Amicus Curiae Brief — Brzonkala v. Morrison (Nos. 99-29, 99-5)

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Supreme Court, US

FILED

Nos. 99-5, 99-29 NOV 12 1999

QFRIOE O& THE GLERK

IN THE

SUPREME COURT OF THE UNITED STATES

UNITED STATES, Petitioner,

Vv.

ANTONIO J. MORRISON AND

JAMES LANDALE CRAWFORD, Respondents.

CHRISTY BRZONKALA, Petitioner,

ANTONIO J. MORRISON AND

JAMES LANDALE CRAWFORD, Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF SENATOR JOSEPH R. BIDEN, JR. AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

JOSEPH R. BIDEN, JR., UNITED STATES SENATOR*

221 Russell Senate Office Building

Washington, D.C. 20510

(202) 224-5042

*Counsel of Record

QUESTIONS PRESENTED

1. Whether 42 U.S.C. § 13981, the provision of the

Violence Against Women Act of 1994 that creates a private

right of action for victims of gender-motivated violence, is a

valid exercise of Congress’ power under the Commerce Clause

of the Constitution.

2. Whether 42 U.S.C. § 13981 is a valid exercise of

Congress’ power under the Enforcement Clause of the

Fourteenth Amendment to the Constitution.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................... i

TABLE OF AUTHORITIES ....................0005. IV

INTEREST OF AMICUS CURIAE .................... l

i Rett ae. a ae t ee aaee eens l

SUMMARY OF ARGUMENT ........................ 4

ERR ES I EE A Le Or ne ae 6

1 THE CIVIL RIGHTS REMEDY IS A VALID

EXERCISE OF CONGRESS’ AUTHORITY

UNDER THE COMMERCE CLAUSE .............. 6

A. Congress Made Express Findings, Based on a

Sufficient Record, That Gender-Based Violence

Substantially Affects InterstateCommerce ....... 7

B. Congress Deliberately Selected a Remedy That

Respects Principles of Federalism ............. 15

fl. THE CIVIL RIGHTS REMEDY IS A VALID

EXERCISE OF CONGRESS’ POWER TO

ENFORCE THE FOURTEENTH AMENDMENT .... 19

A. Congress Found Widespread Bias in State Legal

Systems Against the Victims of Gender-Based

Crimes, and Acted to Remedy That Bias........ 20

———— <a —

B. Congress’ Choice of Remedy in Responding

to the Failings of State Legal Systems Was

NTIS oc cdineebb466b008%0 0s

CONCLUSION

TABLE OF AUTHORITIES

Page

CASES

Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982). .......... 27

Burns v. Burns, 518 So.2d 1205 (Miss. 1988) ............ 23

City of Boerne v. Flores, 521 U.S. 507 (1997) ... 4, 19, 28, 30

City of Riverside v. Rivera, 477 U.S. 561 (1986).......... 30

Craig v. Boren, 429 U.S. 190 (1976) ........ 2... eee 22

Daniel v. Paul, 395 U.S. 298 (1969) ..............--45: 14

DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189 (1989) ................. 27

EEOC v. Wyoming, 460 U.S. 226 (1983)................ 14

Estes v. Estes, No. WD-84-36, 1984 WL 14313

(Ohio. App. Oct. 19, 1984) 0.0... eee eee. 23

Florida Prepaid Postsecondary Education Expense

Board v. College Savings Bank,

Ty t-.. )... er 19, 20

Griffin v. Breckenridge, 403 U.S. 88 (1971) ............. 17

Hack v. Hack, 433 A.2d 859 (Pa 1981) ................ 23

Heart of Atlanta Motel, Inc. v. United States,

Se NS. s .c cc:dndabealecdicsenanuated 14

- ~ ~—w ee - -—.

Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 264(1981)................. 13, 29

Illinois v. M.D., 595 N.E.2d 702 (Il App. Ct. 1992) ...... 22

Jones v. Jones, 376 S.E.2d 674 (Ga 1989) .............. 23

Katzenbach v. McClung, 379 U.S. 294 (1964) ........ 13,14

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....... 23

Merton v. Alabama, 500 So.2d 1301 (Ala. Crim.

I toga ter ee re ids 22

Mississippi University for Women v. Hogan,

eae Se Ee TT 22

Moran v. Beyer, 734 F.2d 1245 (7th Cir. 1984)........... 23

Nanonal Labor Relations Board v. Jones & Laughlin

I I re a 18

New York v. Liberta, 474 N.E.2d 567 (N.Y. 1984) .. 21, 22, 23

New York v. United States, 505 U.S. 144 (1992) .......... 29

Preseault v. ICC, 494 U.S. 1(1990) ................ 13, 29

Price v. Price, 732 S.W.2d 316 (Tex. 1987) ............. 23

Shunn v. Wyoming, 742 P.2d 775 (Wyo. 1987) ........... 22

Trammel v. United States, 445 U.S. 40 (1980) ........... 22

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

United States v. Virginia, 518 U.S. 515 (1996) ........... 22

Warren v. Georgia, 336 S.E.2d 221 (Ga 1985) .......... 22

Williams v. Alabama, 494 So.2d 819 (Ala. Cnm.

BR TD son dnc cden svsucsun duescesetesescesedc 22

FEDERAL CONSTITUTION

U.S. Const. art. 1, § 8 (Commerce Clause) ........... passim

U.S. Const. amend. XIV, § |

(Equal Protection Clause) .............---..55. passim

US. Const. amend. XIV, §5 ............---.5555- passim

STATUTES AND RULES

TREES GOR onic ck kcccdcvcescevccensenonndes 16

I POE: 0 6d dew a dccee ceveecsctscedes passim

PURE BPI ooo c ccccctesccdccdenvcccuceseses 4

Yl it. |) | ne 16

42 U.S.C. § ISSBICGIEAMA) . ... 6 we cece eee eeee 17, 29

42 U.S.C. § 139B1¢G 2B)... ee eee eee 29

Poi) Ce 0000. rere cr 16

PrRIE Co 0) 0 ee 17

Pub. L. No. 103-322, Title IV, Subtitle C,

§§ 40301-40303, 108 Stat. 1941-42 .......... 06... 05s. 3

Supreme Court Ruie 37.3.............................. l

Supreme Court Rule 37.6 ............................. l

LEGISLATIVE HISTORY

H.R. 5468, 101st Cong. (1990) ........................ 2

H.R. 1502, 102d Cong. (1991)...............00........ 2

ee es eel ds seus 2,3

ee 3

H.R. 4092, 103d Cong. (1994)..............0000....... 3

H.R. Conf. Rep. No. 103-711 (1994) ............... 3, 8, 20

H.R. Rep. No. 103-395 (1993) ........0. 00000008... 3,27

ey ID 0 ae eects cb eweceuch 2

ee cine cdeduackncweus 2

S. 11, 103d Cong. (1993) ......... 00000000. 2, 3, 8, 16, 17

ES ae Ee AE 3

S. Rep. No. 101-545 (1990) ................... 8, 9, 27, 28

S. Rep. No. 102-197 (1991) ..... 2.0.00... passim

S. Rep. No. 103-138 (1993) ...................... passim

ee 16

vil

SEG, BREE, Se OD oo ws cb cvccesccasovtcesess 3

Se Se. Gee UE wee cca awadnccastsescseas 17

aoe RR Ree 3

PG, GD DE ED bo vx vcvossecevesces 9, 12, 26

139 Cong. Rec. 31,292 (1993) .... 2... 0... cee ee eee 11, 26

oe BB eee 3

140 Came, Beas. ZEGES CIGPS) ow ccc cece cen ccccccnees 3

140 Cong. Rec. 8141-42 (1994). 0c eee 3

140 Come, Ras. 23,18 (IDRE) . ww cece ccc cee sence: 3

DOD Gee, THRE, DRE GRD oc ce seccecccccsecceseeses 3

Crimes of Violence Motivated by Gender: Hearing

Before the Subcomm. on Civil and Constitutional

Rights of the House Comm. on the Judiciary,

PEE so nicuceeneeutenestdtcstens passim

Domestic Violence: Not Just a Family Matter: Hearing

Before the Subcomm. on Crime and Criminal

Justice of the House Comm. on the Judiciary,

ED ci-vndoscossveshasucni 2,9, 11, 12, 25

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. (1990) .......... 2, 12, 26

ae a Se

Hearing on Domestic Violence: Hearing Before

the Senate Comm. on the Judiciary,

IE, ose ase ook cis es asa’ 2,9, 11, 26

Violence Against Women: Fighting the Fear:

Hearing Before the Senate Comm. on the Judiciary,

6 oa ie oad ie ie ens oe passim

Violent Crimes Against Women: Hearing Before

the Senate Comm. on the Judiciary,

103d Cong, (1993) 2.00... eee e eee, 2, 12, 25

Violence Against Women. Hearing Before the Subcomm.

on Crime and Criminal Justice of the House Comm.

on the Judiciary, 102d Cong. (1992)....... 2, 11, 12, 25, 26

Violence Against Women: Victims of the System:

Hearing Before the Senate Comm. on the Judiciary,

EE OES a passim

Women and Violence: Hearings Before the Senate Comm.

on the Judiciary, \0\st Cong. (1990) ............. passim

MISCELLANEOUS

Admunistrative Office of the California Courts Judicial

Council, Achieving Equal Justice for Women and Men

ne ant vhbes 24

Joseph R. Biden, Jr., The Civil Rights Remedy

of the Violence Against Women Act: A Defense,

37 Harv. J. on Legis. (forthcoming Jan. 2000) ........... ]

Victoria F. Nourse, Where Violence, Relationship, and

Equality Meet: The Violence Against Women Act's

Civil Rights Remedy, 11 Wis. Women’s L.J. 1 (1996)

Staff of Senate Comm. on Judiciary, Violence Against

Women: A Week in the Life of America (Oct. 1992) ...... 12

Supreme Court of Georgia, Gender and Justice in the

Cammte CASA) oc ccccccccccvcseccsccasescssessess 24

Texas Gender Bias Task Force, Final Report (1994)....... 24

INTEREST OF AMICUS CURIAE'

Senator Joseph R. Biden, Jr. is the author of the Violence

Against Women Act, which includes the civil rights remedy at

issue in this case. The Act enjoyed tremendous bipartisan

support, with 68 cosponsors in the Senate and 226 cosponsors in

the House of Representatives, and passed both Houses by

overwhelming margins.

As a former Chairman of the Senate Judiciary Committee,

chief sponsor of the Act, and champion of its civil rights remedy,

Senator Biden is uniquely qualified to offer the congressional

perspective as to why the civil nights provision is both necessary

and within Congress’ power, pursuant to the Commerce Clause

and § 5 of the Fourteenth Amendment. He believes that his

detailed description of the statute’s history and supporting

legislative record will aid the Court in resolving the issues

presented.’

STATEMENT

1. Senator Biden first introduced the Violence Against

Women Act in 1990 “in response to the escalating problem of

violence against women,” S. Rep. No. 103-138, at 37 (1993)

(“1993 S. Rep.”)}—an unfolding “national tragedy played out

every day in the lives of millions of American women at home,

in the workplace, and on the street.” S. Rep. No. 102-197, at 39

(1991) (“1991 S. Rep.”). During the four-year investigation that

followed, Congress heard testimony from a wide range of

' In accordance with Supreme Court Rule 37.6, amicus curiae represents that

no counsel for a party authored this brief in whole or in part, and no person or

entity, other than amicus, has made a monetary contribution to the preparation

or submission of this brief. All parties to these consolidated cases have

consented to the filing of this brief, and the letters of consent have been filed

with the Clerk of the Court pursuant to Supreme Court Rule 37.3.

? Senator Biden also has written a law review article defending the

constitutionality of the Violence Against Women Act civil nghts remedy. The

article is expected in print this January. See Joseph R. Biden, Jr., The Civil

Rights Remedy of the Violence Against Women Act: A Defense, 37 Harv. J. on

Legis. (forthcoming Jan. 2000).

experts, including judges, law enforcement officers, prosecutors,

state attorneys general, law professors, social scientists,

physicians, and victims of violence, and generated a massive

legislative record in support of the legislation.’

As detailed below, the legislative record amassed by

Congress after years of testimony and close analysis

demonstrates that violence against women was (and is) a national

problem of the first order, a problem that Congress found

seriously impeded women from participating fully in the

commercial life of the nation—and one that state legal systems

had been both unable and unwilling to remedy.

2. Senator Biden introduced the Violence Against Women

Act, comprehensive federal legislation to combat violent crime

against women, in each of the 101st through 103d Congresses.

See S. 2754, 101st Cong. (1990); S. 15, 102d Cong. (1991);

S. 11, 103d Cong. (1993). Companion legislation was

introduced in the House. H.R. 5468, 101st Cong. (1990); H.R.

1502, 102d Cong. (1991); H.R. 1133, 103d Cong. (1993). The

Act enjoyed tremendous bipartisan support and passed both

* See, e.g., Domestic Violence: Not Just a Family Matter: Hearing Before the

Subcomm. on Crime and Criminal Justice of the House Comm. on the

Judiciary, 103d Cong. (1994) (“1994 H.R. Hrg.”), Crimes of Violence

Motivated by Gender: Hearing Before the Subcomm. on Civil and

Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993)

(“1993 H.R. Hrg.”); Violence Against Women: Fighting the Fear: Hearing

Before the Senate Comm. on the Judiciary, 103d Cong. (1993) (“Nov. 1993 S.

Hrg.”), Violent Crimes Against Women: Hearing Before the Senate Comm. on

the Judiciary, 103d Cong. (1993) (“Apr. 1993 S. Hrg.”), Hearing on Domestic

Violence: Hearing Before the Senate Comm. on the Judiciary, \03d Cong.

(1993) (“Feb. 1993 S. Hrg.”), Violence Against Women: Hearing Before the

Subcomm. on Crime and Criminal Justice of the House Comm. on the

Judiciary, 102d Cong. (1992) (“1992 H.R. Hrg.”);, Violence Against Women:

Victims of the System: Hearing Before the Senate Comm. on the Judiciary,

102d Cong. (1991) (“1991 S. Hrg.”), Women and Violence: Hearings Before

the Senate Comm. on the Judiciary, 10\st Cong. (1990) (“1990 S. Hrg.”),

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, 10st Cong. (1990) (“1990 S. Labor Hrg.”).

Houses by overwhelming margins.* After a conference to work

out differences between the two bills,’ both legislative bodies

adopted the Conference Report, 140 Cong. Rec. 24,115 (1994)

(Senate passage); 140 Cong. Rec. 23,618 (1994) (House

passage), and on September 13, 1994, the President signed into

law the Violent Crime Control and Law Enforcement Act of

1994, which included the Violence Against Women Act.

3. In addressing violence against women, Congress

employed “several different complementary strategies,” 1991 S.

Rep. 34, to attack the problem on all fronts. A key subtitle in this

multifaceted legislative scheme, the Civil Rights Remedies for

Gender-Motivated Violence Act, creates a new federal civil

cause of action that allows victims of gender-motivated violence

to sue their attackers in court. See Pub. L. No. 103-322, Title IV

Subtitle C, §§ 40301-40303, 108 Stat. 1941-42 (codified at 42

U.S.C. § 13981). The civil rights remedy was among the most

closely considered provisions of the Violence Against Women

Act. After years of expert testimony and careful deliberation,

Congress concluded that the provision was necessary; Congress

* S. 11, reported favorably by the Senate Judiciary Committee in 1993, claimed

a total of 68 cosponsors; its House counterpart, H.R. 1133, 226 cosponsors.

The Senate amended the pending crime bill, S. 1607, 103d Cong. (1993), to

include the Violence Against Women Act, by a vote of 94 to 4, 139 Cong. Rec.

27,547 (1993), and then incorporated the bill into the House version, H.R. 3355

103d Cong. (1993), which the Senate passed on November 19. 1993. 139

Cong. Rec. 30,588 (1993). The House initially passed the Violence Against

Women Act as H.R. 1133 on November 20, 1993, by the unanimous vote of

421 to0. 139 Cong. Rec. 31,337 (1993). On April 14, 1994, the House again

passed the Act as part of a crime bill, H.R. 4092, 103d Cong. (1994), which the

House then incorporated into H.R. 3355. 140 Cong. Rec. 8141-42 (1994).

, One issue was whether to include the civil rights remedy. To avoid potential

opposition, the House Judiciary Committee dropped the civil nghts provision

from H.R. 1133 before reporting it favorably out of committee. Compare H.R

Rep. No. 103-395, at 1-24 (1993) (“1993 H.R. Rep.”) (as amended), with HR.

1133, Title III, § 301 (as introduced). The civil rights remedy was not included

in the versions of the Act which initially passed the House. however, the

provision was restored in Conference. See H.R. Conf. Rep. No. 103-711 at

385 (1994) (“HLR. Conf. Rep.”).

further determined in both the statutory text, § 13981(a), and

committee findings that it had the power to enact the provision

pursuant to both the Commerce Clause, U.S. Const. art. I, § 8,

and § 5 of the Fourteenth Amendment. For the reasons set forth

below, that determination was correct.

SUMMARY OF ARGUMENT

This case is one of exceptional importance because it tests

whether Congress has power to address significant national

problems that it has determined obstruct interstate commerce and

threaten principles of equality, and to which the states have

proved unable to respond. The court of appeals held that the

civil nghts remedy of the Violence Against Women Act,

legislation designed to address one such national problem,

exceeded Congress’ authority under both the Commerce Clause

and § 5 of the Fourteenth Amendment. The court was in error.

In United States v. Lopez, 514 U.S. 549 (1995), and City of

Boerne v. Flores, 521 U.S. 507 (1997), this Court invalidated

acts of Congress because Congress failed to make the case for

federal action. In Lopez, the Court struck down the Gun-Free

School Zones Act in part because gun possession near schools

had no evident connection to interstate commerce, and Congress

had made no findings that would have aided the Court in

evaluating the legislative judgment. Similarly, in Boerne, the

Court found the Religious Freedom Restoration Act an

impermissible legislative effort to redefine the meaning of the

First Amendment because the legislative record failed to support

a narrower, clearly legitimate aim of redressing laws that

unconstitutionally discriminated against religious beliefs and

practices.

1. The Violence Against Women Act civil rights remedy is

different. After four years of exhaustive hearings, Congress

made the specific findings and developed the extensive record

lacking in the statutes recently invalidated by this Court. With

respect to the Commerce Clause, Congress expressly found that

gender-based violence substantially and directly affects interstate

commerce by preventing a discrete group, women, from

eT TLIO

participating fully in the day-to-day commerce of our nation. The

legislative record reflects that gender-based violence denies

women the opportunity to secure and maintain employment on an

equal footing with men, exacting a heavy toll on the national

economy and interstate commerce. Witness after witness

testified that as a result of rape, sexual assault, or domestic abuse,

she (or someone she knew) was fired from, forced to quit, or had

abandoned her job. Violence against women and the threat of

such violence, Congress also learned, robs women of the most

basic attributes of commercial existence—the ability to go

grocery shopping, patronize shopping malls and public

accommodations, walk the streets, and use public transportation.

Congress heard considerable testimony that gender-based

violence likewise denies women the fundamental right to travel

from state to state and to procure an education free from sexual

assault.

In short, Congress reasonably determined that the singling

out of women to bear the brunt of so many crimes of violence

imposes an “artificial restriction on the market” that brings the

problem within the federal ambit. As this Court long has

recognized, Congress has power to remove obstructions to

interstate commerce, whatever their source. In authorizing a civil

cause of action for victims to vindicate their right to be free from

violence motivated by gender animus, the statute continues, and

is in keeping with, a venerable tradition of federal civil rights

laws.

2. With respect to § 5 of the Fourteenth Amendment,

Congress expressly found, and the record reflects, that

widespread gender bias has led state criminal and civil legal

systems to treat gender-based crimes of violence less seriously

than other major crimes, denying victims the equal protection of

the laws and the redress to which they are entitled’ Congress

found that state legal systems have institutionalized the historic

prejudices against victims of rape or domestic violence by

erecting formal and informal barriers to justice not encountered

by victims of other serious crimes—barriers that many courts

already have recognized violate the Equal Protection Clause.

e civil rights remedy is specifically designed to compensate for

pros Gane of equal protection by putting directly into the

hands of victims a legal tool that will enable them to secure the

vindication and recompense too often pony ao as a result of

iased and unequal law enforcement in state leg systems.

: The civil rights remedy was carefully crafted in the best

spirit of cooperative federalism, undergoing many revisions on

a bipartisan basis for the very purpose of munimizing the invasion

into state prerogatives. Congress provided a civil remedy for

victims that supplements, but does not displace, available state

remedies, and one that minimally interferes with state

sovereignty. Once Congress, after undertaking a careful

investigation into a national problem of the first order, makes

specific findings supporting the exercise of federal power and the

congressional choice of remedy, its judgment is entitled to

substantial deference.

ARGUMENT

VALID

I. THE CIVIL RIGHTS REMEDY IS A

EXERCISE OF CONGRESS’ AUTHORITY UNDER

THE COMMERCE CLAUSE.

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 also agreed that “Congress’ specific findings

regarding the relationship between gender-motivated violence

and interstate commerce .. . depict the manner in which such

violence affects interstate commerce.” Jd. at 68a-69a This

recognition by the court of appeals should have ended the

matter—but it did not. |

i the Fourth Circuit ruled that § 13981 fails under the

Commerce Clause for two reasons. The court concluded first,

that like the Gun-Free School Zones Act struck down in United

States v. Lopez, 514 U.S. 549 (1995), the nexus to interstate

commerce of the regulated activity (here, gender-based violence)

is too attenuated, and second, that § 13981 fails to heed

Zz — -_~_<- —-<—-_-

principles of federalism. /d at 3la-Sla

Neither of these conclusions is correct. As detailed below,

§ 13981 stands on firmer Commerce Clause ground, and is

drafted in a manner more mindful of federalism concerns, than

the statute invalidated in Lopez.

A. Congress Made Express Findings, Based on a

Sufficient Record, That Gender-Based Violence

Substantially Affects Interstate Commerce.

The Fourth Circuit claimed that it could “discern no... .

distinct nexus between violence motivated by gender animus and

interstate commerce.” Pet. App. 34a. Instead, the court accused

the defenders of § 13981 of relying on an attenuated “costs of

violent crime” rationale on a par with the one offered in Lopez.

Because it failed to appreciate the differences between this case

and Lopez, the court of appeals refused to give Congress’ specific

and detailed findings—which were predicated on an exhaustive

Supporting record—the proper deference they are due.

1. We have no quarrel with this Court’s view in Lopez that

congressional findings are important for courts “to evaluate the

legislative judgment that the activity in question substantially

affected interstate commerce,” especially where, as was the case

in Lopez, the connection between the activity and interstate

commerce is not “visible to the naked eye.” Lopez, 514 US. at

563. This Court invalidated the statute in Lopez in part because

of Congress’ failure to make the case for regulating gun

possession near schools, conduct that in the Court’s VIEW, Wes

neither economic in nature nor likely to exert a substantial effect

on interstate commerce. /d at 567. The same simply cannot be

said of the Violence Against Women Act civil nights remedy. In

sharp contrast to the Gun-Free School Zones Act, where

Congress made no findings and the effect of the criminalized

conduct on interstate commerce was comparatively trivial,

§ 13981 was the subject of numerous hearings and extensive

findings by a Congress cognizant of the limits of its powers.

a. First, Congress explicitly found that gender-motivated

violence against women substantially affects interstate

commerce. As the Conference Report stated:

[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. 385.° Similar findings were made in Senate

Judiciary Committee reports. The Committee found:

Gender-based crimes and the fear of gender-based crimes

restricts movement, reduces employment opportunities,

increases health expenditures, and reduces consumer

spending, all of which affect interstate commerce and the

national economy. Gender-based violence bars its most

likely targets—women—from full [participation] in the

national economy.

1993 S. Rep. 54; accord 1991 S. Rep. 53; S. Rep. No. 101-545,

legislative record. Congress heard testimony from dozens of

° These findings were originally intended for the text of the statute, see S. 11,

§ 302(a), 103d Cong. (1993), 1993 S. Rep. 29, but were ultumately removed

from the text to avoid cluttering the U.S. Code. Victoria F. Nourse, Where

Violence, Relationship, and Equality Meet: The Violence Against Women Act's

Civil Rights Remedy, 11 Wis. Women’s L.J. 1, 36 (1996) (discussing the

statute’s legislative history).

victims and experts regarding the devastating impact of gender-

based violence on the ability of women to participate in

economic activities on an equal footing with men.

women an equal opportunity to compete in the job market,

imposing a heavy burden on the national economy and interstate

commerce. Witness after witness testified that as a result of rape

sexual assault, or domestic abuse, she (or someone she knew)

was fired from, forced to quit, or had abandoned her job.’ The

Senate Judiciary Committee recognized “that almost 50 percent

of rape victims lose their jobs or are forced to quit in the

aftermath of the crime.” 1993 S. Rep. 54. Those women who

remain employed still face a period of decreased IVI

1990 S. Rep. 33, with many missing work because they “either

cannot leave their homes or are afraid to show the physical

effects of the violence.” Id. at 37. As a therapist at Polaroid

Corp. testified, the battered women in his company’s support

group identified a clear relationship between spousal abuse and

such bottom-line issues as tardiness, poor job performance

increased medical claims, interpersonal conflicts in the

workplace, depression, stress, and substance abuse.” Feb. 1993

S. Hrg. 16 (James Hardeman).*

” See, e.g., 1994 H.R. Hrg. 15 (Pegi Shriver) (abusive husband

lose her job), Nov. 1995 S. Hing. 31 (Karen Gigey) (abusive husband caused hes

10 Tose Job by hounding her at work); id. at 14 (Lisa) (after baby was bom,

usband did not allow her to go back to work), 1991 S. Hrg. 132-33 (Amy

Kaylor) (rape led to her losing her job because of time missed from work). id

at 292-93 (letter from Dawn Bosshard) (employer fired her after she took

See ee 1990 S. Hrg., Pt. 1, at 27 (Marla Hanson)

(Rep. Olver) dueuhieg | har fen dain ethane a jour? entteia

because of husband’s harassment at work). im ee

* The National Federation of Business and Professional ikews

. Women, Inc. likewise

testified Women who either cannot leave their homes or are afraid to show

available or jeopardize their current employment by absenteeism and poor work

performance.” 199] S. Hrg. 241; see, e.g., 1994 HR. Hrg. 17 (Karla M.

Digirolamo) (recounting how she “began missing more and more work”

As a result of such interference with the ability of women to

work, domestic violence was estimated to cost employers

between $3 and $5 billion annually as a result of absenteeism in

the workplace.’ Even the threat of gender-based violence,

Congress found, adversely affects interstate commerce by

deterring women from taking jobs in certain areas or at certain

hours that pose a significant nsk of such violence. 1993 S. Rep.

54.'° For all of these reasons, “[iJn pure economic terms, the

sheer loss of productivity attributable to violent gender-based

assault is staggering.” 1991 S. Hrg. 95 (Prof. Burt Neuborne).

The evidence before Congress illustrates countless other

ways in which gender-based violence obstructs women’s

participation in economic life and their ability to move and travel

freely. Congress heard from women who saw the most basic

privileges of commercial existence—the ability to go grocery

shopping, frequent shopping malls, walk the streets, and even

mail correspondence—severely restricted by gender-based

because her husband “kept [her] home or [she] was unable to leave because of

the visible injunes [she] had sustained”).

* 1991 S. Hrg. 240 (National Federation of Business and Professional Women,

Inc.); see also 1994 H.R. Hrg. 9 (Vicki Coffey, Executive Director, Chicago

Abused Women Coalition) (“Businesses lose billions of dollars annually due

to absenteeism and loss of productivity because employees are abused”).

work force 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.

Their employment opportunities have a ceiling placed upon them that you don’t

read in title VII.”); id. at 92; id. at 240-41 (National Federation of Business and

Professional Women, Inc.) (“Deprived of the ability to be safe in their own

homes, to walk freely on the streets, and to travel alone without fear of attac(k),

women find their employment options in life sharply reduced.”), see, e.g., 1990

S. Hrg., Pt. 1, at 22-23 (Nancy Ziegenmeyer) (rape victim gave up plans of

becoming a real estate agent because “[t}he prospect of going into an

unoccupied building with a stranger is ternfying to me” and now fears traveling

and staying in lodging away from home).

ee ee ee

vio se Violence against women and the threat of such

violence significantly impair women’s freedom of movement and

economic opportunities by deterring them from using public

accommodations, sidewalks, streets, parking lots, and

transportation—the very channels and instrumentalities of

interstate commerce. '* Congress found that because “fear of rape

is central to the day-to-day concerns of about a third of women,”

it “takes a substantial toll on the lives of all women, in lost work,

social, an{d] even leisure opportunities.” 1991 S. Rep. 38.

As the legislative record also reflects, gender-based violence

frequently denies women the basic right to travel from state to

State, as spouses or boyfnends hunt them down or drive them

from one jurisdiction to the next. One after another, witnesses

described to Congress how they had become the interstate

victims of abusive husbands or boyfriends who dragged the

women from state to state to avoid detection of their crimes, or

how the women themselves had fled across state lines to escape

'' See, e.g., 1994 H.R. Hrg. 17 (Karla M. Digirolamo) (husband her

of money, forcing her to beg for food and money); Feb. 1993 S. — tay pe

Hardeman) (telling story of woman severely beaten on steps of post office

because she had failed to get her husband’s permission to leave the house and

mail a letter), 1992 H.R. Hrg. 57 (Jane Doe) (husband allowed her “only to go

to [her] job and come home and nowhere else”), 139 Cong. Rec. 31,292 (1993)

(Rep. Olver) (submitting letter from abused woman prohibited by husband from

going places, even grocery stores).

'? “The threat of violence has made many women understandably afraid to

walk our streets or use public transportation.” 1990 S. Hrg., Pt. 2, at 80

(Intemational Union, United Automobile, Aerospace & Agricultural Implement

Workers of America—UAW), 1990 S. Hrg., Pt. 1, at 57 (Helen R. Neuborne,

Executive Director, NOW Legal Defense and Education Fund) (describing self-

imposed restrictions by female law school students who “routinely take

precautions to protect themselves from the omnipresent threat of sex-based

violence”). Women know that they cannot frequent places men can go without

fear of attack. “Campuses, parking lots, libraries, shopping centers, parks,

jogging trails—all are possible danger zones.” 1991 S. Hrg. 253 (Dr. Leslie R.

Wolfe, Executive Director, Center for Women Policy Studies); see, e.g., Nov.

1993 S. Hrg. 41 (Jennifer Tescher) (after rape, could not bring herself to go out

in public after dark).

their batterers.”

Finally, Congress learned that “[ijt is not unusual for a

college woman victimized by rape, to drop out of school

altogether. And, even if a woman does not drop out, she may

feel it necessary to interrupt her college career simply to avoid

her attacker.” 1991 S. Hrg. 243 (National Federation of Business

and Professional Women, Inc.). Indeed, the legislative record is

replete with instances where abusive husbands prevented their

wives from securing an education, or where, as is alleged here, a

violent sexual assault impelled the victim to quit or transfer

schools.'* Brzonkala’s own experience epitomizes the evidence

before Congress—that gender-based violence causes women like

Brzonkala to leave school, abandon jobs, or cease patronizing

certain businesses and forms of public transportation. See Staff

of Senate Comm. on Judiciary, Violence Against Women: A Week

in the Life of America 9 (Oct. 1992) (“Violence against women

affects everyday lives, imperils jobs, infects the workplace, ruins

leisure time and educational opportunities.”’).

In short, the legislative record demonstrates all too clearly

that gender-based violence “permeates every aspect of women’s

lives. It alters where women live, work, and study, as they try to

be safe by staying within certain prescribed bounds,” 1991 S.

' See, e.g., 1994 H.R. Hrg. 15 (Karla M. Digirolamo) (fled with child out of

state); Apr. 1993 S. Hrg. 75 (Dr. John Nelson) (telling story of abused woman

who had fled across seven states with her eighteen-month-old child when her

husband tracked her down and shot the child in the head, killing him), 1992

H.R. Hrg. 55 (Jane Doe) (battered in four different states and seven different

cities), 1990 S. Labor Hrg. 32 (Sarah M. Buel) (fled from New York to New

Hampshire, and after husband hunted her down, moved virtually every year of

son’s fifteen years of life).

'* See, e.g., Nov. 1993 S. Hrg. 41 (Jennifer Tescher) (lost interest in school

after rape in sorority house); 1991 S. Hrg. 132-33 (Amy Kaylor) (after rape,

dropped out of school for a quarter and ultimately lost the funding for her

college education), 1990 S. Hrg., Pt. 2, at 6 (Christine Shunk) (transferred

schools after one rape, and flunked classes, delaying her graduation, after a

second rape), 139 Cong. Rec. 31,291 (1993) (Rep. Olver) (describing letter

from woman whose husband would not permit her to “get an education because

he believed she would cheat on him or run away when she went to classes’’).

Hrg. 253 (Dr. Leslie R. Wolfe), relegating women to “a form of

second-class citizenship.” 1990 S. Hrg., Pt. 1, at 57 (Helen R.

Neuborne). Thus, unlike the vague multi-step “cost of crime”

rationale that this Court rejected in Lopez—where gun possession

near a school might lead to violent crimes, which might adversely

affect the learning environment, which might lead to a less

productive citizenry, and which, finally, might have an adverse

effect on the national economy—the connection between gender-

based violence and interstate commerce is substantial and direct.

2. The court of appeals failed to appreciate, however, that

the question is not whether it was satisfied that gender-based

violence exerts these effects on interstate commerce, but instead,

whether Congress’ legislative judgment that it does, was rational,

as it surely was. See Lopez, 514 U.S. at 563 (Court evaluates

“the legislative judgment” that a particular activity substantially

affected interstate commerce). This Court reaffirmed in Lopez

that federal statutes enacted pursuant to the Commerce Clause

remain subject to rational basis review. Jd. at 557; see also id. at

568 (Kennedy, J., concurring) (counseling reviewing courts to

exercise “great restraint”). Accordingly, a “court must defer to

a congressional finding that a regulated activity affects interstate

commerce, if there is any rational basis for such a finding.”

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.

264, 276 (1981) (emphasis added); accord Preseault v. ICC, 494

U.S. 1, 17 (1990).

Nowhere has this Court been more sensitive to Congress’

discretion in exercising its broad Commerce Clause authority

than when, as here, Congress has determined that a particular

class of conduct obstructs a discrete group’s participation in

commercial intercourse and thus warrants a federal response. In

Katzenbach v. McClung, 379 U.S. 294 (1964), for example, the

Court sustained the application of Tie II of the Civil Rights Act

of 1964 to Ollie’s Barbecue, a family-owned restaurant in

Birmingham, Alabama, which served a local clientele. The Court

relied on evidence before Congress establishing that race

discrimination in restaurants had “‘a direct and highly restrictive

effect” upon interstate travel and hindered interstate commerce

by affecting the volume of interstate goods sold and the success

of local businesses. /d. at 300. Because Congress could find that

racial bias by restaurants adversely affected commerce, the Court

rejected the argument that Congress was required to include a

provision compelling a case-by-case determination of the impact

on interstate commerce. Jd. at 303; see also Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 258 (1964).

Likewise, in upholding the extension of the Age

Discrimination in Employment Act to state employers, this Court

relied on the damaging economic impact of age discrimination,

which “deprived the national economy of the productive labor of

millions of individuals” and “inflicted on individual workers the

economic and psychological injury accompanying the loss of the

opportunity to engage in productive and satisfying occupations.”

EEOC v. Wyoming, 460 U.S. 226, 231 (1983). As the Court had

put it in McClung: “this type of discrimination imposed ‘an

artificial restriction on the market’ and interfered with the flow

of merchandise.” 379 U.S. at 299-300; see aiso Daniel v. Paul,

395 US. 298, 307 n10 (1969) (recognizing that if

“establishments narrow their potential markets by artificially

restricting their patrons to non-Negroes, the volume of sales and,

therefore, the volume of interstate purchases will be less”)

(citation omitted).

The same holds equally true for gender-based violence. As

documented above, Congress found that such violence likewise

“deprive[s] the national economy of the productive labor of

millions” of women and inflicts on women severe and dislocating

“economic injury” because of the loss of opportunity for women

to engage fully in the activities that are the lifeblood of our

national economy. The singling out of women to bear the brunt

of so many crimes of violence imposes an “artificial restriction

on the market” as serious as that presented by race discrimination

in public accommodations and one that merits an equally serious

federal response. See 1991 S. Hrg. 116 (Prof. Cass Sunstein)

(“Congress could reasonably find . . . that the existence of sex-

related violence ‘overhangs the market,’ in the sense that it

discourages women from working in jobs and travelling to places

ene ee ee ee ee ‘

in which sex-related violence occurs.”); see Lopez, 514 US. at

574 (Kennedy, J., concurring) (recognizing that Congress can

regulate on the assumption that “we have a single market and a

unified purpose to build a stable national economy”).

Once Congress, after undertaking a careful investigation into

a national problem of the highest order, makes specific findings

justifying the exercise of its authority under the Commerce

Clause, Congress’ duty is discharged, its task complete, and its

action entitled to a strong presumption of constitutionality.

B. Congress Deliberately Selected a Remedy That

Respects Principles of Federalism.

This Court struck down the legislation in Lopez not only

because of a perceived weakness in the link between gun

possession near a school and commerce, but also because of

concerns about the statute’s intrusion into state prerogatives.

Section 13981, by contrast, was narrowly drafted with the

specific goals of minimizing any such invasion and maximizing

cooperation between the federal and state governments in their

fight against gender-based violence.

First, although the court of appeals’ majority repeatedly

referred to the civil mghts remedy as a statute which

“criminalize[s]” conduct, eg, Pet. App. 125a,_ that

characterization is plainly incorrect. Section 13981 is a civil

rights statute that authorizes a civil cause of action; it is not a

criminal statute. Whereas, in the Court’s view, the Gun-Free

School Zones Act blurred the lines of political accountability and

upset the federal-state balance by duplicating the criminal laws

of more than 40 states barring the possession of firearms on or

near school grounds, and by undermining innovative programs in

many states designed to encourage the voluntary surrender of

firearms, id. at 581-82 (Kennedy, J., concurring), § 13981 does

no such thing. Unlike the gun possession statute, which added a

“redundant layer of federal regulation in an area where most

states had already acted,” Pet. App. 276a (Motz, J., dissenting),

§ 13981 responds to ‘the states’ self-described needs without

preempting or interfering with state prosecutions in any way. See

Part Il, Section A(2), infra (describing state task force reports).

Equally important, in contrast to the Gun-Free School Zones

Act, § 13981 does not invade any area of traditional state

concern. In 1991, the federal and state judiciaries voiced

concerns that the civil mghts remedy would federalize domestic

relations law and unduly burden both federal and state courts.

See 1993 H.R. Hrg. 74-76 (1991 Report from the Judicial

Conference of the United States); 1991 S. Hrg. 314-17

(Conference of Chief Justices); 138 Cong. Rec. 582, 583 (1992)

(Chief Justice Rehnquist, 1991 Year End Report on the Federal

Judiciary). Based on this same assumption that the provision

would federalize many domestic disputes, the Admunistrative

Office of the U.S. Courts predicted that the civil nghts remedy

would “significantly affect the courts and their administration”

by generating as many as 53,800 civil tort cases annually, with a

projected 13,450 annual case filings expected in the federal

courts. 1991 S. Hrg. 15-16.

Congress responded to these concerns. In the spring of

1993, then-Chairman Biden and Senator Hatch took the lead in

negotiating modifications to the civil nghts remedy specifically

to narrow its scope, preserve state spheres of authority, and

minimize the statute’s effect on domestic relations law. These

bipartisan revisions were incorporated in the version of S. 11

reported favorably out of the Senate Judiciary Committee later

that year. First, the Committee strove to preserve the states’

voice in enforcing the new night to be free from gender-based

violence by giving state courts concurrent jurisdiction to enforce

the statute, § 13981(e)(3), and by barring the removal to federal

court of any state court action asserting claims under § 13981.

28 U.S.C. § 1445(d); compare S. 11 (as introduced), with 1993

S. Rep. 30 (S. 11 as amended).

Second, the Committee carefully avoided supplanting state

tort law by clarifying that to be “motivated by gender” within the

meaning of the provision, a crime of violence not only had to be

committed “because of gender or on the basis of gender,” but it

also had to be “due, at least in part, to an animus based on the

victim’s gender.” § 13981(d)(1); compare S. 11 (as introduced),

— ages ee ee

with 1993 S. Rep. 30 (S. 11 as amended). Congress recognized

that while women often are subject to Pent for moog so

reasons as men (such as for robbery, burglary, larceny, and motor

vehicle theft), “women also are victims of violence simply

because they are women.” 1991 S. Hrg. 262 (Dr. Leslie R.

Wolfe). Accordingly, Congress drafted the statute specifically to

target that gender bias; moreover, by enacting a civil rights

Statute that requires invidious discriminatory motivation,

Congress also avoided creating “a general federal tort law.” 1993

S. Rep. 51 (citing Griffin v. Breckenridge, 403 U.S. 88, 102

(1971)).

Third, the Committee limited the statute so that it did not

reach even all violent crimes motivated by gender animus. Only

the most serious offenses, felonies, now qualify as a “crime of

violence” under the statute. § 13981(d)(2)(A); compare S. 11 (as

introduced), with 1993 S. Rep. 30 (S. 11 as amended). Finally

and most importantly, the Committee narrowed the civil nghts

remedy so as to deny federal courts supplemental jurisdiction

over state law claims “seeking the establishment of a divorce,

alimony, equitable distribution of marital property, or child

custody decree.” 42 U.S.C. § 13981(e)(4); see also 1993 S. Rep.

51 (the civil rights remedy “does not involve the Federal courts

in divorce cases or domestic relations disputes”); 1991 S. Rep.

48.'° Senator Hatch, as well as Senator Biden, was satisfied that

Congress had been sufficiently sensitive to the important role of

the States in addressing gender-based violence and that the

revised provision struck the right balance between federal and

state authority. See 139 Cong. Rec. 30,107 (1993) (Sen. Hatch)

(“Despite some misconceptions, this measure does not make

every sexual assault or rape a Federal offense. Rather, it

recognizes that there is a proper role for the Federal Government

- Perversely, the Fourth Circuit took this exclusion of federal jurisdiction over

state family law to imply that § 13981 does federalize state family law. Pet.

App. 46a. It is difficult to see how § 13981 arrogates jurisdiction to the federal

courts over family law matters when the statute explicitly precludes such

jurisdiction.

in assisting the States in fighting violence against women.”). 7

After these significant changes were made to the civil nghts

remedy narrowing its reach, the Judicial Conference dropped its

opposition. 1993 H.R. Hrg. 70-71 (Letter from Judge Stanley

Marcus, Chairman, Ad Hoc Committee on Gender-Based

Violence). State officials, moreover, far from worrying about

any supposed federal intrusion into state affairs, actively urged

Congress to pass the Violence Against Women Act, including its

civil nghts remedy.'® Likewise, 33 Attorneys General have asked

this Court to uphold the civil nghts remedy because they “agree

with Congress that gender-based violence substantially affects

interstate commerce and the States cannot address this problem

adequately by themselves.” Amicus Bnef of | the States of

Arizona, et. al. in Support of the Petition for a Wnt of Certioran,

at 1. Significantly, the judiciary’s concern about the potential

impact of the statute on federal and state court case loads has not

come to fruition. Although the precise number of cases filed is

not known, there have been far fewer than one hundred reported

cases asserting claims under § 13981 in federal court, and only

a handful of reported cases in state court, since the statute’s

enactment in 1994.

Nor does § 13981, as the court of appeals feared, presage a

new era of federal regulation of all crime, all domestic relations,

and the like. See Pet. App. 89a. The statute simply represents an

exercise of Congress’ established power to remove obstructions

to interstate commerce, whatever their source. National Labor

Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32, 37

(1937). As the vast majority of states have agreed, the problem

of gender-based violence is national and interstate in nature, and

‘© See 1993 HR. Hrg. 34-36 (Letter from 41 Attorneys General urging

Congress to pass the Violence Against Women Act, including its civil nights

remedy, because “the problem of violence against women 1s a national one,

requiring federal attention, federal leadership, and federal funds”), id. at 30-32

(National Association of Women Judges); 1991 S. Hrg. 37-38 (Resolution from

the National Association of Attorneys General). But see 1993 HR. Hrg. 77-84

(Conference of Chief Justices, expressing continued opposition to the civil

rights remedy).

accordingly “transcend[s] the abilities of State law enforcement

agencies.” 1993 S. Rep. 62. When the states fail to solve a

national problem with a substantial Impact on interstate

commerce, Congress is free and duty-bound to act.

Il. THE CIVIL RIGHTS REMEDY IS A VALID

EXERCISE OF CONGRESS’ POWER TO ENFORCE

THE FOURTEENTH AMENDMENT.

Congress also enacted § 13981 as a means of redressing

formal and informal biases against the victims of gender-based

violence that prevailed in state legal systems across the country.

Congress’ determination that such a remedy was appropriate to

enforce the Fourteenth Amendment Equal Protection Clause is

also entitled to great weight. As this Court recently reaffirmed:

“It is for Congress in the first instance to ‘determin[{e] whether

and what legislation is needed to secure the guarantees of the

Fourteenth Amendment,’ and its conclusions are entitled to

much deference.” City of Boerne v. Flores, 521 US. 507, 536

(1997) (citation omitted).

Much as it did in Lopez with respect to the Commerce

Clause, this Court held in Boerne and Florida Prepaid

Postsecondary Education Expense Board vy. College Savings

Bank, 119 S. Ct. 2199 (1999), that Congress was without power

to enforce the Fourteenth Amendment without building a

sufficient legislative record to justify its action. In Boerne, the

Court held that by reinstating a standard of review for free

exercise of religion claims not required by the First Amendment,

the Religious Freedom Restoration Act impermissibly attempted

to “alter[] the meaning of the Free Exercise Clause.” 521 US. at

519. The Court rejected the claim that the statute advanced the

narrower and clearly legitimate aim of redressing laws that

unconstitutionally discriminated against religious beliefs and

practices because “RFRA’s legislative record lacks examples of

modem instances of generally applicable laws passed because of

religious bigotry.” Jd at 530.

Similarly, in Florida Prepaid, the Court ruled that the Patent

Remedy Act, which purported to abrogate the states’ sovereign

immunity from claims of patent infringement, could not be

construed to enforce the Due Process Clause because the Court

found “little support for the proposition that Congress sought to

remedy a Fourteenth Amendment violation” in enacting the

statute. 119 S. Ct. at 2208. Searching the record in vain for the

“evil” or “wrong” that Congress intended to remedy, the Court

found that “Congress identified no pattern of patent infringement

by the States, let alone a pattern of constitutional violations.” /d.

at 2207. In the absence of “evidence of massive or widespread

violation of patent laws by the States,” the Court concluded that

Congress simply had “acted to head off [a] speculative harm.”

Id. at 2207-08.

By contrast, in enacting the Violence Against Women Act

civil rights remedy Congress did much more—meeting the new

challenges set for it by this Court’s recent decisions. As

described below, Congress identified and documented a

“massive” and “widespread” pattern of equal protection

violations by state actors, one that justified a federal response.

A. Congress Found Widespread Bias in State Legal

Systems Against the Victims of Gender-Based

Crimes, and Acted to Remedy That Bias.

Congress made specific findings justifying its enactment of

§ 13981 to enforce the Fourteenth Amendment. The Conference

Report stated:

State and Federal criminal laws do not. . . adequately

provide victims of gender-motivated crimes the opportunity

to vindicate their interests; existing bias and discrimination

in the criminal justice system often deprives 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. 385; accord 1993 S. Rep. 29 (same findings

originally intended for the statutory text).

This considered congressional judgment, which the court of

appeals dismissed out of hand as “legal boiler plate,” Pet. App.

152a, was predicated on a considerable record documenting

systemic gender bias and self-described failures by the states to

treat gender-based violent attacks with the same seriousness

accorded other major crimes. As the eviderce before Congress

revealed, crimes against women traditionally have been

perceived as anything but crime—“as a ‘family’ problem, as a

‘private’ matter, as sexual ‘miscommunication.”” 199] S. Rep.

37. Congress learned that state legal systems had remained

captive to archaic, stereotyped notions of the “proper place” for

women in the family and society—a legacy of the common-law

“rule of thumb.” Rooted in historic skepticism of the veracity

and gravity of charges of rape, 1991 S. Rep. 44 (citing Lord

Matthew Hale’s 17th century jury instruction that rape is a charge

“easily to be made and hard to be proved, and harder to be

defended by the party accused, tho’ ever so innocent”), official

and institutionalized suspicion of victims of gender-based

violence lives on, Congress determined, in the guise of formal

and informal barriers to justice not braved by victims of other

serious violent crimes. /d. at 44-48; 1993 S. Rep. 49-50, 55.

1. As Congress found when it enacted the Violence Against

Women Act, many victims of rape and other sexual assaults

enjoyed no legal recourse whatsoever under state law. For

example, when the bill was first introduced in 1990, the majority

of states either did not make marital rape a prosecutable offense

or downgraded it by allowing the crime to be charged only when

aggravating factors, not required in other cases of rape, were

present. 1993 S. Rep. 47 & nn.42-44, 55; 1991 S. Rep. 45 & nn.

49-50. Even sexual assaults by former husbands or boyfriends

were immunized in some states from prosecution. /d. at 45 n.50

(noting that some states had extended marital rape exemptions to

“cohabitants and formerly married persons’).

The marital rape exemption rests on “archaic notions about

the consent and property rights incident to marriage” that “are

simply unable to withstand even the slightest scrutiny.” New

York v. Liberta, 474 N.E.2d 567, 573 (N.Y. 1984) (holding that

the marital rape exemption violates the Equal Protection Clause).

The premise of the exemption is that “a woman was the property

of her husband and that the legal existence of the woman was

‘incorporated and consolidated into that of the husband.” /d.

(citation omitted). This premise reflects nothing but gender bias

in one of its worse forms, as this Court has recognized in other

contexts.'’ “Nowhere in the common-law world—indeed in any

modern society—is a woman regarded as chattel or demeaned by

denial of a separate legal identity and the dignity associated with

recognition as a whole human being.” 7rammel v. United States,

445 U.S. 40, 52 (1980) (rejecting an absolute privilege against

adverse spousal testimony). For this reason, many—but not

all—courts have invalidated their states’ exemptions or

“downgrades” for marital rape or sexual assault as in violation of

the Equal Protection Clause. "*

State interspousal tort immunity doctrines further

perpetuated archaic gender-stereotypes about the intrinsic

“unity” of husband and wife. The Senate Judiciary Committee

found that these doctrines erected yet another formal barner to

legal vindication for the victims of gender-based violence, this

time in state civil legal systems. 1993 S. Rep. 55; 1991 S. Rep.

45. When Congress was considering the Violence Against

Women Act, interspousal tort immunity barred women in ten

states from suing her spouse under state tort law after a brutal

attack. See 1990 S. Hrg., Pt. 1, at 64 (NOW Legal Defense and

Education Fund). Not surprisingly, these laws frequently met the

7 See, e.g., United States v. Virginia, 518 U.S. 515, 534 (1996)

(“[C]lassifications may not be used, as they once were, to create or perpetuate

the legal, social, and economic inferiority of women.”) (citation omitted),

Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982) (“Care must

be taken in ascertaining whether the statutory objective itself reflects archaic

and stereotypic notions.”), Craig v. Boren, 429 U.S. 190, 198 (1976) (Court has

rejected “increasingly outdated misconceptions concerning the role of females

in the home rather than in the ‘marketplace and world of ideas’” and other

'§ See, e.g., Merton v. Alabama, 500 So.2d 1301, 1305 (Ala. Cnm. App. 1986),

Williams v. Alabama, 494 So.2d 819, 830 (Ala. Crim. App. 1986), Warren v.

Georgia, 336 S.E.2d 221, 226 n.11 (Ga. 1985), Illinois v. M.D., 595 N.E.2d

702, 713 ll. App. Ct. 1992); Shunn v. Wyoming, 742 P.2d 775, 778 (Wyo.

1987).

same fate as their criminal counterparts, with many courts

declaring them to be in violation of the Equal Protection

Clause.'’ Still other legal requirements unique to crimes of

sexual violence conspired to prevent women from bringing their

attackers to justice. See 1993 S. Rep. 45-46; 1991 S. Rep. 44-47.

That some states have reformed these laws does not mean

that all states have done so. A victim hardly should be forced to

wait and suffer flagrant violations of her constitutional rights

until an appropriate case comes along to present a state court

with an opportunity to strike down an offending law” or until her

state legislature is motivated to act—assuming that such action

is even effective.” And neither should Congress.

2. In concluding that “[w]omen often face barriers of law,

of practice, and of prejudice not suffered by other victims of

discrimination,” 1993 S. Rep. 49, Congress relied, in part, on two

dozen studies by state task forces on gender bias. See id at 49 &

n.52; 1991 S. Rep. 34, 43-44 & n.40. Congress found that

“[s]}tudy after study has concluded that crimes disproportionately

'* See, e.g., Moran v. Beyer, 734 F.2d 1245, 1248 (7th Cir. 1984) (“[We

cannot find it at all rational to believe that the Illinois legislature's desire to

protect manta] harmony 1s fulfilled by (the statute], which does little more than

grant one spouse almost unconditional license to make his marnage partner a

sparing partner. We are, therefore, compelled to declare it unconstitutional.”);

see also Jones v. Jones, 376 S.E.2d 674, 675 (Ga. 1989), Burns v. Burns, 518

So.2d 1205, 1211 (Miss. 1988), Estes v. Estes, No. WD-84-36, 1984 WL

14313, at *4 (Ohio. App. Oct. 19, 1984); Hack v. Hack, 433 A.2d 859, 868 (Pa.

1981); Price v. Price, 732 S.W.2d 316, 320 (Tex. 1987).

*° Ironically, because of the requirement of Article III standing, see Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992), court challenges to marital rape

exemptions have been beyond the victim's control. The validity of these

a een anne Sanaa eae eniient

claur benefit of a state mantal exemption challenged the exemption as

denying him equal protection. See, e.g., Liberta, 474 N.E.2d at 569.

*! Regrettably, Congress found that even when state legislatures have acted,

implementation of victims’ new rights has faltered. 1991 S. Rep. 46 (“The sad

fact 1s that law reform has failed to eradicate the stereotypes that drive the

system to treat these crimes against women differently from other crimes.”).

affecting women are often treated less seriously than comparable

crimes against men.” 1993 S. Rep. 49; accord 1991 S. Rep. 43.

“{C]ollectively,” Congress concluded, “these reports provide

overwhelming evidence that gender bias permeates the court

system and that women are most often its victims.” 1993 S. Rep.

49 (citation omitted); 1991 S. Rep. 43-44. Indeed, many state

task force reports candidly admitted that gender bias was

pervasive in their state legal systems.~”

Congress perceived that an important reason state remedies

have failed is “because legal rules and practices continue to shine

a spotlight of suspicion on the victim.” 199] S. Rep. 44.

Because of this “pervasive suspicion of rape victims’ credibility,”

1993 S. Rep. 45 (footnote omitted), courts, prosecutors, and law

enforcement officers frequently require additional corroboration

of victims’ testimony, such as physical injuries, a prompt

complaint, no prior contact with the defendant, and polygraph

exams. Jd. at 45-46; 1991 S. Rep. 44-47.

And “{a]s if the credibility issues were not burdensome

enough, survivors must also face pervasive victim-blaming

attitudes.” 1991 S. Rep. 47. The Committee pointed to “the

widespread belief that people who are raped precipitate in some

way, whether it be by dress having a drink in a bar, accepting a

ride in a car or accepting a date.” /d. (quoting 1991 S. Hrg. 136

(Gill Freeman)). This entrenched “boys will be boys” / “she

must have asked for it” mentality, 1993 H.R. Hrg. 8 (Sally

Goldfarb, Senior Staff Attomey, NOW Legal Defense and

Education Fund), is unique to gender-based violence. See Nov.

1993 S. Hrg. 48 (Julia Vigue, Rape Crisis Center) (“A double

standard is very, very clear. Sex crime is the one area of

criminality where we judge the offense not by the perpetrator but

by the victim.”). The notion that women cannot frequent bars,

22 See, e.g., 1991 S. Hrg. 135 (Gill Freeman, Chair, Florida Supreme Court

Gender Bias Study Implementation Commission), Administrative Office of the

California Courts Judicial Council, Achieving Equal Justice for Women and

Men in the Courts 5 (1990), Supreme Court of Georgia, Gender and Justice in

the Courts | (1991), Texas Gender Bias Task Force, Final Report 72 (1994).

Ne el ee ee a a. ie

accept a car nde or a date, or go out late at night without

assuming the risk of a violent sexual assault, is gender bias, plain

and simple. This assumption that the woman had precipitated or

“asked for” the attack boded particularly poorly for the victims

of “acquaintance rape,” which, as Congress learned, state

prosecutors routinely refused to prosecute. 1991 S. Rep. 47.

As further evidence of “the puzzling persistence of public

policies, laws, and attitudes that treat some crimes against

women less seriously than other violent crimes,” 1991 S. Rep.

33, witness after witness gave painful testimony regarding the

unwillingness of too many state police officers, prosecutors, and

even judges, to treat domestic abuse as the egregious crime that

it is,* leading Congress to conclude that “[g]ender bias

* See, e.g., 1993 H.R. Hrg. 9 (Sally Goldfarb) (reporting that the Oakland,

Califorma police department closed over 200 rape cases with little to no

investigation because they involved prostitutes and drug users, as well as

acquaintance rapes); 1991 S. Hrg. 137 (Gill Freeman) (reporting that

prosecutors in Florida are unwilling to pursue acquaintance rape cases).

** As one prosecutor observed, “Police work on domestic cases generally

reflect(s} the officers’ attitude toward these cases: That they are unimportant

and that they will go nowhere.” 1992 H.R. Hrg. 70 (Margaret Rosenbaum,

Assistant State Attorney), see, e.g., 1994 H.R. Hrg. 18 (Karla M. Digirolamo)

(police came when husband was kicking her while pregnant and told them “to

keep it down” and went on their way); id. at 119-20 (Donna Lawson) (bereaved

mother recounts the refusal of police to respond to daughter’s boyfriend’s daily

ritual of forcing her daughter’s car off the road, until finally, he killed her);

Nov. 1993 S. Hrg. 15 (Lisa) (after husband stabbed her in the back and drove

down the road dragging her from his truck, police commented that it looked like

a “push/shove match” had taken place and did nothing); Apr. 1993 S. Hrg. 12

(Loretta Baca) (police officer asked her why she was filing charges against

boyfriend for assault, given that she was “a Hispanic female and that was part

of [her] culture,” and prosecutor decided that “the only reason” she was filing

charges was because she was “mad” at the boyfriend and was “probably

already talking to him and sleeping with him”); id. at 82 (Barbara Wood,

Executive Director, Turning Point) (battered women often told by officers that

they cannot arrest the husband because “he might lose his job and that wouldn’t

be fair”), 1992 H.R. Hrg. 33-35 (Vivian Downing) (husband who shot her in

the neck, leaving her a quadriplegic, was never prosecuted); id. at 57-58 (Jane

Doe) (when police finally responded to call, they told her that if she wanted to

keep her children, she should return to the house and “work everything out”);

contributes to the judicial system’s failure to afford the

protection of the law to victims of domestic violence.” 1993 S.

Rep. 46. Even civil protection orders, when domestic violence

victims could obtain them, were of little use because of state

officials’ reluctance to enforce them.* Still others attested to the

official predisposition to discredit, blame, or stereotype the

victims of rape or sexual assault for their attacks.*° The inaction

in this case of Virginia Tech, a state entity, was unfortunately, all

too typical.

1990 S. Labor Hrg. 6 (Mary Pat Brygger, National Woman Abuse Prevention

Project) (study found that in 90% of domestic homicides, police had been

called to the home at least once, and in more than 50% of the cases, five or

more times), id. at 27 (Annette Stewart) (police responded to call and then left

while husband was beating her up because husband told police they were only

having a “domestic squabble”), id. at 77 (Barbara Zeek-Shaw, Project

Safeguard) (judge berated a pregnant battered woman requesting a restraining

order for “wasting the court’s time” and told her she “should act more like an

adult”, her husband subsequently beat, strangled, shot, and killed her).

> See, e.g., Feb. 1993 S. Hrg. 31, 33 (Rep. Barbara Gray) (restraining orders

not treated seriously), 1990 S. Labor Hrg. 28 (Annette Stewart) (police would

not enforce her protection order), 1990 S. Hrg., Pt. 2, at 99 (Tracy Motuzick)

(police refused to enforce restraining order against abusive husband, who

ultimately stabbed her thirteen times and broke her neck, leaving her

paralyzed); 139 Cong. Rec. 31,291-92 (1993) (Rep. Olver) (describing letter

from victim who had received 13 restraining orders against her husband, who

was not charged with over 200 counts of violating them).

which an attacker had shoved a screwdriver three inches into the victim's

stomach and raped her, that “the victim must have ‘incited’ or ‘provoked’ the

attacker”); 1992 H.R. Hrg. 40 (Jennifer Katzoff) (in response to her reported

rape, campus security told her that because she had opened the door and had

not screamed, that she “had asked for it, and that it was [her] fault”), 1991 S.

Hrg. 63 (Roland W. Burris, Attorney General of Illinois) (judge dismissed a

rape charge because the victim said that the attack took place at 10 a.m.

because he believed that no one would break into an apartment in the daylight,

with the shades up, and risk being seen by neighbors); id. at 293 (letter from

Dawn Bosshard) (state authorities told victim of gang rape that there was

nothing they could do, and one official asked her, “Isn’t it your fantasy to be

raped by four guys!”).

oP aye

Given this “double victimization” of women—first at the

hands of the attacker, and then, at the hands of the legal

system—it should come as no surprise that, as Congress found,

“[mlJany of those crimes are never reported, fewer are prosecuted,

and even fewer result in a conviction.” 1990 S. Rep. 42; see also

1993 S. Rep. 42; 1993 H.R. Rep. 25-26. Victims fared no better

in state civil justice systems. Although sexual assault is a tort in

every state, one study found that only 255 civil jury trials in

sexual assault cases had been conducted over a ten-year period

and that fewer than one percent of all victims had collected

compensatory damages. 1991 S. Rep. 44 & n.43.

3. Asa result of the overwhelming evidence of bias in state

legal systems, Congress was compelled to conclude: “From the

initial report to the police through prosecution, trial, and

sentencing, crimes against women are often treated differently

and less seriously than other crimes.” 1993 S. Rep. 42. Such

institutionalized and sweeping disregard for victims of gender-

based violence can hardly be dismissed as negligent or

inadvertent. See Pet. App. 153a-155a. While a state may have

no affirmative constitutional duty to protect its citizens absent

some “special relationship,” DeShaney v. Winnebago County

Dep't of Social Servs., 489 U.S. 189 (1989), a state “may not, of

course, selectively deny its protective services to certain

disfavored minorities without violating the Equal Protection

Clause.” Id. at 197 n3. It is clear that “[d]iscrimination in

providing protection against private violence [can] violate the

equal protection clause of the Fourteenth Amendment.” Bowers

v. Devito, 686 F.2d 616, 618 (7th Cir. 1982).

Thus, § 13981 “takes aim at gender-discrimination of the

type for which the 14th amendment provides heightened

scrutiny.” 1993 S. Rep. 55. As Congress properly concluded, in

no case does it have greater power to legislate to enforce the

Fourteenth Amendment than when, as here, “the criminal justice

system 1s not providing equal protection of the laws [to] women

in the classic sense.” Jd. (citing 1991 S. Hrg. 105 (Prof. Cass

Sunstein)); see also 1993 H.R. Hrg. 96 (James P. Turner, Acting

Assistant Attorney General) (the legislative record demonstrates

“a classic denial of equal protection”).

B. Congress’ Choice of Remedy in Responding to the

Failings of State Legal Systems Was Appropriate.

Finally, this Court has required legislation enforcing the

Fourteenth Amendment to display “a congruence and

proportionality between the injury to be prevented or remedied

and the means adopted to that end.” City of Boerne v. Flores,

§21 U.S. 507, 520 (1997). Relying on Boerne, the Fourth Circuit

denounced the civil rights remedy as both under- and over-

inclusive and thus lacking in both “congruence” and

“proportionality.” Pet. App. 157a-160a. Congress is entitled to

greater latitude than that allowed by the court of appeals.

Section 13981 is calibrated precisely to address the

constitutional violation that Congress had identified—the states’

systemic failure to afford victims of gender-based violence an

opportunity to vindicate their nghts on a par with other victims

of serious violent crime. Indeed, § 13981 is the only provision

in the Violence Against Women Act that directly empowers

these victims. As Congress explained: the civil nghts remedy

“puts another legal tool in victim’s hands to call their attacker to

account. Testimony before the committee shows that such

remedies are important because they allow survivors an

opportunity for legal vindication that the survivor, not the State,

controls.” 1990 S. Rep. 42; see also 1993 H.R. Hrg. 3 (Sally

Goldfarb); 1991 S. Hrg. 105 (Prof. Cass Sunstein); id. at 85-86

(Prof. Burt Neubome).

Nonetheless, the court of appeals condemned the statute

first, for not directly regulating the states themselves. Pet. App.

44a-45a, 157a. Yet Congress was not required, as the court

suggested, to enact a far more sweeping and intrusive remedy for

state failings, such as by preempting the states’ criminal and tort

laws altogether,”’ authorizing law suits directly against states or

” Congress deliberately struck a careful balance between directly preempting

discriminatory state laws, such as the marital rape exemption, and indirectly

codifying such bias. Thus, by design, § 13981 includes within its definition of

their officials, extending federal jurisdiction over family law

matters, denying states concurrent jurisdiction over actions

brought under § 13981, or by regulating a// violence against

women, regardless of the presence or absence of gender-based

animus. See Pet. App. 44a-45a, 89a, 131a-132a. What the court

of appeals saw as the statute’s vice is actually its virtue: that

Congress did none of these things underscores the care with

which it crafted the civil nghts remedy so as not to displace state

laws or burden state functions. That Congress could have gone

farther than it did, and taken action far more invasive to state

sovereignty, is no reason to find the civil rights remedy void for

lack of “congruence.”

To hold otherwise would be to force Congress to take action

that it knew to be as impractical and unwise, as it would be

punishing to the states. Congress had no intention of assuming

control over all of family law so that it could address the specific

problem of gender-based violence. Similarly, Congress is

without power to require the states to enact new laws more to its

liking. See New York v. United States, 505 U.S. 144 (1992).

The Fourteenth Amendment does not limit Congress to creating

“crime of violence” those acts that would constitute a federal or state felony but

for the relationship between the perpetrator and the victim; in other words, if

a man committed what, under state law, would amount to a “crime of violence”

but for the fact that the victim was his wife, § 13981 would furnish a remedy.

§ 13981(d)(2)(B). For the same reasons, Congress ensured that the commission

of a qualifying “crime of violence” under the statute did not tum on whether the

crime actually had led to criminal charges, prosecution, or conviction,

§ 13981(d)(2)(A), because Congress intended to redress the unequal

enforcement of such crimes in state legal systems, not validate it.

* Cf Preseault v. ICC, 494 U.S. 1, 18-19 (1990) (“{W]e are not at liberty . . .

to hold the [statute] invalid merely because more Draconian measures—such

as a program of mandatory conversions or a prohibition of all

abandonments—muight advance more completely the [congressional]

purpose.”); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.

264, 290 (1981) (‘Congress could constitutionally have enacted a statute

prohibiting any state regulation of surface coal mining. We fail to see why the

Surface Mining Act should become constitutionally suspect simply because

Congress chose to allow the States a regulatory role.”).

undesirable or unrealistic causes of action directly against the

states or their agents. Instead of penalizing the states, Congress

adopted the private attommey general model, in which private

individuals sue to vindicate their nghts while, at the same time,

motivating states to do a better job of protecting those nghts. See

City of Riverside v. Rivera, 477 U.S. 561, 574 (1986).

Section 13981’s alleged overbreadth is also no

constitutional defect. The court of appeals determined that the

statute’s remedy was “out of proportion” to any possible

unconstitutional state action because it reaches all victims of

gender-based crimes, all defendants who commit such crimes,

and all states, without regard to the adequacy of their laws and

enforcement efforts. Pet. App. 160a-l6la Yet it was

reasonable for Congress to conclude that to require an

individualized showing of state constitutional violations in each

and every case would have imposed an undue—and likely

impossible—burden of proof on the very victims whose access

to the legal system Congress intended to ease, not restrict.

Such discretionary choices are in keeping with Congress’

prophylactic power to effectuate the purposes of the Fourteenth

Amendment. The remedy Congress selected corresponded to the

nature of its findings: Congress found an across-the-board

failure by states to provide equal protection to the victims of

gender-based violence and responded by enacting an across-the-

board remedy to permit those victims to bypass the state systems

that too often had failed them.

CONCLUSION

As this Court recently recognized, “Our national experience

teaches that the Constitution is preserved best when each part of

the Government respects both the Constitution and the proper

actions and determinations of the other branches.” City of

Boerne v. Flores, 521 U.S. 507, 535-36 (1997). Proper respect

for the prerogatives of Congress requires that this Court uphold

the constitutionality of the Violence Against Women Act civil

rights remedy. Accordingly, Senator Biden respectfully urges

this Court to reverse the judgment of the court of appeals.

i ee Se 5 ee ee

iin me

Respectfully submitted,

JOSEPH R. BIDEN, JR., UNITED STATES SENATOR*

221 Russell Senate Office Building

Washington, D.C. 20510

(202) 224-5042

*Counsel of Record

AMICUS CURIAE

BRIEF

, Bupreme Court, U.S.

FILED

NOV 12 1999

la (a)

\ 4 CY/ - DERICE OF THE CLERK

Nos. 99-5, 99-29

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES OF AMERICA, PETITIONER

ANTONIO J. MORRISON, ET AL., RESPONDENTS

CHRISTY BRZONKALA, PETITIONER

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

s |

TABLE OF CONTENTS

Page(s)

INTERESTS OF THE AMICI CURIAE................:cccccceeeeees l

INTRODUCTION AND SUMMARY

Sr TE tncatiisiiinilbaddnsnticceniitaitnginanibitinmsineneninndetisiiiaes l

TET decsccsscincstnsnstnsetninmnitiniatabaiciemstinniisanuiteaestintasios 5

I. VAWA Is AN APPROPRIATE EXERCISE OF THE

COMMERCE CLAUSE POWER TO PROTECT THE NATION’S

ECONOMY FROM INJURIES RESULTING FROM VIOLENCE

I i 5

A. The Commerce Clause Empowers Congress To

Protect The Economy From Injuries Stemming from

TTT istniceticaiiemesimnichiarcisceliae ital 6

B. Congress Acted On A Compelling Record

Showing Direct and Substantial Injuries to

RN iaeiieliledihecidiialieti teh catiiailetaati tines iain iene 7

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...................0c00000+ 12

D. When Congress Deliberately Gathers Facts

To Address A Problem Of National Import, The

Court Must Be Careful Not To Intrude Lest It Violate

i, RN Se 15

ii '

iii

Page(s)

II. THE VIOLENCE AGAINST WOMEN ACT IS AN ,)

APPROPRIATE EXERC'SE OF CONGRESS’ POWERS TO 4 TABLE OF AUTHORITIES

ENFORCE THE FOURTEENTH AMENDMENT ...........00c0eeeseeeee0s 18

CASES CITED: Page(s)

A. Congress Found Pervasive and Entrenched

Patterns of Sex Discrimination in State Criminal Ankenbrandt v. Richards, 504 U.S. 689 (1992) .......ccccccceee. 14

SS TEER TS 18 Arlington Heights v. Metropolitan Hous. Dev. Corp.,

ee 24

B. Failure to Provide Women Equal Protection Carter v. Carter Coal Co., 298 U.S. §238 (1936) 0.0... 16

from Assault is a Core Violation of the Equal Protection City of Boerne v. Flores, 521 U.S. 507 (1997) ........cccc0000. 2, 4,

CIID. nnntctanconseinintatuntnunensnnniabianiantinesduntintaninstenniniianines 25 nan tennnnnnnnnnnnnnnnennenennnenennnenneesneressenes 5, 16, 23, 25, 26, 29

College Sav. Bank v. Florida Prepaid Postsecondary Educ.

C. The Civil Rights Remedy is Well Within | Expense Bd., 119 S. Ct. 2219 (1999) 000. 25, 28

Congress’ Broad Power to Remedy Violations of the Davis v. Monroe County Bd. of Educ., 119 S. Ct. 1661

BID orectccesienrnetninecsecstsvneeniesieneeins 25 EE ee 1]

Employmeni Div. v. Smith, 494 U.S. 872 (1990) .......cccccc000- 26

1. The Civil Rights Remedy is Not a . Florida Prepaid Postsecondary Educ. Expense Bd. v.

Pretext for Independent Congressional Interpretation ¥y College Sav. Bank, 119 §. Ct. 2199 (1999)........ 16, 28

OO i alll 25 4 Frontiero v. Richardson, 411 U.S. 677 (1973) ....cccccsessessees 24

ft Goesart v. Cleary, 335 U.S. 464 (1948) oo....ccccccccccccecceeseeeeeee 8

2. Congress Sought to Work in Partnership i Hammer v. Dagenhart, 247 U.S. 251 (1918) .ccccccccccssessseeoee 16

with the States in Remedying Constitutional Violations £; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241

While Respecting the States’ Primary Role in Criminal rf Ee 3, 5, 6, 7

Law Enforcement, and Narrowly Tailored the Civil 4 J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 (1994) .......... 24

Rights Remedy to Achieve These Ends................. 26 | Katzenbach v. Morgan, 384 U.S. 641 (1966) .......cccccccccceeeee 25

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

3. The Civil Rights Remedy in VAWA Loving v. Virginia, 388 U.S. 1 (1967) ........ccccccccccccccceeeeeeeeeee 24

Is National Because It Deals With a National Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)............ 17

Pe cs cerscctersscennenssmniinniannimntnanneamaenintal 29 McCulloch v. Maryland, 17 U.S. 316 (1819)........c0000. 15, 18

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

Ce ceensecececessnviccensenssesccenncnssnerscinnpsntesnsineniacnniiien 30 | _ssaennernsernneennennennnsernneenesnsenesenesnasoeneenneen 2, 5, 6

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) ........0000000. 11

ADDENDUM Mississippi Univ. for Women v. Hogan,

(Listing of Amici Law Professors) ...........:.:ssssssssssseeseeen 1A \ a nensommeuneman 24

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

Orr v. Orr, 440 U.S. 268 (1979) ........0cecersecsccercsorsessscereeseees 24

Table of Authorities (continued) Page(s)

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

saaianateaacatiatinnaseat aia tinceiti tianlian 24

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

Reed v. Reed, 404 U.S. 71 (1971) .......cc.-ccccececceeeeeeeesseceeeseeees 8

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

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

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

ceccincausstaailastaiescnateeamsinassesiesaeataaieniailal 7, 12, 13, 16, 17

United States v. Virginia, 518 U.S. 515 (1996) .............0000++ 24

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

eee 13

Bell v. Cuyahoga Community College, 1998 Ohio App.

LEXIS 3741 (Ohio Ct. App. 1998) ...........ccccceeeeeees 14

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

DEE ccencsnsnssteecenenreremnesnnenniicsnuiinenmianiemminamtiae 14

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

SET cnsnscacnmnantenessnncsnnsaneapinimasiiibeuenesniaiaimndnmiemmiitas 13

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

DI ccccenzsesancentnasessnsenenensnesnmesanessccememmtaniansemsemsentieaion 14

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

ON, yyy 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

Oe 14

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

(Bat Clie. BSD DP accoccccocsescssessescesssescncesessssccnsssesenessensese 14

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

UE 14

Table of Authorities (continued) Page(s)

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

I Fa 13

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

eee ee, ee 13

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

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

SE ear SE EE 14

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

16466 (N. D. Towa 1999) ooo... cccccccccccceecesceseeeeee 13

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

scaseemaiincestieentiticestarieneitaatinaaataiataiiaiinasitineainatiastastaicasaaaeaaeatn 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.

ENESCO e 13

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

MeCann v. Rosquist, 185 F.3d 1113 (10th Cir 1999)... 13

Newton on Bottling Co., 958 F. Supp. 248 (W.D.N.C.

cnesmmnanpanebaneuntidinanesssaiemmannssaiaiaataeaidapasseaeeseaaaes 13

Palazzolo v. Ruggiano, 993 F. Supp. 45 (D.R.1. 1998)................ 14

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

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

ER a ee 14

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

Ee 14

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

A 14

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

LEXIS 13532 (D. Kam. 1999) 0...........cccccccccecceseeseeceee 14

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

EERE RSE Ene CE 13

Table of Authorities (continued) Page(s)

STATUTES:

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4B UBL. GE CR be BEB accecsccccncsccsrsscssescssssescssseccnssesecsssssessesnseese ]

GB UBC. © CRBS ccocccssecvescccesscesscnsesssssssnssssnssssvessssenssssesscssssess 1, 26

4B UBL. B FRIED ccccecccccccsccscssscecsssssesecssssescnscsssnensssssnsssnnssesensens 2

4B UDC. © CSBBGIIT GP rccccccecccecesescesecessssscssescccssscesssssssncessnsssssaese 29

4B UBL. © CSE RGIIT TAO ccccccrecccsscessesssssscnssscszscsccssssssssssssecsssseese 2

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

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

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

an 21

TREATISES, BOOKS AND ARTICLES:

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

sccitnnaaaiaiiacmmmeasiasiasiaaiatmaiusiaaaiaeaiiasaiseataintadlimassiasiauatiuasmamiatinen 27

Boris |. BITKER, BITKER ON THE REGULATION OF INTERSTATE

AND FOREIGN COMMERCE (1999) .00000......cccccccceeeeeceeeeeees 16

Jennifer Gaffney, Amending the Violence Against Women Act:

Creating a Rebuttable Presumption of Gender Animus in

Rape Cases, 6 J.L. & POLY 247 (1991)........ccccceseeeeseees 20

Jill Hasday, Federalism and the Family Reconstructed, 45 UCLA

a ER, HERO CapIIIT cxenentennenncwrneenmenmmunmnentginnentnmnciemn 24

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

Printz and Principle?, \11 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)...................cceeeeeeeeeeeeeeeeeeeeeeees 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)..................00 24

Vii

Table of Authorities (continued) Page(s)

MISCELLANEOUS:

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

8 eT ea nT 27

137 Cong. Rec. H29230 (daily ed. 1991) ............ccccccceccecsseseeeeseeees 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.,

SU, Ss UD eansittencecnrtinresinnceiaiintiiatinirsciiiametiasetetiaittiel 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, 1993.00.00... 8

H.R. Conf. Rep. No. 103-711 (1994) ..00..0.ccccccccccccccceeeeeeees 11, 23

Kentucky Task Force on Gender and Fairness in the Courts 28

ERE EERE bana ce ae 22

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

Cong., 1st Sess., The Response to Rape: Detours on the

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

MODEL PENAL CODE § 213.1(1) (1980) .00.........ccccccccccccccesneeeeeeees 21

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

ES Ener Ce NE eS 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).............ccecscessesrsssesseees 9, 17, 19, 20, 22

S. Rep. No. 103-138 (1993) .0........ccccccccceceeeees 3, 11, 19, 20, 23, 27

Utah Task Force on Gender and Justice 60 (1990).............0cc0c000- 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

sneseannineneeetimunatieaan ihntunaneanaisdainiingeantainmsiatmsmaipini 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

Vill

Table of Authorities (continued) Page(s)

Violence Against Women, Victims of the System: Hearing Before

the Senate Comm. on the Judiciary, \02d Cong., |st Sess.,

8D en 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, 103d

Cong., Ist Sess., Apr. 13, 1993 ..........000 annie 1]

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

Judiciary, \01St Cong., 2d Sess., Jun. 20, 1990.............. 10

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

preparation and submission.

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.,

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.

2S. Rep. No. 103-138, 54-55 (1993).

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

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, 5i4 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).

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 constitutional 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.

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)

options in life sharply reduced.”

See also Senate Hearing ]993 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, \02d Cong. 239-41 (Apr. 9,

1941) (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).

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).

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).

- >»

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

Cc. 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).

oe hd

—— ae —_—— eS

“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."

'* 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);

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.1. 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. Old

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 cae 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).

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 1991, 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.

has heeded the words of McCulloch v. Maryland, 17 U.S.

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

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

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

2 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 |. BITTKER, BITTKER ON THE REGULATION OF INTERSTATE AND

FOREIGN COMMERCE §5.02-.04 (1999).

(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

commerce was not sufficient in this case, a host of

congressional 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

See Antony Barone Kolenc, Commerce Clause Challenges After

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

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

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).

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).

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 braw! 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 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) (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”).

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 failed 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

28 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”).

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 *»dgments 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

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 pro’ ection 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).

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. 1 (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).

= Te Oe Oe eS

incidentally impacts women, but a case concerning a 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).

etl ee

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 v.

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

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.

>2 In Boerne, there was abundant evidence that members of Congress

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

US. 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 Te

proportionality test introduced in Boerne thus functioned to distinguish

pretextual uses of remedial power from genuine ones.

oe Ne we 7

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 I received from one law

enforcement officer was: Please tell Congress we are drowning; we nezd

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).

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

8 IY ORRIN ow a ~

+2" Ree oe

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.

difficult to gain cooperation for necessary reforms in the ADDENDUM

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

oe gy

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

equal footing. position by the institution.)

The VAWA remedy is thus a proportionate and poe myo

congruent response to state violations of the Fourteenth ome w School

narrowly crafted to protect federalism interests,

pare ae s may Roger I. Abrams

and well within Congress’ enforcement powers as defined by '

bie Coun’ : Northeastern University School of Law

Bruce Ackerman

CONCLUSION Yale Law School

For these reasons, the judgment below holding Libby S. Adler

VAWA’s civil remedy unconstitutional should be reversed. Northeastern University School of Law

Respectfully submitted

Alexander Aleinikoff

Of Counsel Georgetown University Law Center

Anthony G. Amsterdam

kerman Amy Schulman*

a gee Piper Marbury New York University School of Law

Vicki C. Jackson Rudnick & Wolfe LLP init tee

Frank I. Michelman 1251 A f the Ameri nine : '

Judith meena New an 1a ase University of Southern California Law School

212/835-6000

- Frank Askin

*Counsel of Record Rutgers — State University of New Jersey, Newark

Barbara A. Atwood

University of Arizona College of Law

Ian 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

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 Iowa College of Law

Richard Delgado

University of Colorado School of Law

Don Doernberg

Pace University School of Law

Peter Edelman

Georgetown University Law Center

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 - Bloomingto

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

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

woe. a GR gs eer ee

Martha Minow

Harvard Law School

Marlene Amold 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

Elizabeth M. Schneider

Robin West

Brooklyn Law School

yn Georgetown University Law Center

Christopher H. Schroeder

a hace Christina B. Whitman

Duke U School of La

ny ——— University of Michigan Law School

Anthony J. Sebok ; .

Brooklyn Law School Stephanie M. Wildman

University of California at Berkeley School of Law — Boalt Hall

Gene R. Shreve :

Indiana University School of Law-Bloomington Susan H. Willioms

Indiana University School of Law - Bloomington

Reva Siegel S L. Winter

Yale Law School ;

- Brooklyn Law School

Peter L. Strauss

Columbia University School of La aaay Wi. Vale

ENS Ceny oa Boston University School of Law

Ruti Teitel :

N ; Kenji Yoshino

ew York Law Schoo Wate fame Meteed

Lea VanderVelde

titi Diane L. Zimmerman

fl Coll f

University of lowa College of Law New York University School 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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.