.S.C. 2261, 2262 (1994 & Supp. III 1997).1
The grant programs authorized $1.6 billion in federal spending over six
years to support state, local, and tribal efforts to reduce violence against
women, including rape prevention and education programs, law-enforcement
efforts, victim services programs, battered women's shelters, and improved
security in public transit. See, e.g., 42 U.S.C. 300w-10, 3796gg, 3796hh,
10409(a), 13931.
Congress considered one of the "[m]ost important[]" components
of the Violence Against Women Act to be its civil rights provision, Section
13981, which gives victims of gender-motivated violence a federal cause
of action against its perpetrators. 1993 S. Rep. 38. As Congress explained,
Section 13981 "makes a national commitment to condemn crimes motivated
by gender in just the same way that we have made a national commitment to
condemn crimes motivated by race or religion." S. Rep. No. 545, 101st
Cong., 2d Sess. 41 (1990) (1990 S. Rep.).
Section 13981(b) declares that "[a]ll persons within the United States
shall have the right to be free from crimes of violence motivated by gender."
Section 13981(c), in turn, provides:
A person * * * who commits a crime of violence motivated by gender and thus
deprives another of the right declared in subsection (b) of this section
[to be free from gender-motivated violence] shall be liable to the party
injured, in an action for the recovery of compensatory and punitive damages,
injunctive and declaratory relief, and such other relief as a court may
deem appropriate.
Section 13981(d) defines a "crime of violence motivated by gender"
that could give rise to such a cause of action. A "crime of violence"
is defined as "an act or series of acts that would constitute a felony
against the person" (or a felony against property if the conduct poses
"a serious risk of physical injury" to a person) under federal
or state law and that would satisfy the definition of a "crime of violence"
in 18 U.S.C. 16, "whether or not those acts have actually resulted
in criminal charges, prosecution, or conviction. 42 U.S.C. 13981(d)(2).2
Such a crime is "motivated by gender" if it was committed "because
of gender or on the basis of gender, and due, at least in part, to an animus
based on the victim's gender." 42 U.S.C. 13981(d)(1).
Section 13981(a) expressly invokes two sources of Congress's constitutional
authority to create a federal cause of action for victims of gender-motivated
violence: the Commerce Clause and Section 5 of the Fourteenth Amendment.
2. In the Conference Report adopted in connection with the Violence Against
Women Act, Congress explained why its commerce power extends to the regulation
of gender-motivated violence:
[C]rimes of violence motivated by gender have a substantial adverse effect
on interstate commerce, by deterring potential victims from traveling interstate,
from engaging in employment in interstate business, and from transacting
with business, and in places involved, in interstate commerce; crimes of
violence motivated by gender have a substantial adverse effect on interstate
commerce by diminishing national productivity increasing medical and other
costs, and decreasing the supply of and the demand for interstate products.
H.R. Conf. Rep. No. 711, 103d Cong., 2d Sess. 385 (1994) (Conf. Rep.).
Congress reached that conclusion after four years of extensive investigation
and consideration of the problem of gender-motivated violence. In a series
of committee hearings between 1990 and 1994, Congress heard testimony from
a variety of experts: state attorneys general, federal and state law-enforcement
officials, business and labor representatives, physicians, mental-health
professionals, legal scholars, and victims of gender-motivated violence.
The evidence presented at those hearings demonstrated to Congress that gender-motivated
violence is pervasive, has a substantial effect on interstate commerce,
and often goes unremedied because of widespread bias in state justice systems.
a. Congress's extensive fact-finding revealed that violence against women
is a problem of the first magnitude and of national scope. For example, the evidence showed:
1 "Violent attacks by men now tops the list of dangers to an American
woman's health. Every 15 seconds, a woman is battered and, every 6 minutes,
a woman is raped in the United States." 1991 S. Rep. 36.
l "Every week, during 1991, more than 2,000 women were raped and more
than 90 women were murdered-9 out of 10 by men." 1993 S. Rep. 38.
l "An estimated 4 million American women are battered each year by
their husbands or partners. Approximately 95% of all domestic violence victims
are women." H.R. Rep. No. 395, 103d Cong., 1st Sess. 26 (1993) (1993
H. Rep.).
l "Three out of four American women will be victims of violent crimes
sometime during their life." Id. at 25.3
b. The evidence amassed by Congress also demonstrated that violence against
women has a substantial impact on interstate commerce. As the 1993 Senate
Report explained, "[g]ender-based violence bars its most likely targets-
women-from full [participation] in the national economy," by impeding
their ability to work, to travel, and to engage in other economic activity.
1993 S. Rep. 54.
Congress was informed that "violent crime against women costs this
country at least 3 billion * * * dollars a year." 1990 S. Rep. 33 (citing
"partial estimates" of those costs). A significant portion of
those costs was attributed to the impact of gender-motivated violence on
victims' participation and performance in the workforce. Among victims of
rape, for example, "almost 50 percent * * * lose their jobs or are
forced to quit in the aftermath of the crime." 1993 S. Rep. 54. Even
those who remain employed after the rape may experience a prolonged period
of decreased productivity. 1990 S. Rep. 33. Domestic violence likewise "takes
its toll in employee absenteeism and sick time for women who either cannot
leave their homes or are afraid to show the physical effects of the violence."
Id. at 37; see Women and Violence: Hearings Before the Senate Comm. on the
Judiciary, 101st Cong., 2d Sess., Pt. I, at 58 (1990) (1990 S. Jud. Hearings)
(noting that the costs of employee absenteeism due to domestic violence
may reach $3 billion to $5 billion a year).4
Congress was also informed that "[e]ven the fear of gender-based violence
affects the economy because it deters women from taking jobs in certain
areas or at certain hours that pose a significant risk of such violence."
1993 S. Rep. 54. For example, "women often refuse higher-paying night
jobs in the service/retail industries because of the fear of attack."
Id. at 54 n.70. Unfortunately, "[t]hose fears are justified."
Ibid. (noting that for women, but not for men, the leading cause of death
on the job is homicide). For similar reasons, many women refrain from using
public transportation, shopping, or going to the movies, particularly after
dark. 1991 S. Rep. 38; 1990 S. Jud. Hearings 109.
c. Congress found that the problem of gender-motivated violence was exacerbated
by pervasive bias in state justice systems, including bias among police
officers, prosecutors, judges, juries, and court employees. The Conference
Report concluded that "bias and discrimination in the [state] criminal
justice system often deprive[] victims of crimes of violence motivated by
gender of equal protection of the laws and the redress to which they are
entitled." Conf. Rep. 385.
In reaching that conclusion, Congress relied, in part, on the reports compiled
by some 20 state task forces on gender bias. The 1991 Senate Report noted
that "[s]tudy after study commissioned by the highest courts of the
States- from Florida to New York, California to New Jersey, Nevada to Minnesota-has
concluded that crimes disproportionately affecting women are often treated
less seriously than comparable crimes against men." 1991 S. Rep. 43;
see also id. at 43 n.40; 1993 S. Rep. 45 n.29, 49 n.52 (citing 20 such studies
conducted between 1984 and 1991). The Senate Report found that "[c]ollectively
these reports provide overwhelming evidence that gender bias permeates the
court system and that women are most often its victims." 1991 S. Rep.
43-44 (quoting Lynn H. Schafran, Overwhelming Evidence: Reports on Gender
Bias In the Courts, Trial, Feb. 1990, at 28); see also 1993 S. Rep. 49 ("[w]omen
often face barriers of law, of practice, and of prejudice not suffered by
other victims of discrimination").
For example, the Illinois task force found that there was "a continuing
suspicion of the credibility of sexual assault victims on the part of police,
prosecutors, judges, and juries." Illinois Task Force on Gender Bias
in the Courts, Gender Bias in the Courts 16 (1990). Accordingly, "[a]lthough
rape is rarely committed before eyewitnesses and is often not reported immediately,
prosecutors and investigators seek corroboration, including evidence of
a 'prompt complaint.'" Ibid. (noting that sexual assault victims, unlike
victims of other crimes, had been required by police and prosecutors to
take polygraph tests). The Texas task force similarly found that "[w]omen
sexual-assault victims are accorded less credibility by the judicial system
than victims of other types of assaults." Texas Gender Bias Task Force,
Final Report 5 (1994). Women frequently confront the assumption that they
invited or precipitated a sexual assault. See, e,g., 1991 S. Rep. 34 (describing
how a Vermont probation officer questioned whether a 9-year-old girl was
a "true victim" of sexual assault because he had heard that she
was a "tramp") (quoting Vermont Supreme Court & Vermont Bar
Ass'n, Report of the Vermont Task Force on Gender Bias in the Legal System
140 (1991)). Such assumptions are particularly prevalent in cases of acquaintance
rape, which police regularly decline to investigate and prosecutors regularly
decline to prosecute. Id. at 47-48. As a result, "a rape survivor may
have as little as a 5-percent chance of having her rapist convicted."
1991 S. Rep. 44.
The state task force reports similarly demonstrated to Congress that "[g]ender
bias contributes to the judicial system's failure to afford the protection
of the law to victims of domestic violence." 1993 S. Rep. 46. In California,
for example, the state task force found that "police officers, district
and city attorneys, court personnel, mediators, and judges-the justice system-treated
the victims of domestic violence as though their complaints were trivial,
exaggerated or somehow their own fault." Ibid. (quoting Administrative
Office of the Judicial Council of the Courts of California, Achieving Equal
Justice for Women and Men in the Courts 5 (1993)); see also 1991 S. Rep.
34 (quoting a California judge as stating that a domestic violence victim
in his court "probably should have been hit"). In Georgia, a state
judge was reported to have "mocked," "humiliated," and
"ridiculed" a domestic violence victim who was later killed by
her estranged husband. 1991 S. Rep. 34 (quoting Supreme Court of Georgia,
Report on Gender and Justice in the Judicial System 235 (1991)). And in
Maryland, a state judge refused to believe a woman's complaint that her
husband had threatened to kill her with his gun "because I don't believe
that anything like this could happen to me." Ibid. (quoting Maryland
Spec. Jt. Comm., Gender Bias in the Courts 2-3 (1989)). The record before
Congress demonstrated that such deeply ingrained attitudes often cause police,
prosecutors, judges, and other court personnel to treat domestic violence
less severely than other sorts of violence. See, e.g., 1993 S. Rep. 41 ("In
cases where a comparable assault by a stranger on the street would lead
to a lengthy jail [term], a similar assault by a spouse will result neither
in arrest nor in prosecution.").
Congress was also informed that state civil remedies for victims of sexual
assault and domestic violence often have significant flaws. The 1993 Senate
Report noted, for example, that "in many States rape survivors * *
* may be forced to expose their private lives and intimate conduct to win
a damage award; and * * * in some cases, they may be barred from suit altogether
by tort immunity doctrines or marital exemptions." 1993 S. Rep. 55.
Accordingly, while sexual assault and domestic violence victims may, "[i]n
theory," have certain civil remedies at their disposal, "[i]n
practice, few are able to use those remedies." 1991 S. Rep. 44. Indeed,
the 1991 Senate Report noted that "[l]ess than 1 percent of all victims
have collected damages" against their assailants-a statistic that "belie[s]
claims that State laws provide 'adequate' remedies for the victims of these
crimes." Ibid.
Congress concluded, based on its evaluation of the extensive legislative
record, that gender-motivated violence poses a national problem demanding
a national response. The state attorneys general concurred: "Our experience
as Attorneys General strengthens our belief that the problem of violence
against women is a national one, requiring federal attention, federal leadership,
and federal funds." Crimes of Violence Motivated by Gender: Hearing
Before the Subcomm. on Civil and Constitutional Rights of the House Comm.
on the Judiciary, 103d Cong., 1st Sess. 35 (1993) (1993 H. Jud. Hearing).5
Congress determined that the private right of action provided by Section
13981, together with the other provisions of the Violence Against Women
Act, was an appropriate response to that national problem. As the 1993 Senate
Report explained, Section 13981's declaration that "[a]ll persons within
the United States shall have the right to be free from crimes of violence
motivated by gender" would make clear to all Americans-including those
in the justice system-that crimes motivated by gender bias are "to
be considered as serious as crimes motivated by religious, racial, or political
bias." 1993 S. Rep. 38. Moreover, the private right of action in Section
13981 was particularly important because it would "allow survivors
an opportunity for legal vindication that the survivor, not the State, controls."
1990 S. Rep. 42.
3. In September 1994, at the time of the events at issue in this case, petitioner
Christy Brzonkala was an incoming freshman at Virginia Polytechnic Institute
(Virginia Tech). Respondents Antonio Morrison and James Crawford were students
at Virginia Tech and members of its football team. Pet. App. 7a-8a, 211a;
J.A. 14-15.
Brzonkala alleges that 30 minutes after she met Morrison and Crawford in
the dormitory where she resided, the two men pinned her down on a bed and
took turns forcibly raping her. Afterwards, Morrison allegedly told Brzonkala,
"You better not have any f***ing diseases." Subsequently, Morrison
allegedly announced publicly in the dormitory's dining hall that "I
like to get girls drunk and f*** the s*** out of them." Pet. App. 8a,
211a; J.A. 15-18.
Brzonkala alleges that she became depressed and withdrawn after the assault.
She ceased attending classes, attempted suicide, and required psychiatric
treatment. She ultimately withdrew from school. Pet. App. 212a-213a; J.A.
17-18.
4. In December 1995, Brzonkala brought this action against Morrison and
Crawford, invoking Section 13981. Morrison and Crawford moved to dismiss,
arguing that Congress lacked constitutional authority to enact Section 13981
and that Brzonkala failed to state a claim under that statute. The United
States intervened to defend the constitutionality of Section 13981. Pet.
App. 8a-9a.
The district court granted the motion to dismiss. The court held that Brzonkala
had stated a claim under Section 13981 at least against Morrison, and that
the constitutional question was therefore presented for decision. Pet. App.
361a-362a. The court then concluded that Congress lacked the constitutional
authority to enact Section 13981.
The court held that Section 13981 was not a proper exercise of Congress's
power under the Commerce Clause. Pet. App. 369a-382a. The court perceived
the statute as not meaningfully distinguishable from the statute struck
down in United States v. Lopez, 514 U.S. 549 (1995), notwithstanding that
here, unlike in Lopez, Congress made specific findings regarding the connection
between the regulated conduct and interstate commerce. Pet. App. 371a.
The court also held that Section 13981 was not a proper exercise of Congress's
power to enforce the Fourteenth Amendment. The court recognized that "[s]ome
possibility exists that at least part of the states' differential treatment
of gender-based violent crimes against women is due to gender discrimination,
and so correcting the differential treatment arising out of gender discrimination
is a legitimate Fourteenth Amendment concern." Pet. App. 399a. But
the court concluded that "no reasonable possibility exists that [Section
13981] will help remedy this legitimate Fourteenth Amendment concern,"
because the statute "is tailored to remedy conduct other than the conduct
giving rise to the equal protection concern." Id. at 399a-400a.
5. A divided panel of the Fourth Circuit reversed. Pet. App. 282a-349a.
The court held that Section 13981 was a valid exercise of Congress's power
under the Commerce Clause, id. at 310a-340a, and thus did not reach the
Fourteenth Amendment question. Judge Luttig dissented. Id. at 340a-349a.
6. On rehearing en banc, a divided court of appeals affirmed the judgment
of the district court, holding that Congress did not have the power to enact
Section 13981 under either the Commerce Clause or Section 5 of the Fourteenth
Amendment. Pet. App. 1a-281a.
a. Addressing the Commerce Clause question, the court of appeals acknowledged
that "[t]he legislative record in this case, considered as a whole,
shows that violence against women is a sobering problem and also that such
violence ultimately does take a toll on the national economy." Pet.
App. 68a. The court likewise recognized that "Congress' specific findings
regarding the relationship between gender-motivated violence and interstate
commerce * * * depict the manner in which such violence affects interstate
commerce." Ibid.
The court nonetheless concluded that Section 13981 could not be sustained
under Congress's power to regulate activities substantially affecting interstate
commerce. The court understood Lopez to hold that Congress cannot regulate
an activity that substantially affects interstate commerce unless (1) the
regulated activity is itself an economic one or (2) the statute includes
a jurisdictional element requiring a case-by-case inquiry into the nexus
to interstate commerce. Pet. App. 15a-31a. Because Section 13981 "neither
regulates an economic activity nor includes a jurisdictional element,"
the court concluded that "it cannot be upheld on the authority of Lopez
or any other Supreme Court holding demarcating the outer limits of Congress'
power under the substantially affects test." Id. at 31a.
Alternatively, the court held that Section 13981 could not be sustained
under the commerce power "[e]ven if these two categories of permissible
congressional regulations demarcate not the absolute, but only the presumptive
outer limits of congressional power under the substantially affects test."
Pet. App. 31a. Noting the Lopez Court's admonition that the commerce power
cannot be construed in a manner that would "effectually obliterate
the distinction between what is national and what is local and create a
completely centralized government," id. at 33a (quoting Lopez, 514
U.S. at 557), the court concluded that Section 13981 presents the same federalism
concerns as did the statute in Lopez. Id. at 31a-51a. In the court's view,
Section 13981 could not be upheld without endorsing an unlimited view of
the commerce power that would permit Congress to "assume control over
the entire field of violent crime, or, for that matter, all crime within
all of the States." Id. at 89a.
b. The court of appeals also held that Section 13981 could not be sustained
as legislation enforcing the Fourteenth Amendment, i.e., legislation remedying
bias in state civil and criminal justice systems against victims of gender-motivated
violence. The court reasoned that Section 13981 "is invalid, regardless
of whether its end is to remedy unconstitutional state action, for the simple
reason that it regulates purely private conduct and is not limited to individual
cases in which the state has violated the plaintiff's Fourteenth Amendment
rights." Pet. App. 125a-126a. The court stated that its conclusion
was compelled by United States v. Harris, 106 U.S. 629 (1883), and the Civil
Rights Cases, 109 U.S. 3 (1883). Pet. App. 104a-126a.
The court also held that Section 13981 did not satisfy the requirement articulated
in City of Boerne v. Flores, 521 U.S. 507, 520 (1997), of "congruence
and proportionality between the [constitutional] injury to be prevented
or remedied and the means adopted to that end." First, the court expressed
doubt that the legislative record revealed constitutional violations to
be remedied. Pet. App. 153a-160a. Although the court acknowledged that the
record "does establish that the States enforce and apply certain laws
in a manner that may ultimately prevent the victims of gender-motivated
violence from obtaining vindication through the criminal or civil systems,"
the court questioned whether such conduct amounted to "purposeful discrimination
against women in the enforcement of facially neutral laws that could give
rise to an equal protection violation." Id. at 153a. Second, the court
concluded that Section 13981 was so out of proportion to the constitutional
violations that it sought to remedy that it could not be regarded as an
effort to enforce the Fourteenth Amendment. Id. at 160a-163a.6
c. Judge Motz, writing for the four dissenting judges, concluded that Section
13981 was a valid exercise of Cogress's power under the Commerce Clause.
Pet. App. 224a-281a. The dissent concluded that Congress had the requisite
rational basis, as reflected in the "detailed and extensive" legislative
findings and testimony, id. at 229a, to determine that "gender-based
violence substantially affects interstate commerce," id. at 237a. The
dissent found no support in Lopez for limiting Congress's commerce power
to statutes that regulate economic activities or contain a jurisdictional
element. Id. at 240a-247a.
The dissent also rejected the majority's conclusion that federalism concerns
undermined Section 13981, noting that Congress had "explicitly found
that the states refused or were unable to deal effectively with the problems
created by gender-based violence." Pet. App. 232a. Thus, the dissent
explained, Section 13981 "provides a necessary national remedy for
a severe problem that the states have, by their own admission, been unable
to address effectively." Id. at 278a. The dissent therefore concluded
that Section 13981, in contrast to the statute in Lopez, did not "add[]
a redundant layer of federal regulation in an area where most states had
already acted," but instead "responded to the states' self-described
needs." Id. at 276a.
SUMMARY OF ARGUMENT
After four years of investigation, Congress determined that violence against
women is pervasive in modern American society to a degree that had previously
been unrecognized. Congress found that the problem has been exacerbated
by the States' failure to treat violent crimes that primarily victimize
women, such as rape and domestic abuse, as seriously as other violent crimes.
In addition, Congress found that the problem not only devastates the lives
of its victims, but also harms the national economy and interstate commerce
in many ways. Based on those findings, Congress exercised its powers under
the Commerce Clause and the Enforcement Clause of the Fourteenth Amendment
to enact Section 13981, a private right of action that enables victims of
gender-motivated violence to seek redress against their assailants. Congress
acted well within its constitutional authority in doing so.
1. Section 13981 is an appropriate exercise of Congress's power under the
Commerce Clause. Congress had far more than the rational basis that this
Court has required to conclude that gender-motivated violence substantially
affects interstate commerce. Congress found that gender-motivated violence
burdens the national economy and interstate commerce in several distinct
ways: by deterring women from seeking jobs, including jobs in interstate
businesses, that would require them to work at certain hours or in certain
places; by inhibiting women from traveling, interstate as well as intrastate,
and from engaging in other economic activity; by impeding victims' ability
to work at all, or to work productively, thereby forcing many into dependence,
poverty, and even homelessness; and by imposing increased medical and other
costs on victims, their employers and insurers, and state and local governments.
All of those burdens were documented in the extensive legislative record.
Congress reviewed that record with the understanding that the Commerce Clause
had long been regarded as an appropriate source of constitutional authority
to regulate activity that creates a barrier to the participation of particular
groups in the Nation's commerce. See, e.g., Katzenbach v. McClung, 379 U.S.
294 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
Contrary to the court of appeals' reasoning, Congress's commerce power is
not confined to the regulation of those intrastate activities that are "commercial"
or "economic" in nature. It is not the character of the activity,
but the substantiality of its impact on interstate commerce, that determines
whether the activity may be regulated under the Commerce Clause. As Justices
Kennedy and O'Connor suggested in their concurring opinion in United States
v. Lopez, 514 U.S. 549, 580 (1995), when Congress exercises its commerce
power where "neither the [regulated] actors nor their conduct has a
commercial character," the regulation might be sustained if it does
not "intrude upon an area of traditional state concern." Nor is
Section 13981 unconnected to economic activity. The gender-motivated violence
remedied by Section 13981 occurs at, or en route to, workplaces, retail
establishments, and interstate transportation terminals as well as in other
settings; in addition, Section 13981 is directed not only at gender-motivated
violence itself, but also at the inadequate state mechanisms for compensating
victims for its economic consequences.
Section 13981 does not, as the court of appeals suggested, present the federalism
concerns that were presented by the statute at issue in Lopez. First, Section
13981 is an exclusively civil remedy that enables victims of gender-motivated
violence to seek redress against their assailants-a remedy that supplements,
but does not supplant, any remedy that the victims may have under state
law. It does not intrude into the operations of state government, operate
against the States, or conscript the States or state officials in its enforcement.
Second, Section 13981 was intended as, and patterned after, federal civil
rights legislation. The vindication of civil rights has long been recognized
to be a paradigmatic national responsibility, not one that has been primarily
left to the States. Third, Congress enacted Section 13981 to address a problem
that, as the States acknowledged, their own justice systems had failed adequately
to address. A statute premised on such systemic state failures does not
presage an open-ended expansion of federal power into domains properly reserved
to the States. Finally, the Violence Against Women Act, of which Section
13981 is a part, is a prototypical example of cooperative federalism. It
contains a number of provisions designed to encourage and enhance the States'
own efforts to address gender-motivated violence. Section 13981, especially
when viewed in the context of the entire Act, poses no threat to federalism
principles.
2. Section 13981 is also an appropriate exercise of Congress's power under
Section 5 of the Fourteenth Amendment to remedy and deter violations of
the Equal Protection Clause. Congress, employing its unique institutional
ability to investigate and assess whether legislation is needed to enforce
constitutional guarantees, found that pervasive bias in the state justice
systems denies victims of gender-motivated violence the equal protection
of the laws. Congress based that determination on an extensive record documenting
that inaccurate stereotypes about gender-motivated violence and its victims-reflected
in state laws, state evidentiary rules, and, especially, the attitudes of
police, prosecutors, judges and other state actors-have caused violent crimes
motivated by gender animus to be treated less seriously than other violent
crimes. It is well-settled that state action based on inaccurate stereotypes,
including stereotypes relating to gender, may violate the Equal Protection
Clause. Congress was entitled to invoke its authority under Section 5 to
remedy such violations.
Section 13981 is a suitable remedy for the constitutional violations that
Congress identified. As Congress explained, Section 13981 gives victims
of gender-motivated violence "an opportunity for legal vindication,"
in either federal or state court, "that the [victim], not the State,
controls." 1990 S. Rep. 42. Section 13981 thus remedies and prevents
the discrimination that victims of gender-motivated crimes often face in
the state justice systems by giving them an alternative means of obtaining
legal redress. Congress's broad enforcement authority under Section 5 is
not limited, as the court of appeals believed, to the creation of remedies
against the States themselves. A remedy that permits victims of gender-motivated
violence to seek the vindication withheld by the States is a wholly permissible
means of effectuating the purposes of the Fourteenth Amendment.
Section 13981 is fully consistent with this Court's decisions addressing
the scope of Congress's power to enforce the Fourteenth Amendment. Section
13981 is unlike the statutes in this Court's Reconstruction-era decisions,
which were predicated on the assumption that private conduct may violate
the Equal Protection Clause. Those decisions do not bar Congress from reaching
the conduct of private persons, when Congress does so to remedy discrimination
by the State or its agents. Nor does Section 13981 suffer from the defects
that the Court perceived in City of Boerne v. Flores, 521 U.S. 507 (1997).
Section 13981, unlike the statute in that case, provides a remedy that is
congruent and proportional to the constitutional violations that Congress
identified. Section 13981 does not redefine the substantive prohibitions
of the Fourteenth Amendment. To the contrary, Section 13981 provides an
additional remedy for state action that Congress reasonably found would
violate equal protection under the standards announced by this Court. And,
in contrast to the situation in Flores, Section 13981 is an appropriately
limited remedy that does not intrude into the operations of state government.
ARGUMENT
I. SECTION 13981 IS A VALID EXERCISE OF CONGRESS'S POWER UNDER THE COMMERCE
CLAUSE
Congress rationally determined that gender-motivated violence imposes a
substantial burden on interstate commerce, impeding its victims' efforts
to work, travel, and engage in other economic activity. Section 13981 is
specifically designed to address the economic consequences of gender-motivated
violence by providing victims a means of recovering their lost earnings,
medical expenses, and other pecuniary and non-pecuniary losses. Section
13981, as a private civil remedy, does not interfere with the activities
of the States. Indeed, Section 13981 was adopted in response to Congress's
determination, concurred in by a substantial majority of state attorneys
general, that the problem of gender-motivated violence required a comprehensive
national solution. Section 13981 is thus a proper exercise of Congress's
power under the Commerce Clause.
A. Congress Rationally Found That Gender-Motivated Violence Imposes A Substantial
Burden On Interstate Commerce
1. This Court has repeatedly recognized that Congress's commerce power,
while not unlimited, is nonetheless "broad and sweeping." Katzenbach
v. McClung, 379 U.S. 294, 305 (1964); accord, e.g., Wickard v. Filburn,
317 U.S. 111, 127-128 (1942); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196
(1824); cf. United States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J.,
concurring) ("the Commerce Clause grants Congress extensive power and
ample discretion to determine its appropriate exercise"). "The
fundamental principle is that the power to regulate commerce is the power
to enact all appropriate legislation for its protection and advancement;
to adopt measures to promote its growth and insure its safety; to foster,
protect, control and restrain." NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 36-37 (1937) (internal quotation marks and citations
omitted).
It is thus well-settled that Congress's power over interstate commerce "is
not confined to the regulation of commerce among the States." United
States v. Darby, 312 U.S. 100, 118 (1942). Congress also may regulate "those
activities intrastate which so affect interstate commerce or the exercise
of the power of Congress over it as to make regulation of them appropriate
means to the attainment of a legitimate end, the exercise of the granted
power of Congress to regulate interstate commerce." Ibid.; accord,
e.g., Perez v. United States, 402 U.S. 146, 154 (1971); Heart of Atlanta
Motel v. United States, 379 U.S. 241, 258 (1964); Wickard, 317 U.S. at 125.7
The modern Court has consistently applied "the traditional rationality
standard of review" to assess whether a statute is a permissible exercise
of Congress's commerce power, "defer[ring] to a congressional finding
that a regulated activity affects interstate commerce 'if there is any rational
basis for such a finding.'" Preseault v. ICC, 494 U.S. 1, 17 (1990)
(quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.
264, 276 (1981)). The Court has thus explained that, "where we find
that the legislators, in light of the facts and testimony before them, have
a rational basis for finding a chosen regulatory scheme necessary to the
protection of commerce, our investigation is at an end." McClung, 379
U.S. at 303-304; see also Polish Alliance v. NLRB, 322 U.S. 643, 650 (1944)
(Frankfurter, J.) (whether activity sufficiently affects interstate commerce
requires "a practical judgment," the exercise of which "the
Constitution entrusts primarily and very largely to the Congress, subject
to the latter's control by the electorate"). While the Court in Lopez
identified a zone of "truly local" activity that is not subject
to regulation under the Commerce Clause, the Court adhered to the principle
that Congress's judgments in this area are entitled to deference. See Lopez,
514 U.S. at 557 (citing cases); see also id. at 568 (Kennedy, J., concurring)
(counseling "great restraint before the Court determines that the [Commerce]
Clause is insufficient to support an exercise of the national power").
2. Congress expressly invoked the Commerce Clause as a source of its constitutional
authority to enact Section 13981, stating that the private right of action
was designed, among other things, "to promote * * * activities affecting
interstate commerce." 42 U.S.C. 13981(a). The Conference Report on
Section 13981 sets forth Congress's findings that "crimes of violence
motivated by gender have a substantial adverse effect on interstate commerce"
in several specific respects. Conf. Rep. 385. Congress arrived at that conclusion
after four years of study, as reflected in the extensive hearings and committee
reports, which documented the economic impact of gender-motivated violence.
Congress reviewed that record with the understanding that the Commerce Clause
had long been regarded as an appropriate source of constitutional authority
to regulate forms of discrimination that impede the participation of particular
groups in the national economy. See, e.g., 1993 S. Rep. 54-55 & n.71
(concluding that "[t]here is no doubt that the Congress has the power
to create [Section 13981] under the Constitution's Commerce Clause"
based on "precisely the rationale on which the Supreme Court relied
in upholding the 1964 Civil Rights Act" in Heart of Atlanta Motel and
McClung).
The Conference Report, the committee reports, and the hearing records demonstrate
that Congress had far more than a rational basis to find that gender-motivated
violence imposes a substantial burden on interstate commerce by impeding
the participation of its victims, primarily women, in the national economy.
We focus here on five aspects of that burden.
First, Congress found that gender-motivated violence "diminish[es]
national productivity." Conf. Rep. 385. Victims of gender-motivated
violence are often unable to work, or to work productively, as a result
of their physical injuries and emotional distress. See Violence Against
Women- Victims of the System: Hearing Before the Senate Comm. on the Judiciary,
102d Cong., 1st Sess. 241 (1991) (1991 S. Jud. Hearing) (president of the
National Federation of Business and Professional Women notes that victims
of domestic violence "either forego employment opportunities available
or jeopardize their current employment by absenteeism and poor work performance").
Congress was informed that the cost of employee absenteeism due to domestic
violence alone has been estimated at between $3 billion and $5 billion annually.
1990 S. Jud. Hearings 58. A significant portion of those costs are borne
by employers engaged in interstate commerce.8
The record before Congress also demonstrated that rape, like domestic violence,
exacts a significant toll in the workplace. For example, "almost 50
percent of rape victims lose their jobs or are forced to quit because of
the crime's severity." 1991 S. Rep. 53. Even those who remain employed
after a rape or other crime of violence may experience a prolonged period
of decreased productivity. 1990 S. Rep. 33.
Second, Congress found that gender-motivated violence deters potential victims
"from engaging in employment in interstate business." Conf. Rep.
385. Congress was informed that women refrain from "taking jobs in
certain areas or at certain hours that pose a significant risk of such violence."
1993 S. Rep. 54. For example, "women often refuse higher-paying night
jobs in the service/retail industries because of the fear of attack."
Id. at 54 n.70. Such fears are well-founded. Ibid. (noting that homicide
is the leading cause of job-related death among women but not among men).9
Third, Congress found that gender-motivated violence "deter[s] potential
victims from traveling interstate." Conf. Rep. 385. For example, women
are reluctant to use public transportation, particularly after dark, because
of the fear of attack. 1991 S. Rep. 38 (noting that nearly 50% of the women
questioned in one survey stated that they did not use public transportation
alone after dark).10 The use of public transportation, even for relatively
short distances, may entail travel across state lines.11
Fourth, Congress found that gender-motivated violence deters victims and
potential victims from "transacting with business, and in places involved,
in interstate commerce," and thereby "decreas[es] the supply of
and the demand for interstate products." Conf. Rep. 385; see also 1993
S. Rep. 54 ("[g]ender-based crimes and the fear of gender-based crimes
* * * restrict[] consumer spending"). The record before Congress indicated
that "as many as 50 percent of homeless women and children are fleeing
domestic violence." 1990 S. Rep. 37. A woman in such reduced circumstances
is unable to purchase the products, including those that have moved in interstate
commerce, that she would otherwise purchase for herself and her children.12
Women also modify their spending behavior in order to avoid gender-motivated
violence. For example, of the women who participated in one survey that
was before Congress, three-quarters reported that they never go out alone
at night to see a movie because they fear rape and other violent crimes.
1991 S. Rep. 38.13 See also 1990 S. Jud. Hearings 109 (observing that women
in certain neighborhoods "can't walk down to the convenience store"
at certain hours because of the threat of violence).
Finally, Congress found that gender-motivated violence affects interstate
commerce by "increasing medical and other costs." Conf. Rep. 385.
The record before Congress contained estimates that "1 million wom[e]n
a year seek medical attention for injuries caused by violence at the hands
of a male partner." 1993 S. Rep. 41; see also 1990 S. Rep. 37 (noting
that "[a]s many as 20 percent of hospital emergency room cases are
related to wife battering"). The costs of that medical care have been
placed at more than $100 million a year-costs that are borne by the women
themselves, by employers and insurers, and by state and local governments.
1990 S. Jud. Hearings 58.14
3. The burden that Congress found to be imposed on interstate commerce by
gender-motivated violence is analogous, in three significant respects, to
the burden that Congress found to be imposed on interstate commerce by racial
discrimination in places of public accommodation. This Court held in McClung
and Heart of Atlanta Motel that such a burden is sufficient to justify congressional
action under the Commerce Clause.15
The Court reasoned that Congress could rationally have found that racial
discrimination by restaurants, as in McClung, and by hotels and motels,
as in Heart of Atlanta Motel, "obstructs interstate commerce"
by "discouraging travel on the part of a substantial portion of the
Negro community." McClung, 379 U.S. at 300; Heart of Atlanta Motel,
379 U.S. at 253. Similarly, here, Congress rationally found that gender-motivated
violence deters many women from traveling interstate. Conf. Rep. 385.
In addition, the Court reasoned in McClung that Congress could rationally
have found that racial discrimination caused blacks to spend less money
at restaurants, which, in turn, caused the restaurants to sell less food
and, consequently, to buy fewer goods from their out-of-state suppliers.
379 U.S. at 299-300. Similarly, here, Congress rationally found that gender-motivated
violence results in reduced spending by women on a variety of consumer products
that have moved, or the components of which have moved, in interstate commerce.
Conf. Rep. 385.
The Court finally reasoned in McClung that Congress could rationally have
found that racial discrimination in places of public accommodation burdened
interstate commerce in yet another way: It "deterred professional,
as well as skilled, people from moving into areas where such practices occurred
and thereby caused industry to be reluctant to establish there," 379
U.S. at 300, presumably out of concern about its ability to attract employees
and customers. Similarly, here, Congress rationally found that gender-motivated
violence deters women from "taking jobs in certain areas or at certain
hours" as well as from patronizing businesses in certain areas or at
certain hours. 1993 S. Rep. 54. And that could, as in McClung, affect businesses'
decisions concerning such matters as interstate relocation and expansion.
In sum, for many of same reasons this Court articulated in McClung and Heart
of Atlanta Motel, Congress "had a rational basis for finding that [gender-motivated
violence] had a direct and adverse effect on the free flow of interstate
commerce." McClung, 379 U.S. at 304. Section 13981, as a statute directed
at "the resolution of what the Congress found to be a national commercial
problem of the first magnitude," id. at 305, is thus an appropriate
exercise of the commerce power.
4. This Court's conclusion in Lopez that the Gun-Free School Zones Act of
1990 (GFSZA), Pub. L. No. 101-647, Title XVII, § 1702, 104 Stat. 4844,
did not possess the requisite nexus to interstate commerce does not suggest
the same conclusion with respect to Section 13981. Whereas the connection
between gun possession near schools and interstate commerce in Lopez was
both attenuated in fact and unarticulated by Congress, see 514 U.S. at 562,16
the connection between gender-motivated violence and interstate commerce
is both direct and expressly established in Congress's findings and the
supporting legislative record.
As the Court explained in Lopez, such congressional findings are particularly
significant where, as here, the connection between the regulated activity
and interstate commerce may not be "visible to the naked eye."
514 U.S. at 563. Indeed, the problem of gender-motivated violence, as well
as its impact on the national economy, has long been overlooked. See 1991
S. Rep. 38 (noting the "faulty statistical measures" of, and the
public blindness to, violent crimes against women). Women have often been
shamed into silence about rape, domestic abuse, and other violent crimes
-and the impact of such crimes upon their lives-because of the attitudes
of society generally and of the police, prosecutors, and court personnel
assigned to deal with such crimes. See, e.g., 1990 S. Rep. 33-34. Congress's
findings with respect to Section 13981 reveal both the extent of the underlying
problem and its substantial effect on interstate commerce.
Unlike in Lopez, then, the Court need not "pile inference on inference,"
514 U.S. at 567, in order to sustain Section 13981. To the contrary, in
order to invalidate Section 13981, the Court would have to set aside Congress's
express findings of a direct nexus between gender-motivated violence and
interstate commerce.
B. Congress May Regulate Activities That Have A Substantial Effect On Interstate
Commerce, Whether Or Not Those Activities Are "Commercial" In
Nature
The court of appeals concluded that, even if gender-motivated violence substantially
affects interstate commerce, Section 13981 cannot be sustained under the
Commerce Clause, for either of two alternative reasons. Neither one is correct.
First, the court read Lopez to permit Congress to regulate intrastate activities
that substantially affect commerce only if a further condition is satisfied:
either the activities themselves must be commercial in nature or the statute
must contain a jurisdictional element that requires proof of a nexus to
interstate commerce in each case. The court concluded that Section 13981
satisfied neither requirement. Pet. App. 15a-31a.17 The court's reasoning
reflects a fundamental misunderstanding of the commerce power and Lopez.
In Lopez, this Court observed that the GFSZA neither regulated a commercial
activity nor contained a jurisdictional element. Lopez, 514 U.S. at 551,
561-562. The Court did not treat those features as dispositive, however.
To the contrary, the Court reaffirmed that "[e]ven if [an] activity
be local and though it may not be regarded as commerce, it may still, whatever
its nature, be reached by Congress if it exerts a substantial effect on
interstate commerce." Id. at 556 (quoting Wickard, 317 U.S. at 125)
(emphasis added); see also id. at 559 ("the proper test requires an
analysis of whether the regulated activity 'substantially affects' interstate
commerce"). The Court then proceeded to evaluate, at some length, whether
the regulated activity in that case had the requisite effect on interstate
commerce. See id. at 562-568.
Nor did Justice Kennedy's concurrence, which was joined by Justice O'Connor,
propose to restrict Congress's commerce power to the regulation of commercial
activity. Instead, the concurrence explicitly presumed that Congress may,
in some circumstances, regulate non-commercial activity. The concurrence
urged only that if "neither the [regulated] actors nor their conduct
has a commercial character, and neither the purposes nor the design of the
statute have an evident commercial nexus," then a court should "inquire
whether the exercise of national power seeks to intrude upon an area of
traditional state concern." 514 U.S. at 580.
Lopez thus did not upset the Court's understanding that "[i]t is the
effect upon interstate commerce or upon the exercise of the power to regulate
it, not the source of the injury which is the criterion of Congressional
power" under the Commerce Clause. United States v. Wrightwood Dairy
Co., 315 U.S. 110, 121 (1942) (emphasis added); accord Jones & Laughlin
Steel, 301 U.S. at 32. Indeed, the Lopez Court cited, without any suggestion
of disapproval, earlier decisions sustaining Congress's power under the
Commerce Clause to regulate activity because of its effect on commerce,
without considering whether the activity itself was fairly characterized
as commercial. See Lopez, 514 U.S. at 557, 559-560 (citing Wickard, McClung,
and Heart of Atlanta Motel). In Wickard, for example, the underlying activity
was an individual farmer's cultivation of wheat for his family's personal
consumption; in Heart of Atlanta Motel and McClung, the underlying activity
was individual business owners' refusal to serve potential customers on
the basis of their race. The Court's analysis in those cases did not address
whether the underlying activity was sufficiently commercial to justify regulation
under the Commerce Clause. It instead focused on whether the underlying
activity, whether commercial or not, could be found to have the requisite
effect on interstate commerce. See Heart of Atlanta Motel, 279 U.S. at 257
(recognizing that the correct inquiry is whether the underlying activity,
even if "a moral problem," has a "disruptive effect * * *
on commercial intercourse").
In any event, the underlying activity at which Section 13981 is directed
has an economic component. Section 13981 is designed to remedy gender-motivated
violence that occurs at, or en route to, workplaces, retail establishments,
and interstate transportation terminals as well as in other settings. See,
e.g., 1993 S. Rep. 54 n.70 (noting the risk of violence to women employed
in night jobs). And Section 13981 is designed to remedy not only gender-motivated
violence itself but also the inadequate existing mechanisms to compensate
the victims of such violence for their economic injuries, such as lost earnings,
medical expenses, and relocation costs. See, e.g., 1991 S. Rep. 44 (concluding
that the fact that "less than 1 percent of all victims have collected
damages" against their assailants "belie[s] claims that State
laws provide 'adequate' remedies for the victims of these crimes").
Accordingly, even if Congress were limited after Lopez to regulating intrastate
activity that has some economic component, Section 13981 would come within
that limitation.
C. Section 13981 Does Not Present The Federalism Concerns That Were Central
To The Lopez Decision
The court of appeals' second rationale for concluding that Section 13981
was not a valid exercise of Congress's authority under the Commerce Clause
rested on federalism concerns. The court reasoned that Section 13981, like
the GFSZA in Lopez, could not be sustained without endorsing an unlimited
expansion of the commerce power. See Pet. App. 31a-51a. The court failed
to recognize critical differences between the two statutes that render Section
13981 an appropriate, and appropriately limited, exercise of congressional
authority within our federal system.
The GFSZA, as the Court emphasized in Lopez, was a criminal statute. 514
U.S. at 561. It thus intruded into an area in which "the States possess
primary authority"- "defining and enforcing the criminal law."
Id. at 561 n.3; see also id. at 564 (noting that the "states historically
have been sovereign" in the areas of "criminal law enforcement"
and education). The Court explained that the statute consequently had two
deleterious effects on the federal-state balance. In the many States that
had already prohibited the possession of guns in or near schools, the GFSZA
"effect[ed] a change in the sensitive relation between federal and
state criminal jurisdiction," because a crime that was previously prosecuted
by the State now would be prosecuted by the United States. Id. at 561 n.3
(internal quotation marks omitted). And, in the remaining States that had
not chosen to prohibit such conduct, the GFSZA "displace[d] state policy
choices," as the United States acknowledged. Ibid.; see also id. at
583 (Kennedy, J., concurring) (observing that the GFSZA "foreclose[d]
the States from experimenting and exercising their own judgment in an area
to which States lay claim by right of history and expertise").
Section 13981 presents none of the federalism concerns that animated the
Lopez decision for several reasons:
First, Section 13981, in contrast to the GFSZA, was carefully crafted to
avoid intrusions upon areas of traditional state concern. Section 13981
is an exclusively civil remedy that enables victims of gender-motivated
violence to seek redress against their assailants-a remedy that supplements,
but does not supplant, any remedy that the victims may have under state
law. Section 13981 displaces no state law and prohibits no state action.
See 42 U.S.C. 13981(d)(2) (incorporating existing federal and state legal
standards in defining the conduct that may give rise to liability). Section
13981 does not operate against the States or state officials and does not
conscript the States or state officials in its enforcement.18
Section 13981 therefore does not implicate "the sensitive relation
between federal and state criminal jurisdiction." Lopez, 514 U.S. at
561 n.3. Nor does Section 13981 "foreclose[] the States from experimenting
and exercising their own judgment" in responding to the problem of
gender-motivated violence. Id. at 583 (Kennedy, J., concurring). Accordingly,
as 36 state attorneys general observe in their brief amici curiae, Section
13981 "complements state and local efforts to combat violence against
women," without "compromising those efforts" or "intruding
in an area of traditional state concern." Br. of Arizona et al. 21.
Second, Congress understood Section 13981 to be "civil rights"
legislation in the classic sense. 42 U.S.C. 13981(a); see 1990 S. Rep. 41
(Section 13981 "makes a national commitment to condemn crimes motivated
by gender in just the same way we have made a national commitment to condemn
crimes motivated by race and religion."). To that end, Congress limited
the reach of Section 13981 to violence "due, at least in part, to an
animus based on the victim's gender," 42 U.S.C. 13981(d)(1), and excluded
"random acts of violence unrelated to gender," 42 U.S.C. 13981(e)(1).
By targeting gender-motivated violence-which Congress recognized to be "a
form of discrimination," not merely "an individual crime or a
personal injury," 1993 S. Rep. 51-Congress acted to vindicate civil
rights. Cf. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67 (1986) (holding
that severe or pervasive sexual harassment may constitute discrimination
in violation of Title VII).
The vindication of civil rights has long been a paradigmatic federal responsibility.
See Heart of Atlanta Motel, 379 U.S. at 245 (tracing federal civil rights
legislation since 1866); see generally Mitchum v. Foster, 407 U.S. 225,
238-239 & n.29 (1972) (noting that the post-Civil War Amendments and
Acts of Congress "constitute[d] the federal government the protector
of the civil rights") (quoting J. tenBroek, The Anti-Slavery Origins
of the Fourteenth Amendment 185 (1951)). It is a responsibility that, to
be sure, is shared with the States. But in contrast to general criminal
law as involved in Lopez, civil rights historically has not been an area
in which "the States possess primary authority." Lopez, 514 U.S.
at 561 n.3.
Third, Congress enacted Section 13981 to address a problem that was caused,
in part, by pervasive failures in the States' criminal and civil justice
systems. See pp. 7-11, supra. Indeed, in urging the adoption of the Violence
Against Women Act, including the civil remedy of Section 13981, the States
acknowledged that their own efforts to deal with the problem had proved
"inadequate." 1993 H. Jud. Hearing 34-36. A statute premised on
such systemic state failures does not presage an open-ended expansion of
federal power into domains properly reserved to the States. As the dissent
below explained, "nothing more clearly illustrates the basic difference"
between the statutes in this case and Lopez than that Section 13981 "responded
to the states' self-described needs, while the GFSZA added a redundant layer
of federal regulation in an area where most states had already acted."
Pet. App. 276a.
If a regulated activity poses a genuine threat to interstate commerce, and
the States do not adequately address that threat, federalism principles
do not prevent Congress from acting and require the threat to go unanswered.
Cf. North Am. Co. v. SEC, 327 U.S. 686, 705 (1946) ("Th[e] broad commerce
clause does not operate so as to render the nation powerless to defend itself
against economic forces that Congress decrees inimical or destructive of
the national economy."). To the contrary, a "demonstrated state
failure" may make federal legislation particularly appropriate. Chief
Justice William H. Rehnquist, The 1998 Year-End Report of the Federal Judiciary
7 (Jan. 1999) (describing recommendations on how Congress might appropriately
balance, in the criminal context, jurisdiction between the state and federal
courts); see also Hodel, 452 U.S. at 281-282 (sustaining federal environmental
standards for intrastate coal mining under the Commerce Clause based, in
part, on Congress's finding that the States could be deterred by local economic
interests from imposing similarly rigorous standards).
Finally, the Violence Against Women Act, of which Section 13981 is a part,
is a prototypical example of cooperative federalism. A major purpose of
the Act was to encourage, enhance, and enforce the States' own efforts to
address gender-motivated violence. For example, Congress imposed federal
penalties for interstate violations of state protection orders (18 U.S.C.
2262 (1994 & Supp. IV 1998)), required that state protection orders
be accorded full faith and credit (18 U.S.C. 2265), and provided $1.6 billion
in grants over six years to assist state, local, and tribal initiatives
to combat gender-motivated violence (42 U.S.C. 300w-10, 3796gg, 3796hh,
10409(a), 13931). All of those provisions, and Section 13981, were endorsed
by the States themselves. See 1993 H. Jud. Hearing 34-36. Accordingly, especially
when viewed in the context of the entire Violence Against Women Act, Section
13981 is duly respectful of "the federal balance the Framers designed
and that this Court is obliged to enforce." Lopez, 514 U.S. at 583
(Kennedy, J., concurring).
II. SECTION 13981 IS A VALID EXERCISE OF CONGRESS'S POWER TO ENFORCE THE
FOURTEENTH AMENDMENT
Section 13981 is also a valid exercise of Congress's power under Section
5 of the Fourteenth Amendment to remedy state action that denies individuals
the equal protection of the laws. Congress found that state justice systems
routinely treat violent crimes motivated by gender less seriously than other
violent crimes-a disparity that Congress attributed to false stereotypes
about gender-motivated violence and its victims, as reflected in state laws,
state evidentiary rules, and the attitudes of police, prosecutors, judges,
and other state actors. Congress rationally determined that Section 13981,
which provides a means of seeking redress for gender-motivated violence
that the victim, not the State, controls, is an appropriate remedy for such
equal protection violations. Contrary to the court of appeals' conclusion,
Congress was not limited to providing victims with a remedy against the
State itself-an approach that Congress could have perceived to be impractical
as to victims, intrusive as to the States, and inconsistent with the spirit
of cooperative federalism.
A. Congress Found Sex-Based Discrimination In State Justice Systems, In
Violation Of The Equal Protection Clause Of The Fourteenth Amendment, That
Warranted Remedial And Preventive Action Under Section 5 Of That Amendment
Section 5 of the Fourteenth Amendment is "a positive grant of legislative
power" to Congress. City of Boerne v. Flores, 521 U.S. at 517 (quoting
Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)). As this Court recently
reaffirmed, "[i]t is for Congress in the first instance to 'determine
whether and what legislation is needed to secure the guarantees of the Fourteenth
Amendment,' and its conclusions are entitled to much deference." Id.
at 536 (quoting Morgan, 384 U.S. at 651); see also City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 490 (1989) (opinion of O'Connor, J.) (Congress's
power under Section 5 "may at times also include the power to define
situations which Congress determines threaten principles of equality").
In seeking to identify conduct that violates the guarantee of equal protection,
Congress has "wide latitude" and a markedly different role from
the courts. Flores, 521 U.S. at 520, 535. Congress has a unique institutional
capacity to gather information on a comprehensive basis, unconstrained by
the limitations of particular litigation and evidentiary rules, and to draw
upon the experiences and expertise of the people and communities represented
by its Members.19 Congress is thus not limited under Section 5 to addressing
conduct that courts have determined to be unconstitutionally discriminatory.
Rather, Congress may apply this Court's definition of the equal protection
right to a set of legislatively determined facts and ascertain, in a way
that courts cannot, whether and how often, as an empirical matter, government
action entails the "indiscriminate imposition of inequalities."
Romer v. Evans, 517 U.S. 620, 633 (1996).
Congress's determination that "bias and discrimination in the [state]
criminal justice system often deprive[] victims of crimes of violence motivated
by gender of equal protection of the laws," Conf. Rep. 385, is entitled
to considerable deference. The extensive record before Congress, which included
the reports of some 20 state task forces on gender bias, demonstrated that
"crimes disproportionately affecting women," such as rape and
domestic abuse, "are often treated less seriously than comparable crimes
against men." 1991 S. Rep. 43; see also 1993 S. Rep. 42.
The principal cause of that disparity, according to the evidence presented
to Congress, was "improper stereotypes" concerning gender-motivated
violence and its victims. 1991 S. Rep. 39, 49; see also 1993 S. Rep. 38
(noting the "archaic prejudices" that have caused "those
within the justice system" to "blame women for the beatings and
the rapes they suffer").20 Those stereotypes were sometimes reflected
in state laws, such as marital rape exceptions and tort immunity doctrines,
and state evidentiary rules. The stereotypes were far more often reflected
in the attitudes of police officers, prosecutors, judges, and other court
personnel. 1993 S. Rep. 55; 1991 S. Rep. 45-48, 53-54. In the State of Washington,
for example, the gender-bias task force found that "almost a quarter
of the judges believed that rape victims 'sometimes' or 'frequently' precipitate
their sexual assaults because of what they wear and/or actions preceding
the incidents." 1991 S. Rep. 47 n.63. In Maryland, a judicial commission
found that "cases involving domestic violence are regarded [by judges]
as trivial or unimportant." 1993 H. Rep. 27. In Georgia, a committee
of judges found that "police, prosecutors and judges often have gender-biased
attitudes about domestic violence" and that rape "victims receive
treatment from police, prosecutors and judges which is adversely affected
by gender bias." Id. at 27-28. In California, the task force found
that "police officers, district and city attorneys, court personnel,
mediators, and judges-the justice system-treated the victims of domestic
violence as though their complaints were trivial, exaggerated or somehow
their own fault." 1993 S. Rep. 46; see also pp. 8-10, supra (discussing
additional evidence of gender bias in state justice systems).21
It is well established that state action based on inaccurate stereotypes-and,
in particular, stereotypes relating to gender-may violate the Equal Protection
Clause of the Fourteenth Amendment. See, e.g., United States v. Virginia,
518 U.S. 515, 532-533 (1996); Mississippi Univ. for Women v. Hogan, 458
U.S. 718, 725-726 (1982); Craig v. Boren, 429 U.S. 190, 198-199 (1976);
see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985)
(zoning ordinance that "rest[ed] on an irrational prejudice against
the mentally retarded" violated equal protection). Indeed, by the time
that Congress was considering the Violence Against Women Act, several lower
federal courts had specifically recognized that state actors' failure to
treat domestic violence as seriously as other violence may constitute an
equal protection violation. See, e.g., Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 701 (9th Cir. 1990); Hynson v. City of Chester, 864 F.2d 1026,
1030-1031 (3d Cir. 1988); Thurman v. City of Torrington, 595 F. Supp. 1521,
1526-1529 (D. Conn. 1984). Here, based on the extensive factual record documenting
the States' failure to respond effectively to violent crimes against women
due to the "archaic prejudices" of "those within the justice
system," 1993 S. Rep. 38, Congress could properly have concluded that
violations of equal protection, under the standard set forth by this Court,
were occurring repeatedly in state justice systems across the country.22
This is not to suggest that Congress found that any State has, at its highest
levels, established a deliberate policy of discriminating against women
(or against victims of gender-motivated violence, whom Congress found to
be predominantly women). Rather, Congress found, largely on the basis of
evidence provided by state task forces and state officials, that many participants
in the state justice systems were acting in an intentionally discriminatory
manner and that the States' own effort to eliminate such bias had not succeeded
and required federal assistance. Such purposeful discrimination by state
officials and state employees constitutes state action in violation of the
Equal Protection Clause even if it does not implement, and may even violate,
state policy. See, e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991) (actions
against state officials in their personal capacities under 42 U.S.C. 1983
based on alleged constitutional violations need not involve a state policy
or custom). Congress was entitled to invoke its authority under Section
5 of the Fourteenth Amendment to remedy such violations.23
B. The Private Right Of Action Created By Section 13981 Is An Appropriate
Mechanism To Remedy And Prevent The Constitutional Violations That Congress
Identified
Congress has broad discretion under Section 5 of the Fourteenth Amendment
in fashioning remedies for violations of constitutional rights. See Flores,
521 U.S. at 517-518 ("Whatever legislation is appropriate, that is,
adapted to carry out the objects the amendments have in view, * * * if not
prohibited, is brought within the domain of congressional power.")
(quoting Ex parte Virginia, 100 U.S. 339, 345-346 (1880)); see also Morgan,
384 U.S. at 650 (Section 5 gives Congress "the same broad powers expressed
in the Necessary and Proper Clause").
As this Court has made clear, moreover, the question whether Congress may
reach particular conduct, in exercising its authority under Section 5, is
distinct from the question whether particular conduct violates Section 1.
Thus, "[l]egislation which deters or remedies constitutional violations
can fall within the sweep of Congress' enforcement power even if in the
process it prohibits conduct which is not itself unconstitutional and intrudes
into 'legislative spheres of autonomy previously reserved to the States.'"
Flores, 521 U.S. at 518 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455
(1976)); see also J.A. Croson Co., 488 U.S. at 490 (recognizing Congress's
power under Section 5 to adopt "prophylactic rules").
The private right of action provided by Section 13981 is an appropriate
remedy, and a quintessentially legislative one, for the equal protection
violations that Congress found in state justice systems. Section 13981 gives
victims of gender-motivated violence "an opportunity for legal vindication,"
in federal or state court, that "the [victim], not the State, controls."
1990 S. Rep. 42. Section 13981 thus prevents and remedies the discrimination
that victims of gender-motivated crimes often face in state justice systems
by giving them an alternative means of obtaining legal redress.24 And, as
explained above (see pp. 33-34 & n.18, supra), Section 13981 does so
in a manner that does not intrude into the operations of state government.
The court of appeals regarded the unintrusiveness of Section 13981 as a
vice, suggesting that Congress's only recourse was to regulate state conduct
directly. See Pet. App. 157a. That conclusion has no constitutional basis.
A remedy that permits victims of gender-motivated violence to seek the vindication
that the States have failed to provide is a wholly permissible means of
effectuating the purposes of the Fourteenth Amendment. Section 5 does not
confine Congress's broad remedial authority to creating causes of action
against States and state officials. Congress could otherwise be limited
to remedies that it regarded as ineffective or inappropriate. Congress could
conclude, for example, that a cause of action against state officials would
undermine the cooperation that the Violence Against Women Act sought to
achieve among the national, state, and local governments. And an action
of that kind would contravene established principles of prosecutorial immunity.25
Congress chose instead to proceed affirmatively to address the stereotypes
and other barriers that caused States to deny victims of gender-motivated
violence the equal protection of the laws. For example, Congress committed
$1.6 billion over six years to support state, local, and tribal efforts
to reduce violence against women, including funds for "training law
enforcement officers and prosecutors to more effectively identify and respond
to violent crimes against women" (42 U.S.C. 3796gg(b)(1)) and "educat[ing]
judges in criminal and other courts about domestic violence" (42 U.S.C.
3796hh(b)(6)). Congress also sought to combat stereotypes by making clear
to all Americans, including participants in state justice systems, that
"attacks motivated by gender [bias] [are] to be considered as serious
as crimes motivated by religious, racial, or political bias." 1993
S. Rep. 38; see 42 U.S.C. 13981(b) (declaring that "[a]ll persons within
the United States shall have the right to be free from crimes of violence
motivated by gender"). At the same time, Congress recognized that reform
of the state justice systems would take time, and so it gave victims of
gender-motivated violence a means of obtaining compensation and vindication
that otherwise was often unattainable. Those choices are well within Congress's
broad discretion to "determin[e] whether and what legislation is needed
to secure the guarantees of the Fourteenth Amendment." Flores, 521
U.S. at 536 (quoting Morgan, 384 U.S. at 651).
C. Congress's Exercise Of Its Power Under The Enforcement Clause To Enact
Section 13981 Is Consistent With This Court's Decisions
1. The court of appeals, relying on United States v. Harris, 106 U.S. 629
(1883), and the Civil Rights Cases, 109 U.S. 3 (1883), ruled that Section
13981 "is invalid, regardless of whether its end is to remedy unconstitutional
state action, for the simple reason that it regulates purely private conduct
and is not limited to individual cases in which the state has violated the
plaintiff's Fourteenth Amendment rights." Pet. App. 126a. The court
misread this Court's Reconstruction-era decisions, which do not bar Congress
from reaching the conduct of private persons, when Congress does so in order
to remedy discrimination by a State or its agents.
In Harris, the Court struck down a statute that was premised on the assumption
that purely private conduct could violate the Fourteenth Amendment. The
statute at issue, Section 2 of the Civil Rights Act of 1871, ch. 22, 17
Stat. 13, outlawed conspiracies among private persons to deprive any person
of the equal protection of the law. The explicit predicate for the application
of the statute was a finding that private persons had committed an equal
protection violation.26
The statute at issue in the Civil Rights Cases similarly purported to extend
the affirmative requirements of the Fourteenth Amendment directly to private
persons. The Civil Rights Act of 1875, ch. 114, 118 Stat. 335, established
a right to be free of private discrimination in public accommodations. See
109 U.S. at 9.27 The Court explained that the critical flaw in the statute
was that it did "not profess to be corrective of any constitutional
wrong committed by the States"; instead, the statute "step[ped]
into the domain of local jurisprudence, and [laid] down rules for the conduct
of individuals in society towards each other, and impose[d] sanctions for
the enforcement of those rules, without referring in any manner to any supposed
action of the State or its authorities." Id. at 14.
Unlike the statutes invalidated by the Reconstruction-era Court, Section
13981 is not premised on the assumption that private conduct can violate
the Fourteenth Amendment. Instead, Section 13981 remedies and prevents discrimination
by the States themselves. Nothing in this Court's precedents bars Congress
from regulating private conduct in order to provide a remedy for unconstitutional
state action.28 To the contrary, as Congress declared in enacting the Violence
Against Women Act: "While the 14th amendment itself only covers actions
by the States, Congress's power to enforce the amendment includes the power
to create a private remedy as the most effective means to fight public discrimination."
1993 S. Rep. 55 n.72 (citing Morgan, supra; District of Columbia v. Carter,
409 U.S. 418, 423, 424 n.8 (1973) (that "[t]he Fourteenth Amendment
itself 'erects no shield against merely private conduct' * * * is not to
say * * * that Congress may not proscribe purely private conduct under §
5 of the Fourteenth Amendment")). Accordingly, Section 13981 is properly
viewed as "corrective legislation, that is, such as may be necessary
and proper for counteracting * * * such acts and proceedings as the States
may commit or take, and which by the [Fourteenth] amendment they are prohibited
from committing or taking." The Civil Rights Cases, 109 U.S. at 13-14.
2. Nor does this Court's decision in Flores call into question the validity
of Section 13981 as legislation to remedy and deter violations of constitutional
rights.
In Flores, the Court held that Congress exceeded its authority under Section
5 of the Fourteenth Amendment in applying the Religious Freedom Restoration
Act of 1993 (RFRA), 107 Stat. 1488, to the States, because RFRA appeared
to redefine the substantive scope of a constitutional right, rather than
simply to enforce a constitutional right as defined under existing law.
RFRA was adopted in direct response to this Court's decision in Employment
Division v. Smith, 494 U.S. 872 (1990), which held that the States do not
need a compelling justification to enforce neutral, generally applicable
laws that burden religious practices. The express purpose of RFRA was to
reimpose the earlier compelling interest test. Flores, 521 U.S. at 515-516.
The Court concluded that the remedy provided by RFRA was wholly disproportionate
to any violations of a recognized constitutional right. The Court found
that the legislative record lacked evidence of any such constitutional violations,
i.e., any generally applicable law that had been enacted in modern times
out of religious bigotry. Id. at 530. And, even if some small number of
such constitutional violations existed, RFRA was too "[s]weeping"
in its coverage to "be understood as responsive to, or designed to
prevent," them. Id. at 532; see ibid. (observing that RFRA "intrud[ed]
at every level of government, displacing laws and prohibiting official actions
of almost every description and regardless of subject matter"). The
Court therefore concluded that RFRA could not properly be viewed as legislation
to "enforce" any recognized constitutional right. Because Section
5 gives Congress the power only to "enforce," not to define, constitutional
rights, the Court held that RFRA was not a permissible exercise of the Section
5 power. See id. at 519 ("Legislation which alters the meaning of the
Free Exercise Clause cannot be said to be enforcing the Clause.").
Section 13981 does not redefine the substantive prohibitions of the Fourteenth
Amendment. To the contrary, Section 13981 provides an additional remedy
for constitutional violations under existing law, i.e., the States' denial
of the equal protection of the laws to victims of gender-motivated violence
due to "bias and discrimination in the [state] criminal justice system."
Conf. Rep. 385. That remedy, moreover, is proportional to the constitutional
violations that Congress identified. In contrast to the situation in Flores,
Congress compiled an extensive record of equal protection violations, which
Congress found were frequent, ongoing, and pervasive. See, e.g., 1993 S.
Rep. 49 (noting the "overwhelming evidence" contained in "[s]tudy
after study" that "gender bias permeates the court system and
that women are most often its victims"). And, in contrast to the situation
in Flores, Congress fashioned an appropriately limited remedy in Section
13981 that in no way intrudes into the operations of state government.29
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
MARK B. STERN
ALISA B. KLEIN
ANNE MURPHY
Attorneys
NOVEMBER 1999
1 The criminal provisions of the Violence Against Women Act, which are not
at issue here, have been uniformly sustained against constitutional challenge
by the courts of appeals. See, e.g., United States v. Gluzman, 154 F.3d
49 (2d Cir. 1998), cert. denied, 119 S. Ct. 1257 (1999); United States v.
Wright, 128 F.3d 1274 (8th Cir. 1997), cert. denied, 523 U.S. 1053 (1998);
United States v. Bailey, 112 F.3d 758 (4th Cir.), cert. denied, 522 U.S.
896 (1997).
2 A "crime of violence" is defined in 18 U.S.C. 16 as "an
offense that has as an element the use, attempted use, or threatened use
of physical force against the person or property of another" or "any
other offense that is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be
used in the course of committing the offense."
3 The congressional reports noted that the full extent of the problem is
difficult to measure. 1990 S. Rep. 31-32. Estimates indicate that only 50%
of rapes and fewer than 10% of sexual assaults are reported. See Women and
Violence: Hearings Before the Senate Comm. on the Judiciary, 101st Cong.,
2d Sess., Pt. 1, at 12 (1990); see also Violence Against Women: Hearing
Before the Subcomm. on Crime and Criminal Justice of the House Comm. on
the Judiciary, 102d Cong., 2d Sess. 6 (1992) (1992 H. Jud. Hearing).
4 The legislative record also identified other ways in which gender-motivated
violence affects interstate commerce and the national economy. The cost
of medical care for victims of domestic violence, for example, was estimated
at more than $100 million a year. 1990 S. Jud. Hearings 58. And as many
as 50% of the women and children who are homeless in this country are fleeing
domestic violence. 1990 S. Rep. 37.
5 The quoted statement is contained in a July 22, 1993, letter, signed or
concurred in by 38 state attorneys general, that was submitted to the House
Judiciary Committee in support of the Violence Against Women Act. 1993 H.
Jud. Hearing 34-36; see also Violence Against Women: Victims of the System:
Hearing Before the Senate Comm. on the Judiciary, 102d Cong., 1st Sess.
37-38 (1991) (resolution unanimously adopted by National Association of
Attorneys General endorsing the 1990 version of the Act). Some state officials
opposed the Act. See 1993 H. Jud. Hearing 77-84 (letter and resolution of
Conference of Chief Justices opposing civil remedy provision of the Act).
6 Chief Judge Wilkinson and Judge Niemeyer, both of whom joined the majority
opinion, also wrote separate concurrences. See Pet. App. 168a-189a (Wilkinson,
C.J., concurring) (concluding that striking down Section 13981 as exceeding
Congress's constitutional authority is not improper judicial activism);
id. at 189a-209a (Niemeyer, J., concurring) (proposing that in order for
a regulation of intrastate activity to be sustained as substantially affecting
interstate commerce, "(1) the target of [the regulation] must be interstate
commerce, even though it may not be the purpose of the regulation, and (2)
the effect that the activity has on interstate commerce must be proximate
and not incidental").
7 The power to regulate intrastate activity that has a substantial effect
on interstate commerce is confirmed by Congress's constitutional authority
"[t]o make all Laws which shall be necessary and proper for carrying
into Execution" its enumerated powers. Art. I, § 8, Cl. 18. See
New York v. United States, 505 U.S. 144, 158-159 (1992) ("The Court's
broad construction of Congress' power under the Commerce * * * Clause[]
has, of course, been guided * * * by the Constitution's Necessary and Proper
Clause.").
8 The testimony specifically noted the impact of domestic violence on the
productivity of two major corporations engaged in interstate commerce: Polaroid
Corporation and E.I. DuPont de Nemours & Company. See Hearing on Domestic
Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong.,
1st Sess. 16 (1993) (1993 S. Jud. Hearing) (noting Polaroid employees' "tardiness,
poor job performance, increased medical claims [and] interpersonal conflicts
in the workplace" as a result of domestic violence); 1990 S. Jud. Hearings
58 (noting DuPont's need to develop programs to deal with the domestic violence
that affected many of its employees).
9 See also, e.g., 1991 S. Jud. Hearing 86 (testimony of Professor Burt Neuborne)
(Women "tend to choose their jobs with one eye looking over their shoulder
about their safety. They can't work late like men can work; they can't work
overtime; they can't take jobs in localities that are considered to be dangerous.").
10 See also, e.g., 1990 S. Jud. Hearings, Pt. 2, at 80 (letter from International
Union, United Automobile Workers of America) ("The threat of violence
has made many women understandably afraid to walk our streets or use public
transportation.").
11 See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 33 (1994)
(noting the "commuter railroad connecting New York City to Northern
New Jersey"); Washington Metro. Area Transit Auth. v. Johnson, 467
U.S. 925, 927 (1984) (noting the "rapid transit system (Metro) for
the District of Columbia and the surrounding metropolitan region" of
Maryland and Virginia).
12 Some victims of domestic violence are reduced to property crimes in order
to pay for necessities. See Domestic Violence: Terrorism in the Home: Hearing
Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate
Comm. on Labor and Human Resources, 101st Cong., 2d Sess. 30 (1990) (noting
that a substantial portion of the women inmates in the Massachusetts prison
system are domestic violence victims who were prosecuted for writing bad
checks to pay for shelter, groceries, and children's clothing); cf. Perez,
402 U.S. at 156 (noting that Congress's determination that extortionate
credit transactions affect interstate commerce was based, in part, on evidence
that "the loan shark racket * * * coerces its victims into the commission
of crimes against property").
13 Cf. United States v. Shubert, 348 U.S. 222, 226 (1955) (recognizing that
the production, distribution, and exhibition of motion pictures are activities
that involve interstate commerce for purposes of the Sherman Act) (citing
cases).
14 Cf. Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 329 (1991) (recognizing
that a conspiracy that affects a hospital's "purchases of out-of-state
medicines and supplies as well as its revenues from out of state insurance
companies would establish the necessary interstate nexus" for purposes
of the Sherman Act) (internal quotation marks and citations omitted).
15 Although the provisions of the Civil Rights Act of 1964 at issue in Heart
of Atlanta Motel and McClung contain a jurisdictional element (e.g., a restaurant
is subject to the statute only if it "serves or offers to serve interstate
travelers or a substantial portion of the food which it serves * * * has
moved in commerce," 42 U.S.C. 2000a(c)), the existence of those elements
was not central to the Court's analysis in either case. The Court instead
focused on whether the underlying regulated activity, the denial of service
on account of race, sufficiently affected interstate commerce. See, e.g.,
McClung, 379 U.S. at 304-305 (observing that "[t]he absence of direct
evidence connecting discriminatory restaurant service with the flow of interstate
food * * * is not, given the evidence as to the effect of such practices
on other aspects of commerce, a crucial matter").
16 After the Fifth Circuit invalidated the GFSZA for want of findings, Congress
amended the statute to add findings about the effect on commerce of gun
possession near schools. See 514 U.S. at 563 n.4. Those findings were not
based upon a legislative record, however; the government did not rely upon
the findings in defending the statute, and this Court did not address or
even describe the findings. Ibid.; see id. at 612 n.2 (Souter, J., dissenting)
(dismissing "these particular afterthoughts" as "conclusory").
17 The court of appeals' second rationale was that Section 13981 undermined
federalism principles in the same manner as did the GFSZA in Lopez. That
aspect of the court's decision is discussed in Part C below.
18 Section 13981 also precludes supplemental federal jurisdiction over state-law
disputes concerning divorce, alimony, equitable distribution of property,
and child custody. 42 U.S.C. 13981(e)(4). Nor may an action be removed from
state court to federal court based on a claim under Section 13981. 28 U.S.C.
1445(d).
19 See Fullilove v. Klutznick, 448 U.S. 448, 502-503 (1980) (Powell, J.,
concurring) (Congress, unlike the courts, "has no responsibility to
confine its vision to the facts and evidence adduced by particular parties";
instead, Congress has a "broader mission to investigate and consider
all facts and opinions that may be relevant to the resolution of an issue.");
see also United States v. Gainey, 380 U.S. 63, 67 (1965) ("significant
weight should be accorded the capacity of Congress to amass the stuff of
actual experience and cull conclusions from it").
20 See 1991 S. Rep. 39 (noting that "[w]itnesses testified that stereotypes
like 'she asked for it,' 'she made it up,' or 'no harm was done' are frightenin>
Transfer interrupted! the "suspicion" with which rape
victims are treated); id. at 47 (noting the pervasive "stereotypes"
such as that "people who are raped precipitate [it] in some way, whether
it be by dress, having a drink in a bar, accepting a ride in a car or accepting
a date").
21 The record before Congress contained many other examples of bias against
victims of gender-motivated violence in state justice systems. See, e.g.,
1990 S. Jud. Hearings, Pt. 1, at 65 ("Cultural stereotypes of women's
role in marriage and in society daily distort courts' application of substantive
law. Women uniquely, disproportionately and with unacceptable frequency
must endure a climate of condescension, indifference and hostility.")
(quoting Report of the New York Task Force on Women in the Courts, 15 Fordham
Urb. L. J. 11, 17-18 (1986-1987)); 1992 H. Jud. Hearing 70 (testimony of
a Florida assistant state attorney) ("[S]ince many [police] officers
consider domestic violence to be a private matter, something other than
real crime, the failure to properly investigate the case is tolerated and,
in fact, in some departments it is even encouraged."); Connecticut
Task Force on Gender, Justice and the Courts, Report 103-104 (1991) (3%
of state judges surveyed "believe that a husband who hits his wife
has usually been nagged or otherwise pushed over the edge by her,"
6.6% "believe that a woman deserves what she gets if she stays with
a man who batters her," and 20.7% "believe that husbands who force
sex on their wives are * * * not really rapists"); Illinois Task Force
on Gender Bias in the Courts, Gender Bias in the Courts 125 (1990) ("[s]ome
criminal justice personnel blame female victims for their exercise of judgment,
as though they 'assumed the risk' of sexual assault"); Final Report
of the Iowa Equality in the Courts Task Force 151 (1993) ("[j]udges
may question the character of the [domestic abuse] victim or tend to blame
the victim for not leaving the abuser"); Kentucky Task Force on Gender
Fairness in the Courts, Equal Justice for Women and Men 29 (1992) (the "[j]udicial
response to domestic violence" is influenced by "[s]tereotypical
attitudes and beliefs," with "a substantial number of judges"
still "downplay[ing] the seriousness of domestic violence and manifest[ing]
a tendency to side with the husband"); Louisiana Task Force on Women
in the Courts, Final Report 99-100 n.157 (1992) ("[a]ttempts to blame
the victim for the crime are not uncommon," citing examples of such
attitudes by a police officer and a judge); Final Report of the Michigan
Supreme Court Task Force on Gender Issues in the Court 35 (1989) ("attitudes
[based on stereotypes] limit the effectiveness of the protection provided
by law"); Final Report of the Rhode Island Committee on Women in the
Courts 36 (1987) ("there are other barriers which prevent victims from
obtaining effective relief, barriers created primarily by the attitudes
of some judges, court personnel and deputy sheriffs"); Utah Task Force
on Gender and Justice, Report to the Utah Judicial Council S-15 (1990) (police
officers' "[s]tereotypes about men and women" affect their response
to domestic violence). Other state task force reports not specifically cited
by Congress made similar findings. See, e.g., Report of the Missouri Task
Force on Gender and Justice 37-38 (1993) ("[a] number of witnesses
* * * criticized judges' attitudes and the way they handle domestic violence
issues," such as "asking the victims what they had done to provoke
their partners to hit them" and even "ask[ing] women in court
if they like being beaten"); Texas Gender Bias Task Force, Final Report
5 (1994) ("Victims of domestic violence face discriminatory attitudes
from law-enforcement personnel, prosecutors, judges, and law-makers. Domestic
violence is viewed as less serious than other criminal acts, women's experiences
are minimized, victims' credibility often is questioned, and battered women
are sometimes blamed for causing the abuse.").
22 Congress recognized that many state officials have made efforts to reform
their justice systems. But those efforts do not, as the court of appeals
appeared to believe (see Pet. App. 155a), make the continuing discrimination
by other state actors within the system any less unconstitutional. Congress
found that "[d]espite States' most fervent efforts at legislative reform,
these stereotypes persist and continue to distort the criminal justice system's
response to violence against women." 1991 S. Rep. 39.
23 Moreover, even if it were not possible to identify any individual state
officials or state employees who acted with discriminatory intent, a systemic
bias against women, which the States acknowledged but failed to correct,
would violate equal protection. Such a systemic bias is not comparable to
the inadvertent disparate impact of a nondiscriminatory system as in Washington
v. Davis, 426 U.S. 229 (1976). The systemic bias acknowledged here by the
States is necessarily the product of the intentional actions of a multitude
of widely dispersed decision-makers. The inability to identify the particular
biased actors should not defeat the congressional finding that women have
been denied the equal protection of the laws. See id. at 241.
24 Section 13981 prevents discrimination by, inter alia, enabling victims
of gender-motivated violence to avoid resorting to the state justice systems
that, in Congress's judgment, would often treat their complaints in a biased
manner. Section 13981 remedies discrimination by, inter alia, providing
a means of vindication for victims who did resort to state justice systems
and who, in Congress's judgment, would often experience bias in those systems.
25 For similar reasons, Congress could decline to make proof of state discrimination
an element of Section 13981's cause of action. Indeed, such proof would
have made the federal remedy much more costly and cumbersome for plaintiffs
and much more intrusive into state functions. See Flores, 521 U.S. at 526
(the "new, unprecedented remedies" of the Voting Rights Act upheld
in South Carolina v. Katzenbach, 383 U.S. 301 (1966), "were deemed
necessary given the ineffectiveness of the existing voting rights laws *
* * and the slow, costly character of case-by-case litigation").
26 See 17 Stat. 13 (making it a crime for two or more persons, "either
directly or indirectly," to "depriv[e] any person or any class
of persons of the equal protection of the laws").
27 See 18 Stat. 336 (establishing a right in all persons to "the full
and equal enjoyment of the accommodations, advantages, facilities, and privileges
of inns, public conveyances on land or water, theaters, and other places
of public amusement," and making it a crime to violate that right).
28 This case therefore does not present the question framed by the court
below (see, e.g., Pet. App. 97a), namely, when, if ever, Section 5 legislation
may address private conduct in the absence of a congressional finding of
unconstitutional state action. Compare United States v. Guest, 383 U.S.
745, 755 (1966) ("rights under the Equal Protection Clause itself arise
only where there has been involvement of the State or one acting under the
color of its authority," which "is not to say, however, that the
involvement of the State need be either exclusive or direct"), with
id. at 762 (Clark, J, concurring) ("§ 5 empowers the Congress
to enact laws punishing all conspiracies-with or without state action-that
interfere with Fourteenth Amendment rights"), and id. at 782 (Brennan,
J., dissenting) (same).
29 For similar reasons, Section 13981 does not suffer from the defects that
the Court perceived in the Patent Remedy Act, which was held in Florida
Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119
S. Ct. 2199 (1999), not to be permissible Section 5 legislation. In Florida
Prepaid, the Court emphasized that "Congress identified no pattern
of patent infringement by the States, let alone a pattern of constitutional
violations." Id. at 2207. Congress did identify a pattern of constitutional
violations in enacting Section 13981. Moreover, in Florida Prepaid, the
Court noted the Patent Remedy Act's "indiscriminate scope," which
would expose a State to liability for "[a]n unlimited range of state
conduct." Id. at 2210. Section 13981 does not operate against the States
at all. And Section 13981 narrowly defines the private conduct that may
give rise to liability. See 42 U.S.C. 13981(d) and (e).
APPENDIX
STATUTORY PROVISIONS
42 U.S.C. 13981 provides:
Civil rights
(a) Purpose
Pursuant to the affirmative power of Congress to enact this part under section
5 of the Fourteenth Amendment to the Constitution, as well as under section
8 of Article I of the Constitution, it is the purpose of this part to protect
the civil rights of victims of gender motivated violence and to promote
public safety, health, and activities affecting interstate commerce by establishing
a Federal civil rights cause of action for victims of crimes of violence
motivated by gender.
(b) Right to be free from crimes of violence
All persons within the United States shall have the right to be free from
crimes of violence motivated by gender (as defined in subsection (d) of
this section).
(c) Cause of action
A person (including a person who acts under color of any statute, ordinance,
regulation, custom, or usage of any State) who commits a crime of violence
motivated by gender and thus deprives another of the right declared in subsection
(b) of this section shall be liable to the party injured, in an action for
the recovery of compensatory and punitive damages, injunctive and declaratory
relief, and such other relief as a court may deem appropriate.
(d) Definitions
For purposes of this section-1
(1) the term "crime of violence motivated by gender" means a crime
of violence committed because of gender or on the basis of gender, and due,
at least in part, to an animus based on the victim's gender; and
(2) the term "crime of violence" means-
(A) an act or series of acts that would constitute a felony against the
person or that would constitute a felony against property if the conduct
presents a serious risk of physical injury to another, and that would come
within the meaning of State or Federal offenses described in section 16
of title 18, whether or not those acts have actually resulted in criminal
charges, prosecution, or conviction and whether or not those acts were committed
in the special maritime, territorial, or prison jurisdiction of the United
States; and
(B) includes an act or series of acts that would constitute a felony described
in subparagraph (A) but for the relationship between the person who takes
such action and the individual against whom such action is taken.
(e) Limitation and procedures
(1) Limitation
Nothing in this section entitles a person to a cause of action under subsection
(c) of this section for random acts of violence unrelated to gender or for
acts that cannot be demonstrated, by a preponderance of the evidence, to
be motivated by gender (within the meaning of subsection (d) of this section).
(2) No prior criminal action
Nothing in this section requires a prior criminal complaint, prosecution,
or conviction to establish the elements of a cause of action under subsection
(c) of this section.
(3) Concurrent jurisdiction
The Federal and State courts shall have concurrent jurisdiction over actions
brought pursuant to this part.
(4) Supplemental jurisdiction
Neither section 1367 of Title 28 nor subsection (c) of this section shall
be construed, by reason of a claim arising under such subsection, to confer
on the courts of the United States jurisdiction over any State law claim
seeking the establishment of a divorce, alimony, equitable distribution
of marital property, or child custody decree.
1 So in original. The word "means" probably should appear after
"(A)" below.
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