Amicus Curiae Brief — United States v. Morrison

, Bupreme Court, U.S.

FILED

NOV 12 1999

Cy @ Desice OF THE CLERK

Nos. 99-5, 99-29

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES OF AMERICA, PETITIONER

V.

ANTONIO J. MORRISON, ET AL., RESPONDENTS

CHRISTY BRZONKALA, PETITIONER

V.

ANTONIO J. MORRISON, ET AL., RESPONDENTS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF LAW PROFESSORS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

Of Counsel

Bruce Ackerman Amy Schulman*

Jack M. Balkin Piper Marbury

Vicki C. Jackson Rudnick & Wolfe LLP

Frank I. Michelman 1251 Avenue of the

Judith Resnik Americas

New York, NY 10020-1104

212/835-6000

*Counsel of Record

INTERESTS OF THE AMICI CURIAE

INTRODUCTION AND SUMMARY

een I. _VAWA Is AN APPROPRIATE EXERCISE OF THE

Geer eee ee . COMMERCE CLAUSE POWER TO PROTECT THE NATION’S

bigs iy A. ECONOMY FROM INJURIES RESULTING FROM VIOLENCE

A. The Commerce Clause Empowers Congress To

C. Upholding VAWA Will Open No Constitutional

eS nnn SESS o> Rapes, Congas

Sought To Advance A Traditional Federal Interest

Z Freeing Commerce From Injuries Inflicted By Specific

D. When Congress

To Address A Problem Of National Import, The

Court Must Be Careful Not To Intrude Lest It Violate

il

Page(s)

Il. THE VIOLENCE AGAINST WOMEN ACT IS AN

APPROPRIATE EXERCISE OF CONGRESS’ POWERS TO

ENFORCE THE FOURTEENTH AMENDMENT ...........:20000eeeeeeee 18

A. Congress Found Pervasive and Entrenched

Patterns of Sex Discrimination in State Criminal

Jrastic’ Sy stewes ...00.0:.cccccscossecssosenssesesssssesesssssasmmanennennies 18

B. Failure to Provide Women Equal Protection

from Assault is a Core Violation of the Equal Protection

CRIIID occcccccccccccccesestoccssseccocsusuensnietiaanieiaaaannee 23

C. The Civil Rights Remedy is Well Within

Congress’ Broad Power to Remedy Violations of the

Fourteenth Amendment ...............scssesscessscessesseeesensseees 25

1. The Civil Rights Remedy is Not a

Pretext for Independent Congressional Interpretation

Of the ComstitithG tt ..ccccccccssesccssscesessemenevsnnntemmmiiaa 25

2. Congress Sought to Work in Partnership

with the States in Remedying Constitutional Violations

While Respecting the States’ Primary Role in Criminal

Law Enforcement, and Narrowly Tailored the Civil

Rights Remedy to Achieve These Ends................. 26

3. The Civil Rights Remedy in VAWA

Is National Because It Deals With a National

1 EE eee 29

CONCLUSION ...cccccoscscsnsccescescsosesssesesseensntiinssisininnnananane 30

ADDENDUM

(Listing of Amici Law Professors) ..............ssseeereneneeees 1A

a ee ae

ill

TABLE OF AUTHORITIES

CASES CITED: Page(s)

Ankenbrandt v. Richards, 504 U.S. 689 (1992) .......cccccccce. 14

Arlington Heights v. Metropolitan Hous. Dev. Corp.,

EE 24

Carter v. Carter Coal Co., 298 U.S. §238 (1936) ......cc000. 16

City of Boerne v. Flores, 521 U.S. 507 (1997) .o...cccccccce 2, 4,

SS “5, 16, 23, 25, 26, 29

College Sav. Bank v. Florida Prepaid Postsecondary Educ.

Expense Bd., 119 S. Ct. 2219 (1999) ooo... 25, 28

Davis v. Monroe County Bd. of Educ., 119 S. Ct. 1661

EE 11

Employment Div. v. Smith, 494 U.S. 872 (1990) ........cccc00. 26

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 119 S. Ct. 2199 (1999)........ 16, 28

Frontiero v. Richardson, 411 U.S. 677 (1973) .....cccccccccccoeee 24

Goesart v. Cleary, 335 U.S. 464 (1948) .......cccccccccccceceeeeeeeees 8

Hammer v. Dagenhart, 247 U.S. 251 (1918) .....cccccccccccceeeeee 16

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241

EEE 3, 5,6, 7

J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 (1994) .......... 24

Katzenbach v. Morgan, 384 U.S. 641 (1966) ..........ccccccee. 25

Katzenbach v. McClung, 379 U.S. 294 (1964) ........ 3, 6,7, 15

Loving v. Virginia, 388 U.S. 1 (1967) ............cccccccccceceeeesenee 24

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)............ 17

McCulloch v. Maryland, 17 U.S. 316 (1819)... 15, 18

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)

SE A ee 2, 5,6

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986).........0000... 11

Mississippi Univ. for Women v. Hogan,

eT 24

Oregon v. Mitchell, 400 U.S. 112 (1970) .........cccccccccccceee 29

a ee ry Sr is I CUO crccnecttnecnecersecsnssessnsssnseeneness 24

iv

Table of Authorities (continued) Page(s)

Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979)

ccianicarntieainaiamemaiamiaiinatnaainataataiaiuiiasaimeaatialisaeiiia 24

Planned Parenthood v. Casey, 505 U.S. 833 (1992).....11, 24

NN yyy 8

South Carolina v. Katzenbach, 383 U.S. 301 (1966)........... 25

United States v. Darby, 312 U.S. 100 (1941)..........cccccceeeees 16

United States v. Lopez, 514 U.S. 549 (1995) .........-.+. 2, 3, 5, 6

sneneinaientananiiinatteasiasiaaiemesmesimmisiannimamamaiaiaias 7, 12, 13, 16, 17

United States v. Virginia, 518 U.S. 515 (1996) ..............00-+ 24

Washington v. Davis, 426 U.S. 229 (1976)..........ceeeeeeeenees 24

LOWER COURT CASES IDENTIFIED FOR THE INFORMATION OF

THIS COURT:

Anisimov v. Lake, 982 F. Supp. 531 (N.D. Ill. 1997)........... 13

Avila-Franco v. Worrell, 1998 U.S. Dist. LEXIS 12129

Ol.) 13

Bell v. Cuyahoga Community College, 1998 Ohio App.

LEXIS 3741 (Ohio Ct. App. 1998) .............:ccccceesees 14

BF. v. Smith, 1998 Minn. App. LEXIS 300 (Minn. Ct. App.

a 14

Braden v. Piggly Wiggly, 4 F. Supp. 2d 1357 (M.D. Ala.

— 13

Bridges v. City of Dallas, 1998 U.S. Dist. LEXIS 8925 (N.D. Tex

| 14

Crisonino v. New York City Housing Auth., 985 F. Supp. 385

0 OEE 14

Culberson v. Doan, 1999 WL 765970 (S.D. Ohio 1999)............ 14

Doe v. Hartz, 970 F. Supp. 1375 (N.D. lowa 1997) ............ 14

Doe v. Old Rochester Regional Sch. Dist., 56 F. Supp. 2d

CO Oe 14

Doe v. Walker, 1999 U.S. App. LEXIS 24625

Ce 8 ee 14

Ericson v. Syracuse Univ., 35 F. Supp. 2d 326, 45 F. Supp.

Pe 8 A en 14

ge reg Oe ua em ee

v

Table of Authorities (continued) Page(s)

Finley v. Higbee Co., 1998 U.S. Dist. LEXIS 21010 (N.D.

RSA Reeves ee aE See STON 13

Grace v. Thomason Nissan, 1999 U.S. Dist. LEXIS 12711

Ee ae 13

Gross v. Weber, 186 F.3d 1089 (8" Cir. 1999)... 14

Harris v. Zappan, 1999 U.S. Dist. LEXIS 8404 (E.D. Pa.

STI cicitsedestittesiascttiitnetntatintenienenitiy nseasiidteaditnainvhicentnee 14

Henderson v. Heartland Press Inc., 1999 U.S. Dist. LEXIS

| SAT eae 13

Kuhn v. Kuhn, 1999 U.S. Dist. LEXIS 11010 (N_D. Ill. 1999)

-shneaeeeiemenattdnetasdeedbesdutedanianatdemesinemnbveusssnivenbinenincinecsbelitn 14

Liu v. Striouli, 36 F. Supp. 2d 452 (D.R.1. 1999)... 14

Manikhi v. Mass Transit Admn., 733 A. 2d 372 (Md. Ct. Spec.

Gy eiicriisicibtikiceininstsenipentldbtethcesbisaihinntainsitien states 13

Mattison v. Click Corp., 1998 WL 32597 (E.D. Pa. 1998) ......... 13

McCann v. Rosquist, 185 F.3d 1113 (10h Cir 1999)... 13

Newton % Cone Cole Bottling Co., 958 F. Supp. 248 (W.D.N.C.

D> cuasbsnessnstesguemessussecnstpsmnenapenmtemassmmsttnnpeneseutseumessianes 13

Palazzolo v. Ruggiano, 993 F. Supp. 45 (D.R.I. 1998) ...cc00000.-... 14

Randa Truong v. Smith, 28 F. Supp. 2d 626 (D. Colo. 1998)....... 13

Thomasson v. United States, 1999 U.S. Dist LEXIS 13534

he 14

Thorpe v. Virginia State Univ., 6 F. Supp. 2d 507

EAS 14

Wesley v. Don Stein Buick, 42 F . Supp.

EE eC 14

Williams v. Bd. Of County Comm'rs, 1999 U.S. Dist.

Be Bh LY 14

Whitaker v. Mercer County, 1999 U.S. Dist. LEXIS

I I sieicceeicindibniclnnctnbhimensteindis -dliliaiiamaemeseamee 13

et

vi

Table of Authorities (continued) Page(s)

STATUTES:

2B U.S.C. § 1445 (A) ...220000000020--cccccrceccercrercenrreresensrenreeresessesssessesoess 2

42 U.S.C. $§ 1393 1-14040..................cccccsrrcecrerccesersrsesssssosessesseooess ]

42 U.S.C. § 1FGBI ..222000ccccvceccsecseccseseressecrrecveessesssoesoessoonsssssosees 1, 26

42 U.S.C. § 1FDBUA) ....22000000202-.0scerrcevreccrerceesseersesesescsnssnsssessssessoes 2

42 U.S.C. § 1SDB1CE(1)....0222200--cevcrcercrecereeereererseresenessorerssssosesosecs 29

42 U-S.C. § 139810) 1),(4) ...-------eceerccecersersenressesssenssnnenscenesnnsenenes 2

ALA. CODE §§ 13A-6-61(a) (1999) .........cccccccccecseeeeeeeeeneennensenenes 21

ALA. CODE §§ 13A-6-62(a) (1999) ..........-cccccececeeererseeeeneneneneenenes 21

GA. CODE ANN. § 16-6-1(a) (1999)........-.c-ccccccceeseeeseeneeeneeneeenenes 21

IDAHO CODE § 18-6101 (1999) ........cccccccceeceeseeeeeeeeneneeeeseeneenennes 21

TREATISES, BOOKS AND ARTICLES:

JOSEPH R. BIDEN, SAFER STREETS, SAFER HOMES (Sept. 1999)

cenciatanpaammmasnsstiammssaataaiiimiammncstisiniiiiiailidnsaniibiiine 27

Boris I. BITKER, BITKER ON THE REGULATION OF INTERSTATE

AND FOREIGN COMMERCE (1999)...........ccccceccseceeeeeneesees 16

Jennifer Gaffney, Amending the Violence Against Women Act:

Creating a Rebuttable Presumption of Gender Animus in

Rape Cases, 6 J.L. & POL’ Y 247 (1991)......-..-reseseeeeneees 20

Jill Hasday, Federalism and the Family Reconstructed, 45 UCLA

8 (EEE 24

Vicki C. Jackson, Federalism and the Uses and Limits of Law:

Printz and Principle?, 111 HARV. L. REV. 2180 (1998) 12

Antony Barone Kolenc, Commerce Clause Challenges After

United States v Lopez, 50 FLA. L. REV. 867 (1998)....... 17

Del Martin, Battered Wives (1976)...............sesseesereeneneeneneennees 20

Reva B. Siegel, ‘The Rule of Love’: Wife Beating as Prerogative

and Privacy, 105 YALE L.J. 2117 (1996) ................. 19, 20

JACOBUS TENBROEK, EQUAL UNDER LAW (1965).........-.0000000000- 24

SORES ORT MR aS ieee ee” eRe

Vii

Table of Authorities (continued) Page(s)

MISCELLANEOUS:

CONGRESSIONAL QUARTERLY ALMANAC, 103d Cong., 2d sess.

EE 27

137 Cong. Rec. H29230 (daily ed. 1991) o...........cccceceseseeeeeeseeeeeeees 9

Crimes of Violence Motivated By Gender, Hearing Before the

Subcomm. on Civil and Constitutional Rights of the

House Comm. on the Judiciary, 103d Cong., st Sess.,

Fay Wii ti cctncnenernscoctnteteneinsnaniinetnecemensineasniinntaniniess 27

Hearing on Domestic Violence: The Need to Concentrate the

Fight Against an Escalating Blight of Violence Against

Women, Hearing Before the Senate Comm. on the

Judiciary, 103d Cong., Ist Sess., Feb. 1, 1993 ........0.00.... 8

H.R. Conf. Rep. No. 103-711 (1994) ..00.0.0.00.0ccccccccescsseeeeeneen 11, 23

Kentucky Task Force on Gender and Fairness in the Courts 28

ETRE EE A A nS ES ESE LR ae aR 22

Majority Staff Report, Senate Comm. on the Judiciary, 103d

Cong., Ist Sess., The Response to Rape: Detours on the

Road to Equal Justice 14 (Comm. Print 1993) .............. 16

MODEL PENAL CODE § 213.11) (1980) ..0020...0...cccccecesceceeeeeeeeees 21

Report of the Illinois Task Force on Gender Bias in the Courts

EEO. Sco eae St eee 22

Report to the Supreme Court of Georgia by the Commission on

Gender Bias in the Judicial System 103 (1991).............. 22

S. Rep. No. 102-197 (1991) ..........ccccccecseeseeceeeeeseeee 9, 17, 19, 20, 22

S. Rep. No. 103-138 (1993) .00......ccccceccesceeeee 3, 11, 19, 20, 23, 27

Utah Task Force on Gender and Justice 60 (1990)............0c000000-. 22

Violence Against Women, Hearing Before the Subcomm. on

Crime and Criminal Justice of the House Comm. on

the Judiciary, 102d Cong. 2d Sess., Feb. 6, 1992

svmemspneianttilipesiiieinasdniaiinantmcmmasiiatiantainaineniopebaanedn 10, 11, 18, 20

Violence Against Women: Fighting the Fear, Examining the Rise

of Violence Against Women in the State of Maine and

Other Rural Areas, Hearing Before the Senate Comm. on

the Judiciary, 103d Cong. |st Sess., Nov. 12, 1993

Viil

Table of Authorities (continued) Page(s)

Violence Against Women, Victims of the System: Hearing Before

the Senate Comm. on the Judiciary, 102d Cong., | st Sess.,

Age. D, BGP ..ncccosccrscsscsesssessscsscssosccsnssosscsoosssees 9, 10, 15, 27

Violent Crimes Against Women: The Problems of Violence

Against Women in Utah and Current Remedies,

Hearing Before the Senate Comm. on the Judiciary, 1034

Cong., Ist Sess., Apr. 13, 1993 .........ccccscessesereeeessereneenees 1]

Women and Violence, Hearing Before the Senate Comm. on the

Judiciary, 101St Cong., 2d Sess., Jun. 20, 1990.............. 10

OO ee Se ee ek

weer

———

l

BRIEF OF LAW PROFESSORS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

INTERESTS OF THE AMICI CURIAE

This case brings into play two of our basic

constitutional commitments: first, to a federal system that

both guarantees the States a major role and gives Congress

broad responsibility over interstate commerce, and second,

to a nationwide guarantee that all persons enjoy the equal

protection of the laws. Amici, law professors (identified in

an addendum below) who teach and write about

constitutional law, the federal courts or jurisprudence, will

discuss how the Violence Against Women Act (VAWA)

civil rights remedy is an apt response to the combined

demands of these constitutional commitments.'

INTRODUCTION AND SUMMARY OF ARGUMENT

In 1994, Congress enacted VAWA, a multi-faceted

statute responding to the inequality that women victims of

violence encounter in state justice systems and to the

economic injuries that this violence creates. The statute

provides funding to the states for criminal law enforcement

against perpetrators of violence, and for a variety of other

assistance. See generally 42 U.S.C. §§13931-14040. The

provision at issue here, Section 13981, creates a new federal

civil rights remedy for victims of violence resulting from

“animus based on the victim’s gender.”

' Consent has been given by the four parties to amici to file this brief.

In accord with Rule 37.6, no counsel for a party has authored the brief in

whole or in part nor has any one but amici and their counsel funded its

2

Unlike recent legislation invalidated by this Court,

the new civil rights remedy was enacted after four years of

deliberate congressional consideration of the ways violence

against women implicated two of Congress’ basic

constitutional responsibilities: to protect interstate commerce

and guarantee equal protection. Much of the evidence came

from state officials, and specifically state judiciaries, which

reported that state and local police, prosecutors and judges

were not yet providing equal protection for women.

Congress responded with substantial funding resources for

the states, but concluded that a supplemental civil rights

remedy was also necessary. This provision was drafted and

redrafted to respond to concerns of both state and federal

judges that state courts remain the adjudicators of domestic

relations law. Congress narrowed the statutory cause of

action to the most serious offenses, prohibited supplemental

jurisdiction over any state law claims involving divorce,

alimony or child custody, and denied removal of state

claims. See 42 U.S.C § 13981(d), (e)(1), (4); 28 U.S.C. §

1445 (d).

Creation of this civil rights remedy is well within

Congress’ powers under the Commerce Clause and the

Fourteenth Amendment. It is respectful of the federalism

principles articulated by this Court in United States v. Lopez,

514 U.S. 549 (1995) and City of Boerne v. Flores, 521 U.S.

507 (1997). It is consistent with long-established

constitutional allocations of powers to the federal courts and

the Congress. It should be upheld.

I. The national government has power, under the Commerce

Clause, to protect interstate and foreign commerce from

injurious obstructions, whatever their source, so long as the

regulated activities “substantially affect” commerce. Lopez,

514 U.S. at 559; see NLRB v. Jones & Laughlin Steel Corp.,

7

i,

3

301 U.S. 1, 37 (1937). Since the 1960s, this Court and the

Congress have recognized the need to protect the national

economy from the injurious effects of discrimination that

disable members of historically subordinated groups from

participating fully in national economic life. Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964);

Katzenbach v. McClung, 379 U.S. 294 (1964). Congress

called on this power to enact VAWA.

Through its many hearings, Congress _ identified

specific harms to interstate commerce that amply satisfied

the Lopez requirement of a “substantial effect” on interstate

commerce. Extensive evidence from business organizations,

mental health professionals and individuals made plain that

the special hazards of violence faced by women limited their

choices, affecting the jobs women took, and the times, hours,

and places they worked. Violence against women harmed

the national economy in terms of workplace productivity,

the dollars lost to absenteeism, and health care costs. The

record fully supports the conclusion that violence against

women “restricts movement [and] reduces employment

opportunities.”

Unlike the statute in Lopez, VAWA’s civil remedy is

based on a well-identified and substantiated need to protect

commerce from the injurious effects of an environment of

violence against a “quasi-suspect” class of persons, women,

long treated by law and still treated by many as less than

fully deserving of participation in economic life. Congress’

approach is limited; it made no claim to general police

powers nor did it “federalize” criminal or tortious acts based

on some speculative and remote economic impact.

2 §. Rep. No. 103-138, 54-55 (1993).

4

In reviewing the extensive factual basis established

for congressional action, the Court must take care not to

initiate a new era of judicial second-guessing of matters

properly for the legislature. Such an enterprise has no limits

or boundaries. Rather than embark on a boundless oversight

role, this Court should respect Congress’ decision to protect

the Nation’s economy from injuries that spring from gender-

based threats of violence.

Il. Congress’ extensive record demonstrates that state

criminal justice systems deny women equal protection of the

laws in the most fundamental sense: States fail to treat

violent assaults against women as seriously as they treat

violent assaults against men. Until recently, states regulated

rape and domestic violence in explicitly sex-based terms; and

Congress learned that this understanding of rape and

domestic violence as assaults on women remains pervasive.

Numerous witnesses and studies commissioned by the state

judiciaries reported that official responses to violence

continue to be shaped by stereotypical thinking. From the

initial report to the police through prosecution, trial and

sentencing, state actors take crimes against women less

seriously than other crimes. This differential treatment

violates the core command of the Equal Protection Clause:

that women are entitled to the same protection from assault

as men enjoy.

In creating VAWA’s civil rights remedy, the

Congress sought to enforce -- not to revise -- the core

guarantees of the Equal Protection Clause. The exercise of

this enforcement power raises none of the concerns

addressed in City of Boerne v. Flores. The basic purpose of

the Court’s proportionality test was to prohibit pretextual

uses of the enforcement power. Where there is no evidence

of pretext, Congress’s remedial powers under the Fourteenth

5

Amendment are broad and Congress is entitled to “wide

latitude” to design effective remedies. See Boerne, 521 U.S.

at 520.

Congress’ decision to create a civil remedy is

consistent with its larger purpose in enacting VAWA: to

work in partnership with the States to eradicate historic

forms of bias against women. Creating new damage or

injunctive remedies against the states or their officers might

have discouraged federal-state cooperation and interfered

with the everyday administration of criminal justice. By

contrast, VAWA’s narrowly crafted civil remedy encourages

state and local governments to work with victims of gender

motivated violence, leaving states as the primary guarantors

of protection of their citizens from violent assaults.

ARGUMENT

I. VAWA Is AN APPROPRIATE EXERCISE OF THE

COMMERCE CLAUSE POWER TO PROTECT THE NATION’S

ECONOMY FROM INJURIES RESULTING FROM VIOLENCE

DIRECTED AT WOMEN.

This Court recognizes that Congress does not have a

general police power. It cannot regulate simply because of a

remote or slight relationship between a local activity and the

national economy. United States v. Lopez, 514 U.S. 549

(1995). But Congress can fully protect interstate and foreign

commerce from injurious obstructions as long as the

regulated activities have a substantial effect on commerce.

In its “watershed case” of NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1 (1937), this Court concluded that

Congress’ Commerce Clause “power is plenary and may be

> United States v. Lopez, 514 U.S. 549, 555 (1995).

6

exerted to protect interstate commerce ‘no matter what the

source of the dangers which threaten it.”” Jones & Laughlin,

301 U.S. at 37 (citing Second Employers’ Liability Cases,

223 U.S. 1, 51). Acting under this authority, Congress has

long protected the Nation’s economy from the injurious

effects of discrimination against racial minorities and

women.

A. The Commerce Clause Empowers Congress To

Protect The Economy From Injuries Stemming from

Discrimination.

By the 1960s, both the Congress and the Court came

to understand that one “‘source of the dangers which

threaten’” commerce, Jones & Laughlin, 301 U.S. at 37, is

discrimination. See Heart of Atlanta Motel v. United States,

379 U.S. at 257; Katzenbach v. McClung, 379 U.S. at 300-

01. The Court did not uphold the challenged anti-

discrimination laws because of the “insignificant” amounts

of food purchased in interstate commerce, McClung, 379

U.S. at 300-01, but because systematic, invidious

discrimination itself harms interstate commerce.‘ This same

power provides ample constitutioual foundation for the civil

rights remedy of VAWA.

In affirming Congress’ leading role in addressing

such discriminatory barriers, the Court described the record

before Congress as “replete with testimony of the burdens

placed on interstate commerce by racial discrimination in

* As the Court noted, the “absence of direct evidence connecting

discriminatory restaurant service with the flow of interstate food [on

which appellees had relied], given the evidence as to the effect of such

practices on other aspects of commerce” was not crucial. McClung, 379

U.S. at 304-05.

a

7

restaurants,” including lowered per capita spending by the

victims of the discrimination, the effect of discrimination in

discouraging travel, and the deterrence to professional and

skilled people moving into areas where such practices

occurred. McClung, 379 U.S. at 299-300. Likewise, Heart

of Atlanta Motel upheld the statute because of the

“overwhelming evidence of the disruptive effect that racial

discrimination has had on commercial intercourse.” 379 U.S.

at 257. As the Court explained,

“It was this burden which empowered

Congress to enact appropriate legislation, and

given this basis for the exercise of its power,

Congress was not restricted by the fact that

the particular obstruction to interstate

commerce . . .was also deemed a social and

moral wrong.” /d.

This history, recognized in Lopez, confirms that

Congress has the power to protect the national economy from

the injurious effects of pervasive discrimination that blocks

historically subordinated groups from equal participation in

national economic life. This well-settled constitutional

doctrine is now woven into the fabric of our national life and

public commitments.

B. Congress Acted On A Compelling Record

Showing Direct and Substantial Injuries to Commerce.

The evidence before Congress reflected a pattern of

gender motivated violence that was part of a framework of

law and practice discriminating against women persisting

into the modern era.’ In hearings around the country,

> For example, state laws prohibited women from entering particular

congressional committees learned how such violence

prevents women from competing with men for jobs and

income in the marketplace.

Several organizations presented data detailing the

barriers. James Hardeman, a Manager in the Polaroid

Corporation, described the workplace disruption and poor

job performance caused by violence against female

employees. He explained how the creation of workplace-

based counseling groups responded to battering -- when

violence against women stopped, women “secured better

jobs” in the company.°

The President of the National Federation of Business

and Professional Women (a bipartisan organization of

120,000 members) described the “enormous” “costs in lost

employment opportunities” to women victims of violent

assault:

“Violent crimes committed against

women employees directly impact their -

ability to perform at work, their absenteeism

rates and the medical benefit costs to the

employer. . . .{[W]omen find their employment

professions, see, e.g., Goesart v. Cleary, 335 U.S. 464 (1948) (upholding

state law excluding women from bar-tending) and provided legal

preferences to husbands over wives in various capacities, see, e.g., Reed

v. Reed, 404 U.S. 71 (1971) (invalidating preference for male over

female executors). For discussion of sex-based laws regulating sexual

assaults, see infra at 18-23.

° See Hearing on Domestic Violence: The Need to Concentrate the

Fight Against an Escalating Blight of Violence Against Women, Hearing

Before the Senate Comm. on the Judiciary, 103d Cong. 16 (Feb. 1, 1993)

(statement of James Hardeman, Manager, Counseling Department,

Polaroid Corp.) [hereinafter Senate Hearing 1993}

9

options in life sharply reduced.”

See also Senate Hearing 1993 at 241 (discussing constraints

on women’s employment because of fear of violence when

using public transportation). The Federation also detailed

the high rates at which raped women left their jobs, how men

prevented women from leaving their homes to go to work,

and how violence against college-aged women impaired their

ability to pursue an education, thereby reducing their

economic opportunities.*

’ Violence Against Women: Victims of the System, Hearing on S. 15

Before the Senate Comm. on the Judiciary, 102d Cong. 239-41 (Apr. 9,

1991) (statement of Elizabeth Athanasakos, National President, Nationa!

Federation of Business and Professional Women, Inc.) [hereinafter

Senate Hearing 1991)

. Congress also received evidence that as many as 3-4 million women

a year were victims of domestic violence, 137 Cong. Rec. H. 20, 29230

(1991) (Rep. McDermott), and that survey data showed that 9.3% of

abused women reported taking time off from their jobs because of

domestic violence. See Senate Hearing 1991, supra note 7, at 240

(statement of National Federation of Business and Professional Women).

See also S. Rep. No. 102-197, at 53 (1991) (noting studies reporting that

almost 50% of rape victims lose their jobs or must quit because of the

severity of the crime).

10

Many victims of sexual assault reported difficulties in

keeping or finding employment.’ The Commission on the

Status of Women of New York City reported that

“The economy, and therefore everyone's

standard of living are affected in numerous

ways when women are the victims of

violence. . .when women do not accept jobs

because they fear the hours they would need

to work would be too risky . . .”””

Congress learned of other adverse effects on the

national economy. The National Federation of Business and

Professional Women emphasized the substantial adverse

effect of violence against female employees on small

businesses.'' Witnesses estimated that businesses lost $3-5

billion annually “due to absenteeism” and loss of

productivity related to violence against women." Physicians

testified, for example, that at least 37% of female hospital

° ‘See, e.g, Senate Hearing 1991, supra note 7, at 131-33 (testimony

of Amy Kaylor, from Toledo, Ohio), Violence Against Women: Fighting

the Fear, Examining the Rise of Violence Against Women in the State of

Maine and Other Rural Areas, Hearing Before the Senate Comm. on the

Judiciary, 103d Cong. 13-17 (Nov. 12, 1993) (testimony of Lisa);

Violence Against Women, Hearing Before the Subcomm. on Crime and

Criminal Justice of the House Comm. on the Judiciary, 102d Cong. 55-

58 (Feb. 6, 1992) (testimony of Jane Doe of New York City) [hereinafter

1992 House Subcomm. Hearing}.

'© 1992 House Subcomm. Hearing, supra note 9, at 116 (statement of

New York City Commission on the Status of Women); see id at 117

(also noting harm to economy when women “cannot work because of

possessive/abusive spouses, or they are limited to working in places

where the spouse can maintain control or contact” ).

'! Senate Hearing 1991, supra note 7 at 239-40.

'2 See id. at 240; Women and Violence, Hearing Before the Senate

Comm. on the Judiciary, \0\st Cong. 58 (Jun. 20, 1990) (statement of

Helen R. Neuborne, Exec. Dir., NOW Legal Defense & Educ. Fund).

1]

emergency room cases are due to abuse, and Representatives

learned of the Surgeon General’s conclusion that “battery is

the single largest cause of injury among women.”” Health

care costs, by some estimates, were $5-10 billion per year."

In sum, as the Senate Judiciary Committee reported,

the prevalence of violence against women in the United

States “restricts movement [and] reduces employment

opportunities” for women. S. Rep. 103-138, at 54 (1993)."

The conclusion Congress reached—that violence against

women, directed at them as women, harms the national

economy by preventing women’s equal participation, id—is

one that should come as no surprise to this Court, which has

reviewed the harmful effects of gendered violence in a

variety of settings."

"See Violent Crimes Against Women: The Problems of Violence

Against Women in Utah and Current Remedies, Hearing before the

Senate Comm. on the Judiciary, 103d Cong. 74 (Apr. 13, 1993)

(statement of Dr. John Nelson, Deputy Director, Utah Dept of Health);

1992 House Subcomm. Hearing, supra note 9 at | (statement of Rep.

Schumer).

‘* Majority Staff Report, Senate Comm. On the Judiciary, 103d Cong.,

Ist sess., The Response to Rape: Detours on the Road to Equal Justice

14 (Comm. Print S. 103-147, 1993) (citing article in American Medical

News).

'° See H.R. Conf. Rep. No. 103-711, at 385 (1994) (violence against

women “deter[s] potential victims from traveling interstate, from

engaging in employment in interstate business, and from transacting with

business . . . in interstate commerce” with “substantial adverse effect on

interstate commerce. . . diminishing national productivity [and]

increasing medical and other costs’).

'° See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (sexual

harassment in workplace); Davis v. Monroe County Bd of Educ., 119 S.

Ct. 1661 (1999) (assaultive behavior toward schoolgirl). In Planned

Parenthood v. Casey, 505 U.S. 833 (1992), the Court noticed the

relationship between women’s freedom from physical violence in the

most intimate spheres of their lives and their ability to participate with

12

C. Upholding VAWA Will Open No

Constitutional Floodgates Because, In Contrast to Lopez,

Congress Sought To Advance A Traditional Federal

Interest -- Freeing Commerce From Injuries Inflicted By

Specific Patterns of Discriminatory Conduct.

Lopez does not question Congress’ power to identify

and respond to obstructions to commerce. The Gun Free

School Zones Law invalidated in that case was the subject of

a single hearing, at which constitutional questions about

Congress’ power were raised but not addressed. The

government’s brief did not suggest that Congress had

actually considered the relationship between schoolyard

violence and the national economy.’’ And the government

defended the statute with a generic ‘cost of crime rationale’

that provided no way to delimit the range of permissible

exercises of the federal commerce power over crime.

In contrast, when enacting VAWA, Congress

undertook a serious effort at determining the economic

effects of harms from discrimination, an area in which

federal regulatory power is well-established. The legislative

record leaves no doubt that Congress had a more than

equality in the national economy, striking down a spousal notification

provision in part because of its potential for violence. This Court

explained that “for two decades of economic and social developments”

people had made choices in reliance on the availability of abortion, and

that women’s “ability . . . to participate equally in the economic and

social life of the Nation has been facilitated by their ability to control

their reproductive lives.” /d. at 856.

'7 See Vicki C. Jackson, Federalism and the Uses and Limits of Law:

Printz and Principle?, 111 Harv. L. Rev. 2180, 2239 & n. 255 (1998)

(describing congressional record and Government's Brief in Lopez).

13

“rational” basis on which to conclude that violence against

women had very substantial effects on interstate commerce.

The detailed findings and extensive legislative record make

more than plain to the “naked eye,” Lopez, 514 U.S. at 563,

the injurious effects to the national economy resulting from

past failures to deter, prevent and penalize violence against

women.

Unlike the broadreaching relationship between

violence and the economy asserted in Lopez, VAWA

addresses a circumscribed arena. The direct effects of

violence against women on their participation in the national

economy were thoroughly documented—grown women lost

jobs, time from work, economic opportunities. By contrast,

the link between gun possession near schools to the national

economy seemed remote to this Court, built on a long chain

of assumed events.

Upholding VAWA will not “open the floodgates” to

an unlimited congressional power to federalize civil and

criminal law. To date, counsel have identified only 51 cases

with reported decisions in which plaintiffs asserted civil

claims under VAWA, and of these 23 (or 45%) involve

workplace (14/51), other commercial (2/51) or educational

(7/51) settings."

1S Cases involving workplace-related claims against employers or other

employees include McCann v. Rosquist, 185 F.3d 1113 (10" Cir 1999);

Henderson v. Heartland Press Inc., 1999 U.S. Dist. LEXIS 16466 (N. D.

lowa 1999); Grace v. Thomason Nissan, 1999 U.S. Dist. LEXIS 12711

(D. Ore. 1999); Whitaker v. Mercer County, 1999 U.S. Dist. LEXIS

14680 (D.N.J. 1999); Manikhi v. Mass. Transit Admin., 733 A.2d 372

(Md. Ct. Spec. App. 1999); Avila-Franco v. Worrell, 1998 U.S. Dist.

LEXIS 12129 (D.D.C. 1998); Mattison v. Click Corp., 1998 WL 32597

(E.D. Pa. 1998); Randa Truong v. Smith, 28 F. Supp. 2d 626 (D. Colo.

1998); Braden v. Piggly Wiggly, 4 F. Supp. 2d 1357 (M.D. Ala. 1998);

14

Finley v. Higbee Co., 1998 U.S. Dist. LEXIS 21010 (N.D. Ohio 1998);

Anisimov v. Lake, 982 F. Supp. 531 (N.D. Ill. 1997); Newton v. Coca-

Cola Bottling Co., 958 F. Supp. 248 (W.D.N.C. 1997), Crisonino v. New

York City Housing Auth., 985 F. Supp. 385 (S.D.N.Y. 1997); Bell v.

Cuyahoga Community College, 1998 Ohio App. LEXIS 3741 (Ohio Ct.

App. 1998). Other commercial settings include Wesley v. Don Stein

Buick, Inc., 985 F. Supp. 1288 (D. Kan. 1997) (claim by customer

against salesman); Palazzolo v. Ruggiano, 993 F. Supp. 45 (D.R.I. 1998)

(claim by patient against psychiatrist). Cases involving educational

settings include this case and Gross v. Weber, 186 F. 3d 1089 (8 Cir

1999) (claim by former student against former teacher); Doe v. Oid

Rochester Regional Sch. Dist., 56 F. Supp. 2d 114 (D. Mass. 1999)

(claim by student against teacher); Liu v. Striouli, 36 F. Supp. 2d 452

(D.R.1. 1999) (claim by graduate student against professor/advisor);

Ericson v. Syracuse Univ., 35 F. Supp. 2d 326, 45 F. Supp. 2d 344

(S.D.N.Y. 1999) (claim by student against coach); Thorpe v. Virginia

State Univ., 6 F. Supp. 2d 507 (E.D. Va. 1998) (claim by student against

student); B.F. v. Smith, 1998 Minn. App. LEXIS 300 (Minn. Ct. App.

1998) (same). Six cases involved claims against police, security or

parole officers, see e.g., Williams v. Bd. of County Commrs, 1999 U.S.

Dist. LEXIS 13532 (D. Kan. 1999); Harris v. Zappan, 1999 U.S. Dist.

LEXIS 8404 (E.D. Pa. 1999). One case involved claims against social

acquaintances, see Doe v. Walker, 1999 U.S. App. LEXIS 24625 (lst

Cir. 1999); one was by a parishioner against a minister, see Doe v. Hartz,

970 F. Supp. 1375 (N.D. lowa 1997); one involved an alleged assault in a

federal prison, see Thomasson v. United States, 1999 U.S. Dist LEXIS

13534 (D. Kan 1999); and one arose from an attack by a stranger, see

Bridges v. City of Dallas, 1998 U.S. Dist LEXIS 8925 (N.D. Tex. 1998).

Fourteen of the 51 cases involved claims against present or former

spouses or boyfriends, see, e.g, Kuhn v. Kuhn, 1999 U.S. Dist LEXIS

11010 (N_D. ill. 1999) (spouse); Culberson v. Doan, 1999 WL 765970

(S.D. Ohio 1999) (boyfriend). (Four of the 51 cases did not have

reported descriptions of the factual settings.)

Of course, assaults outside the workplace can also have a direct

effect on the workplace, and the fact that violence occurs in family

settings, as well as commercial, educational, prison, religious, and social

settings, does not preclude federal jurisdiction. Cf Ankenbrandt v.

Richards, 504 U.S. 689, 704 (1992) (“domestic relations” exception to

federal jurisdiction does not preclude tort action for assaults by father on

children but applies only to divorce, child custody and alimony).

15

As the States’ chief law enforcement officers

recognized in urging Congress to enact VAWA," the federal

and the state governments have concurrent § and

complementary roles to play in this effort. Congress gave

careful attention to federalism concerns in the lengthy

drafting process, designing a civil cause of action that does

not supplant any state remedies, and which limits the federal

remedy to the most egregious instances of gender motivated

violence. No state processes are reorganized by federal

mandate. No state officials’ time or tasks are

commandeered. Establishing a federal remedy against

perpetrators of gender-motivated violence is an appropriate

means of removing barriers to the full and equal participation

of women in the economic life of the nation.”

D. When Congress Deliberately Gathers Facts

To Address A Problem Of National Import, The Court

Must Be Careful Not To Intrude Lest It Violate The

Separation of Powers.

Congress has the primary constitutional responsibility

for developing appropriate responses to national economic

problems. For most of our constitutional history, the Court

'% See Senate Hearings 199], supra note 7 at 37-38 (National

Association of Attorneys General Resolution supporting enactment).

* The absence of a case-by-case inquiry into whether a particular act

of gender motivated violence affects commerce cannot be fatal to the

question of Congress’ power here. For in Katzenbach v. McClung, a

similar argument was made, that Congress should have provided for a

case-by-case determination that “racial discrimination in a particular

restaurant affects commerce.” 379 U.S. at 303. The Court decisively

rejected this contention. “Confronted as we are with the facts laid before

Congress, we must conclude that it had a rational basis for finding that

racial discrimination in restaurants had a direct and adverse effect on the

free flow of interstate commerce. “ /d. at 304.

16

has heeded the words of McCulloch v. Maryland, 17 US.

316, 423 (1819), that “where the law is not prohibited, and is

really calculated to effect any of the objects entrusted to the

government ... to inquire into the degree of [the law’s

necessity] would be to pass the line which circumscribes the

judicial department, and to tread on legislative ground.””'

When Congress began to respond to the economic challenges

of late 19" and early 20" centuries, the Court repeatedly

overturned legislation, asserting categorical limits on the

commerce power.” Judicial attempts to constrain

congressional development of economic policy came to a

close in the late 1930s and 1940s, as the Court came to defer

to Congress’ superior capacity to define and respond to a

wide range of problems with a significant impact on the

national economy.

In the last decade, the Court has increased its scrutiny

of the basis for congressional action. Unsupported assertions

of a national interest, see Lopez, 514 U.S. at 567, pretextual

justifications to support action actually aimed at a goal

outside of national power, see Boerne, 521 U.S. at 532, or

de minimis examples of a potential problem not yet of

serious national import, see Florida Prepaid Postsecondary

Ed. Exp. Bd. v. College Savings Bank, 119 S. Ct 2199, 2210

2! See also id at 421 (Constitution gives Congress discretion to carry

out its powers “in the manner most beneficial to the people.”).

22 See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 276 (1918)

(invalidating federal law regulating movement of goods produced by

child labor on ground that conditions of production were reserved to the

states), overruled in United States v. Darby, 312 U.S. 100, 115-17

(1941); Carter v. Carter Coal Co., 298 U.S. 238, 308-09 (1936)

(invalidating Bituminous Coal Conservation Act on ground that only

states could regulate terms of work in mines, notwithstanding the

magnitude of coal strikes’ effects on Nation’s economy); for discussion,

see BORIS I. BITTKER, BITTKER ON THE REGULATION OF INTERSTATE AND

FOREIGN COMMERCE §5.02-.04 (1999).

17

(1999), will not suffice. Requirements of substantiation.

however, should not be translated into requirements that

congressional “findings” mimic the judicial process. Rules

of evidence do not and should not apply, nor should court-

based burdens of proof arguments. Indeed, as Justice

Kennedy, concurring in Lopez counseled, judicial review

should be predicated upon “great restraint.” Lopez, 514 U.S.

at 568. See also Lujan v. Defenders of Wildlife, 504 U.S.

555, 580 (1992)(Kennedy, J., concurring) (noting Congress’

“power to define injuries and articulate chains of causation”

for standing purposes).

A decision striking down VAWA would be wholly

inconsistent with the Court’s foundational jurisprudence on

congressional power from 1937 forward. Were the Court to

conclude that the evidence of direct and substantial effects on

commefce was not sufficient in this case, a host of

corgressional statutes would be open to question. Indeed,

challenges are already underway to a wide variety of federal

statutes, including the Endangered Species Act, the Clean

Water Act, CERCLA, the Child Support Recovery Act, and

many others.”

What principles would guide this Court as it worked

through the many statutes so challenged? How many

witnesses, what kind of documentary material, and how long

a hearing would suffice? The edifice of national power

would be subject to repeated challenges as the Court

reweighed the probative value of legislative investigations

that form the predicate for congressional action.

But the Court should not and need not embark on

3 See Antony Barone Kolenc, Commerce Clause Challenges After

United States v Lopez, 50 Fla. L. Rev. 867, 905-06, 914 (1998).

18

such an enterprise. The question under our Constitution is

not what injuries to commerce the Court might find (nor, as

to the Fourteenth Amendment, what remedies for

constitutional discrimination the Court could give). The

question is whether Congress had an adequate basis for

acting under the Commerce Clause in creating the civil

rights remedy in VAWA. As we have shown, the record

before Congress was more than adequate to demonstrate that

this is an arena in which Congress can lawfully act. To

overturn this law, enacted with care and deliberation on this

record, would indeed be to “pass the line which

circumscribes the judicial department . . . to tread on

legislative ground.” McCulloch v. Maryland, 17 U.S. at 423.

Il. THE VIOLENCE AGAINST WOMEN ACT IS AN

APPROPRIATE EXERCISE OF CONGRESS’ POWERS TO

ENFORCE THE FOURTEENTH AMENDMENT.

A. Congress Found Pervasive and Entrenched

Patterns of Sex Discrimination in State Criminal Justice

Systems.

Congress enacted VAWA’s civil rights remedy after

years of hearings that documented widespread patterns of sex

discrimination in state criminal justice systems. The

evidence before Congress demonstrated that states deny

women equal protection of the laws in the most fundamental

sense: States fail to treat violent assaults against women as

seriously as they treat other forms of violent assault. The

pattern of sex discrimination Congress uncovered is

pervasive, entrenched, and openly acknowledged by the state

judiciaries themselves:

“Study after study commissioned by the

highest courts of the States . . . has concluded

19

that crimes disproportionately affecting

women are often treated less seriously than

comparable crimes against men. Collectively

these reports provide overwhelming evidence

that gender bias permeates the court system

and that women are most often its victims.”

S. Rep. No. 102-197, at 43-44 (1991) (internal quotations

omitted) (citing Gender Bias Task Force Reports from 17

states); accord S. Rep. No. 103-138, at 49 (1993).

For centuries States have regulated rape and domestic

violence as assaults against women, and this explicit

understanding of the gender of the victims not only shaped

how state actors regulated such assaults in the past. As

Congress recognized, gender-based discrimination continues

in the administration of the criminal law today.

Historically, States regulated domestic violence in

explicitly sex-based terms:

“Until the 20" century, our society effectively

condoned family violence, following a

common-law rule known as the ‘rule of

thumb,’ which barred a_ husband from

‘restraining a wife of her liberty by

chastisement with a stick thicker than a man’s

thumb.”

Long after States formally repudiated a husband’s common-

** S. Rep. No. 103-138, at 41 (1993); see generally Reva B. Siegel,

‘The Rule of Love’: Wife Beating as Prerogative and Privacy, 105 Yale

L.J. 2117, 2123-25 (1996) (discussing treatises and cases recognizing

the husband’s common-law prerogative to “chastise” or “correct” his

wife).

20

law prerogatives, law enforcement officials often refused to

intervene when husbands beat their wives. Until quite

recently, this denial of equal protection was announced in

openly sex-based terms.”

Like domestic violence, rape is a form of assault that

States have traditionally defined and punished in explicitly

sex-based terms. Following the common law, they also

allowed husbands to rape their wives with impunity. While

most States have now repealed or revised the marital rape

exemption, the record before Congress showed that, even

after these reforms, many States still refuse to protect women

from husbands who rape or assault them.*°

In short, until quite recently, States often defined and

regulated rape and domestic violence in overtly sex-based

See Siegel, supra note 24, at 2150-74. As late as 1975, the Oakland

Police Department’s Training Bulletin on Techniques of Dispute

Intervention warned that “arrest will only aggravate the dispute or create

a serious danger for the arresting officers ... when a husband or father is

arrested in his home.” Del Martin, Battered Wives 93-94 (1976) (quoting

Oakland Police Department’s training bulletin). Congress could

reasonably find that such discriminatory practices did not come to an end

with the elimination of gender-specific language from police manuals.

See, e.g., 1992 House Subcomm. Hearing, supra note 9, at 2 (statement

of Rep. Charles Schumer) (“For hundreds of years, the legal system

explicitly condoned violence against women... . . The rule of thumb

now is that domestic violence cases are nothing but lovers’ quarrels that

are best left to be resolved without the police and the courts.”).

26 When the Congress first began to consider the problem of violence

against women, it found that seven states did not define marital rape as a

crime and 26 other states allowed prosecutions only under restricted

circumstances. S. Rep. No. 102-197, at 45 n. 50 (1991){citation omitted);

this pattern persists today. See Jennifer Gaffney, Amending the Violence

Against Women Act: Creating a Rebuttable Presumption of Gender

Animus in Rape Cases, 6 J. L. & Pol’y 247, 259 n. 51 (1997) (discussing

current status of marital rape exemption).

21

terms; some States still do.” Even if a State revises its rape

law in gender-neutral language, legislators, police,

prosecutors, judges, assailants and victims still understand

rape as a form of assault by men against women. As

witnesses emphasized, gender norms that have organized the

criminal justice system for centuries cannot be eliminated by

fiat or transformed overnight. As the Congress recognized,

State responses to assaults traditionally directed at women

have been deeply infected by various forms of stereotypical

reasoning:

“If these cases had involved the typical male

assault victim, our reactions might be far

different. Typically, we do not ask whether

the victim of a barroom brawl is a real victim;

we do not comment that the victim deserved

to be hit; we do not inquire whether there was

resistance or whether the victim said “no”

persistently enough; we do not believe that

the crime may have been fabricated

altogether. Until the stereotypes upon which

these scenarios are built seem as foreign for

the victims of rape and domestic violence as

they do for the victims of barroom brawls, our

criminal justice system will pose barriers for

27 . P . — ‘ .

With the rise of modern sex discrimination doctrine, states have

generally rewritten their rape law in formally gender-neutral terms, yet

many exceptions remain. See, e.g, ALA. CODE § 13A-6-61(a), 13A-6-62

(a) (1999) (gender-specific definition of first- and second-degree rape);

GA. CODE ANN. § 16-6-1(a) (1999) (gender-specific definitions of rape);

IDAHO CODE § 18-6101 (1999) (gender-specific definition of rape); see

generally MODEL PENAL CODE § 213. 1 (1) (1980) (originally adopted

1962; current through A.L.I. annual meeting, 1998 (WL 1999)) (defining

rape as a crime committed by “[a] male who has sexual intercourse with

a female not his wife”).

22

women it does not pose for others in our

society.”

S. Rep. No. 102-197 at 34 (1991).

Recent law reform efforts demonstrate just how

difficult it is to alter the invidious gender-based attitudes and

assumptions that have become institutionally entrenched

under centuries of prior practice.” “The sad fact is that law

reform has faied to eradicate the stereotypes that drive the

system to treat these crimes against women differently from

other crimes.” S. Rep. No. 102-197, at 46 (1991). As the

Senate Judiciary Committee concluded:

“From the initial report to the police through

prosecution, trial, and sentencing, crimes

against women are often treated differently

?8 Numerous state gender bias task forces reported that invidious gender-

based reasoning concerning violence against women lingers at every

level of the State justice systems. See, e.g., Report of the Illinois Task

Force on Gender Bias in the Courts 135 (1990) (“there continue to be

problems in the following areas: . . . continuing police resistance in

considering domestic violence a serious crime; . . . selective prosecution

of domestic violence cases, accompanied by high rates of dismissal of

these cases or reduction of the charges; . . . reluctance to impose prison

sentences and the imposition of disproportionately low sentences in

domestic violence cases. .. .”); Utah Task Force on Gender and Justice

60 (1990) (“Skeptical regard for the victim’s credibility is a continuing

problem in both [domestic violence and acquaintance rape] especially in

interactions with law enforcement officers and prosecutors.”); Kentucky

Task Force on Gender Fairness in the Courts 28 (1992) (“Sex role

stereotypes which blame the victim have played an important negative

role in the lack of responsiveness in domestic abuse proceedings”);

Report to the Supreme Court of Georgia by the Commission on Gender

Bias in the Judicial System 103 (1991) (“Police are reluctant to charge

and prosecute cases of acquaintance rape and police do not charge a

husband with the rape of his wife”).

23

and less seriously than other crimes. Police

may refuse to take reports; prosecutors may

encourage defendants to plead to minor

offenses; judges may rule against victims on

evidentiary matters; and juries too often

focus on the behavior of the survivors-laying

blame on the victims instead of on the

attackers.” S. Rep. No. 103-138, at 42

(1993).

B. Failure to Provide Women Equal Protection

from Assault is a Core Violation of the Equal Protection

Clause.

After years of hearings, Congress 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.” H. R. Conf. Rep. No. 103-711, at

385 (1994). The detailed testimony gathered, as well as the

numerous state task force reports examined in the legislative

process, did not simply uncover a long history of explicitly

sex-based regulation. It established that, even today, state

actors responsible for protecting citizens against assault

repeatedly engage in decision-making riddled with invidious

stereotypical judgments about women.

These congressional hearings established an ongoing,

pervasive, and deeply entrenched pattern of official state

action that violated the core guarantee of the Fourteenth

Amendment: that state governments afford equal protection

of the laws to all persons, regardless of their race or gender.

Blacks as well as whites, women as well as men, are entitled

to protection by police, prosecutors, and the criminal justice

system. Failure to provide such protection on equal terms is

24

a denial of equal protection of the laws in its most basic

sense. This concern clearly motivated the framers of the

Fourteenth Amendment, who feared that state governments

would fail to protect freed slaves from crimes of violence

perpetrated by private actors.”

Affording women equal protection of the laws means

treating crimes of violence perpetrated against women as

seriously as crimes against men.” Where state officials fail to

do so because of archaic stereotypes about women’s proper

role in society, they violate the clearest command of the

Equal Protection Clause.’ As this Court has often

recognized, official discrimination against women may take

the form, not of overt hatred, but of outmoded and archaic

views about women’s roles and their relationships to men.

See, e.g., United States v. Virginia, 518 U.S. 515, 532-34

(1996); J. E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135-42

(1994); Mississippi Univ. for Women v. Hogan, 458 U.S.

718, 724-25 (1982); Frontiero v. Richardson, 411 U.S. 677,

684 (1973) (referring to Nation’s “long and unfortunate

history of sex discrimination. Traditionally, such

29 See JACOBUS TENBROEK, EQUAL UNDER LAW 157-208 (1965).

as The Equal Protection Clause guarantees persons equal protection of

the laws in all spheres; state actions affecting persons in family

relationships are no exception to this guarantee. See Loving v. Virginia,

388 U.S. | (1967); Frontiero v. Richardson, 411 U.S. 677 (1973) ; Orr v.

Orr, 440 U.S. 268 (1979); see also Jill Hasday, Federalism and the

Family Reconstructed, 45 UCLA L. Rev. 1297, 1335-53 (1998).

*' This is not a case concerning a gender-neutral law or policy that

incidentally impacts women, but a case concerning a long history of sex-

based reasoning in criminal and civil law enforcement that leads state

actors to treat violence against women less seriously than violence

against men. There is abundant evidence of discriminatory purpose

within the meaning of Washington v. Davis, 426 U.S. 229 (1976);

Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252

(1977); and Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979).

25

discrimination was rationalized by an attitude of ‘romantic

paternalism’ which, in practical effect, put women, not on a

pedestal, but in a cage.”); see also Planned Parenthood v.

Casey, 505 U.S. 833, 893, 898 (1992) (joint opinion of

O'Connor, Kennedy, and Souter, JJ.) (striking down spousal

notice requirement because it could provoke domestic

violence, and perpetuate constitutionally offensive common-

law assumptions about a husband’s dominion over his wife).

C. The Civil Rights Remedy is Well Within

Congress’ Broad Power to Remedy Violations of the

Fourteenth Amendment.

1. The Civil Rights Remedy is Not a Pretext

for Independent Congressional Interpretation of the

Constitution.

Congress has broad powers to enforce the Fourteenth

Amendment, and may legislate to prevent and remedy

violations of its terms. See, e.g, South Carolina vy.

Katzenbach, 383 U.S. 301 (1966); Katzenbach v. Morgan.

384 U.S. 641 (1966). But the power to enforce the

amendment does not entitle Congress to revise the Court’s

interpretation of its commands. Because “the line between

measures that remedy or prevent unconstitutional actions and

measures that make a substantive change in the governing

law is not easy to discern,” City of Boerne v. Flores, 521

U.S. 507, 519 (1997), this Court evaluates legislation by

asking whether there is “a congruence and proportionality

between the injury to be prevented or remedied and the

means adopted to that end.” /d at 520. The test of

proportionality is designed primarily to determine whether

enforcement-clause legislation is actually crafted to remedy

violations of constitutional rights. Cf College Sav. Bank v.

Florida Prepaid Postsecondary Educ. Expense Bd, 119

26

S.Ct. 2219, 2225 (1999)(noting that remedy must be genuine

attempt to enforce constitutional rights). If the use of

remedial power is not pretexual, Congress must be given

“wide latitude” to decide how best to remedy constitutional

violations. Boerne, 521 U.S. at 520.

This case raises very different issues from those

confronted in Boerne. In that case, the Court saw Congress’

use of remedial power as a pretext for revising the judiciary’s

interpretation of the Constitution’s meaning.” In this case,

there is no evidence of a similar congressional effort at

substantive reinterpretation. As a consequence, this Court

should give Congress “wide latitude” in determining the

most appropriate methods of remedying systemic and

continuing violations of the Fourteenth Amendment.

2. Congress Sought to Work in Partnership

with the States in Remedying Constitutional Violations

While Respecting the States’ Primary Role in Criminal

Law Enforcement, and Narrowly Tailored the Civil

Rights Remedy to Achieve These Ends.

** In Boerne, there was abundant evidence that members of Congress

disagreed with the Court’s decision in Employment Div. v Smith, 494

U.S. 872 (1990), and sought to pass the Religious Freedom Restoration

Act (RFRA) to ‘overrule’ this decision by statute. See Boerne, 521 U.S.

at 515-16. Nevertheless, before this Court, defenders of RFRA argued

that Congress was only attempting to enforce Smith through prophylactic

legislation. The Court found this characterization of Congress’ purpose

in enacting RFRA unpersuasive. The Court saw a clear lack of

proportion between the sparse contemporary history of intentional

religious discrimination in the United States and the “[s]weeping

coverage” of RFRA. /d at 532. Hence this Court saw RFRA as neither

a genuine attempt at remedying constitutional violations as defined in

Smith nor an appropriate means for achieving that end. The

proportionality test introduced in Boerne thus functioned to distinguish

pretextual uses of remedial power from genuine ones.

27

In enacting VAWA, Congress sought to work with

the States as partners in remedying and preventing violence

against women. State task forces across the nation had

discovered pervasive gender bias in state and local law

enforcement, and state officials looked to Congress for help

in solving a national problem.” Congress responded, through

VAWA, by authorizing $1.6 billion in funds, mostly to

States, local governments and Indian tribes to pay for (a)

rape prevention and education programs, (b) victim services

programs, (c) improved security in public transit, (d) the

construction and maintenance of battered women’s shelters,

and (e) funding for additional law enforcement to assist with

prosecution of cases of violence against women.” The civil

rights remedy was yet another element in this federal-state

partnership. It is not an isolated intervention but part of a

total nationwide program to support and supplement state

and local law enforcement while respecting the primary role

of state governments in protecting citizens from violent

assault.

> See Crimes of Violence Motivated by Gender, Hearing Before the

Subcomm. on Civil and Constitutional Rights of the House Comm.on the

Judiciary, 103d Cong. 35 (Nov. 16, 1993) (letter from 41 attorneys

general) ( “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.”); see also S.

Rep. 103-138 at 39 (describing hearing held during 102d Congress in

which attorneys general of Illinois and lowa “testified in support of a

comprehensive Federal response to violence against women, particularly

the need for a civil rights remedy”); Senate Hearing 1991, supra note 7

at 137 (Gill Freeman, Chair, Florida Supreme Court Gender Bias Study

Implementation Commission) (“The message | received from one law

enforcement officer was: Please tél] Congress we are drowning; we need

help.”).

* See CONGRESSIONAL QUARTERLY ALMANAC, 103d Cong., 2d sess,

v. L, at 274 (1994); see also JOSEPH R. BIDEN, SAFER STREETS, SAFER

HOMES 20, 29-37 (Sept. 1999) ($1.4 billion so far appropriated for

VAWA programs).

28

Congress’ decision to create a civil remedy is

consistent with Congress’ larger purpose in enacting VAWA:

to work in partnership with the States to eradicate historic

forms of bias against women in the criminal justice system.

The new remedy vindicates the dignitary and material

interests of victims of gender-motivated violence, and

promotes a legal order in which all members are recognized

as equally worthy of protection from assault. Yet, like the

larger statute of which it is a part, the civil rights remedy

furthers these equal protection values in a federalism-friendly

fashion.

Given Congress’ interest in working with the States,

it is not surprising that it chose a civil action rather than

permitting injunctive or monetary relief against state officials

for discriminatory underprosecution. Such alternatives

would have required state and local officials to defend their

actions against charges of sex discrimination in federal court.

Given its broad remedial discretion, Congress surely has

power to conclude that suits against state officials would not

promote a federal-state partnership conducive to reform.

Moreover, unlike the legislation at issue in the College

Savings cases, Congress did not create a right of action

against states for damages. Instead, the funding provisions

of VAWA sought to enhance the fiscal capacity of the states

to prosecute violence against women.

For these reasons, Congress had ample authority to

create a civil cause of action against the perpetrators of

gender motivated violence. The VAWA civil rights remedy

does not commandeer state officials. It does not drain the

coffers of state law enforcement agencies, and it does not

displace state government functions. This solution allows

the federal government to take an important leadership role

29

while leaving the states with primary responsibility for

protecting citizens from physical assault.”

3. The Civil Rights Remedy in VAWA Is

National Because It Deals With a National Problem.

Congress did not attempt to limit VAWA to

particular States and local governments with histories of

underenforcement for two reasons. First, the record makes

clear that the problem of underenforcement was national. A

nationwide solution, like the nationwide suspension of

literacy tests in Oregon v. Mitchell, “may be reasonably

thought appropriate when Congress acts against an evil such

as racial discrimination which in varying degrees manifests

itself in every part of the country.” 400 U.S. 112, 284 (1970)

(Stewart, J., concurring).

Second, Congress’ desire to work with states rather

than against them also explains its creation of a nationwide

remedy. Had Congress attempted to single out individual

States as especially culpable, it would have been more

** Although the civil rights remedy as initially introduced would have

applied to a broader range of violence against women, Congress took

federalism values into account in deciding to limit the remedy to those

cases of violence where plaintiffs could show that the violence was “due.

. . to animus based on the victim's gender.” 42 U.S.C. § 13981(d)(1).

Congress’ decision to focus the civil remedy on the most openly biased

forms of violence against women, rather than the full range of violent

assault against women, represents a federalism-sensitive judgment about

the circumstances in which it was most important to make federal fora

available, and presents none of the pretext or separation-of-powers

concerns with which Boerne is concerned. Boerne 's proportionality test

is surely not intended to call into constitutional question congressional

acts of restraint motivated by federalism considerations. From this

perspective, VAWA’s civil remedy meets any reasonable understanding

of proportionality and congruence.

30

difficult to gain cooperation for necessary reforms in the

states that most needed them. By making the civil rights

remedy applicable to all jurisdictions, and by distributing

funds nationwide, Congress avoided identifying particular

states as especially blameworthy, and made clear that it

wanted to pursue reform by working with all states on an

equal footing.

The VAWA remedy is thus a proportionate and

congruent response to state violations of the Fourteenth

Amendment, narrowly crafted to protect federalism interests,

and well within Congress’ enforcement powers as defined by

this Court’s recent cases.

CONCLUSION

For these reasons, the judgment below holding

VAWA’s civil remedy unconstitutional should be reversed.

Respectfully submitted

Of Counsel

Bruce Ackerman Amy Schulman*

Jack M. Balkin Piper Marbury

Vicki C. Jackson Rudnick & Wolfe LLP

Frank I. Michelman 1251 Avenue of the Americas

Judith Resnik New York, NY 10020-1104

212/835-6000

*Counsel of Record

1A

ADDENDUM

Listing Amici Curiae Professors of Law Who Teach or Write in

Constitutional Law, Federal Courts or Jurisprudence

(Institutional affiliations are given solely for purposes of

identification and do not imply any endorsement of any view or

position by the institution.)

Kathryn Abrams

Cornell Law School

Roger I. Abrams

Northeastern University School of Law

Bruce Ackerman

Yale Law School

Libby S. Adler

Northeastern University School of Law

Alexander Aleinikoff

Georgetown University Law Center

Anthony G. Amsterdam

New York University School of Law

Jennifer Arlen

University of Southern California Law School

Frank Askin

Rutgers — State University of New Jersey, Newark

Barbara A. Atwood

University of Arizona College of Law

2A

lan Ayres

Yale Law School

C. Edwin Baker

University of Pennsylvania Law School

Lynn A. Baker

University of Texas School of Law

Jack Balkin

Yale Law School

Susan Bandes

DePaul University College of Law

Katharine T. Bartlett

Duke University School of Law

Mary E. Becker

DePaul University College of Law

Derek Bell

New York University School of Law

Boris Bittker

Yale Law School

Susan Low Bloch

Georgetown University Law Center

Cynthia Grant Bowman

Northwestern University School of Law

Judith Olans Brown

Northeastern University School of Law

3A

Robert A. Burt

Yale Law School

Patricia A. Cain

University of lowa College of Law

Evan H. Caminker

University of Michigan Law School

Martha Chamallas

University of Pittsburgh School of Law

Neil H. Cogan

Quinnipiac College School of Law

David Cole

Georgetown University Law Center

Jan C. Costello

_ Loyola Law School

Clare Dalton

Northeastern University School of Law

Marcella David

University of lowa College of Law

Richard Delgado

University of Colorado School of Law

Don Doernberg

Pace University School of Law

Peter Edelman

Georgetown University Law Center

4A

Susan Estrich

University of Southern California Law Center

Cynthia R. Farina

Cornell Law School

Lucinda M. Finley

State University of New York at Buffalo

Martin S. Flaherty

Fordham University School of Law

James E. Fleming

Fordham University School of Law

John G.S. Flym

Northeastern University School of Law

Katherine M. Franke

Fordham University School of Law

Eric M. Freedman

Hofstra University School of Law

Stephen E. Gottlieb

Albany Law School

Abner Greene

Fordham University School of Law

Angela P. Harris

University of California at Berkeley School of Law — Boalt Hall

Lynne Henderson

Indiana University School of Law - Bloomington

SA

Susan N. Herman

Brooklyn Law School

Allan Ides

Loyola Law School

Lisa Ikemoto

Loyola Law School

Vicki C. Jackson

Georgetown University Law Center

Sheri L. Johnson

Cornell Law School

David Kairys

Temple University School of Law

Kenneth L. Karst

University of California at Los Angeles School of Law

Karl E. Klare

Northeastern University School of Law

Lisa A. Kloppenberg

University of Oregon School of Law

Larry Kramer

New York University School of Law

Seth Kreimer

University of Pennsylvania Law School

Pnina Lahav

Boston University School of Law

6A

Jane E. Larson

University of Wisconsin Law School

Sylvia A. Law

New York University School of Law

Charles R. Lawrence

Georgetown University Law Center

Frederick M. Lawrence

Boston University School of Law

Lawrence Lessig

Harvard Law School

Jean C. Love

University of lowa College of Law

David B. Lyons

Boston University School of Law

Catharine A. MacKinnon

University of Michigan Law School

Linda C. McClain

Hofstra University School of Law

Carrie Menkel-Meadow

Georgetown University Law Center

Michael Meltsner

Northeastern University School of Law

Frank Michelman

Harvard Law School

7A

Martha Minow

Harvard Law School

Marlene Arnold Nicholson

DePaul University College of Law

Victoria Nourse

University of Wisconsin Law School

Robert Post

University of California at Berkeley School of Law — Boalt Hall

Edward A. Purcell, Jr.

New York Law School

Judith Resnik

Yale Law School

Deborah L. Rhode

Stanford Law School

David A.J. Richards

New York University School of Law

Thomas D. Rowe, Jr.

Duke University School of Law

David Rudenstine

Benjamin N. Cardozo School of Law, Yeshiva University

Jane Rutherford

DePaul University College of Law

Jane Scarborough

Northeastern University School of Law

8A

Elizabeth M. Schneider

Brooklyn Law Sehool

Christopher H. Schroeder

Duke University School of Law

Anthony J. Sebok

Brooklyn Law School

Gene R. Shreve

Indiana University School of Law—Bloomington

Reva Siegel

Yale Law School

Peter L. Strauss

Columbia University School of Law

Ruti Teitel

New York Law School

Lea VanderVelde

University of lowa College of Law

Mark C. Weber

DePaul University College of Law

Louise Weinberg

University of Texas School of Law

Merle H. Weiner

University of Oregon School of Law

Harry Wellington

New York Law School

9A

Robin West

Georgetown University Law Certer

Christina B. Whitman

University of Michigan Law School

Stephanie M. Wildman

University of California at Berkeley School of Law — Boalt Hall

Susan H. Williams

Indiana University School of Law - Bloomington

Steven L. Winter

Brooklyn Law School

Larry W. Yackle °

Boston University School of Law

Kenji Yoshino

Yale Law School

Diane L. Zimmerman

New York University School of Law