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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999

## Text

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,
v.

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

———— 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).

© See, e.g., 1993 S. Rep. 46 (citing Louisiana sheriff's response to scene in
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

27

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

28

“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

29

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.”).

30

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
V.

ANTONIO J. MORRISON, ET AL., RESPONDENTS

CHRISTY BRZONKALA, PETITIONER
V.

ANTONIO J. MORRISON, ET AL., RESPONDENTS

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF OF LAW PROFESSORS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS
Of Counsel
Bruce Ackerman Amy Schulman*
Jack M. Balkin Piper Marbury
Vicki C. Jackson Rudnick & Wolfe LLP
Frank I. Michelman 1251 Avenue of the
Judith Resnik Americas
New York, NY 10020-1104
212/835-6000

*Counsel of Record

s |

i

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

iV

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

v
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

vi
Table of Authorities (continued) Page(s)

STATUTES:

BB UBL. 6 BOGB CID ccccccccsnscescscssnsssccsesensesssensensessnsssssnnnsenssnscatnsanee 2
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

ee

a

l

BRIEF OF LAW PROFESSORS AS AMICI CURIAE IN
SUPPORT OF PETITIONERS

INTERESTS OF THE AMICI CURIAE

This case brings into play two of our basic
constitutional commitments: first, to a federal system that
both guarantees the States a major role and gives Congress
broad responsibility over interstate commerce, and second,
to a nationwide guarantee that all persons enjoy the equal
protection of the laws. Amici, law professors (identified in
an addendum below) who teach and write about
constitutional law, the federal courts or jurisprudence, will
discuss how the Violence Against Women Act (VAWA)
civil rights remedy is an apt response to the combined
demands of these constitutional commitments. '

INTRODUCTION AND SUMMARY OF ARGUMENT

In 1994, Congress enacted VAWA, a multi-faceted
statute responding to the inequality that women victims of
violence encounter in state justice systems and to the
economic injuries that this violence creates. The statute
provides funding to the states for criminal law enforcement
against perpetrators of violence, and for a variety of other
assistance. See generally 42 U.S.C. §§13931-14040. The
provision at issue here, Section 13981, creates a new federal
civil rights remedy for victims of violence resulting from
“animus based on the victim’s gender.”

' Consent has been given by the four parties to amici to file this brief.
In accord with Rule 37.6, no counsel for a party has authored the brief in
whole or in part nor has any one but amici and their counsel funded its
preparation and submission.

2

Unlike recent legislation invalidated by this Court,
the new civil rights remedy was enacted after four years of
deliberate congressional consideration of the ways violence
against women implicated two of Congress’ basic
constitutional responsibilities: to protect interstate commerce
and guarantee equal protection. Much of the evidence came
from state officials, and specifically state judiciaries, which
reported that state and local police, prosecutors and judges
were not yet providing equal protection for women.
Congress responded with substantial funding resources for
the states, but concluded that a supplemental civil rights
remedy was also necessary. This provision was drafted and
redrafted to respond to concerns of both state and federal
judges that state courts remain the adjudicators of domestic
relations law. Congress narrowed the statutory cause of
action to the most serious offenses, prohibited supplemental
jurisdiction over any state law claims involving divorce,
alimony or child custody, and denied removal of state
claims. See 42 U.S.C § 13981(d), (e)(1), (4); 28 U.S.C. §
1445 (d).

Creation of this civil rights remedy is well within
Congress’ powers under the Commerce Clause and the
Fourteenth Amendment. It is respectful of the federalism
principles articulated by this Court in United States v. Lopez,
514 U.S. 549 (1995) and City of Boerne v. Flores, 521 U.S.
507 (1997). It is consistent with long-established
constitutional allocations of powers to the federal courts and
the Congress. It should be upheld.

I. The national government has power, under the Commerce
Clause, to protect interstate and foreign commerce from
injurious obstructions, whatever their source, so long as the
regulated activities “substantially affect” commerce. Lopez,
514 U.S. at 559; see NLRB v. Jones & Laughlin Steel Corp.,

3

301 U.S. 1, 37 (1937). Since the 1960s, this Court and the
Congress have recognized the need to protect the national
economy from the injurious effects of discrimination that
disable members of historically subordinated groups from
participating fully in national economic life. Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964);
Katzenbach v. McClung, 379 U.S. 294 (1964). Congress
called on this power to enact VAWA.

Through its many hearings, Congress _ identified
specific harms to interstate commerce that amply satisfied
the Lopez requirement of a “substantial effect” on interstate
commerce. Extensive evidence from business organizations,
mental health professionals and individuals made plain that
the special hazards of violence faced by women limited their
choices, affecting the jobs women took, and the times, hours,
and places they worked. Violence against women harmed
the national economy in terms of workplace productivity,
the dollars lost to absenteeism, and health care costs. The
record fully supports the conclusion that violence against
women “restricts movement [and] reduces employment
opportunities.”

Unlike the statute in Lopez, VAWA’s civil remedy is
based on a well-identified and substantiated need to protect
commerce from the injurious effects of an environment of
violence against a “quasi-suspect” class of persons, women,
long treated by law and still treated by many as less than
fully deserving of participation in economic life. Congress’
approach is limited; it made no claim to general police
powers nor did it “federalize” criminal or tortious acts based
on some speculative and remote economic impact.

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

4

In reviewing the extensive factual basis established
for congressional action, the Court must take care not to
initiate a new era of judicial second-guessing of matters
properly for the legislature. Such an enterprise has no limits
or boundaries. Rather than embark on a boundless oversight
role, this Court should respect Congress’ decision to protect
the Nation’s economy from injuries that spring from gender-
based threats of violence.

Il. Congress’ extensive record demonstrates that state
criminal justice systems deny women equal protection of the
laws in the most fundamental sense: States fail to treat
violent assaults against women as seriously as they treat
violent assaults against men. Until recently, states regulated
rape and domestic violence in explicitly sex-based terms; and
Congress learned that this understanding of rape and
domestic violence as assaults on women remains pervasive.
Numerous witnesses and studies commissioned by the state
judiciaries reported that official responses to violence
continue to be shaped by stereotypical thinking. From the
initial report to the police through prosecution, trial and
sentencing, state actors take crimes against women less
seriously than other crimes. This differential treatment
violates the core command of the Equal Protection Clause:
that women are entitled to the same protection from assault
as men enjoy.

In creating VAWA’s civil rights remedy, the
Congress sought to enforce -- not to revise -- the core
guarantees of the Equal Protection Clause. The exercise of
this enforcement power raises none of the concerns
addressed in City of Boerne v. Flores. The basic purpose of
the Court’s proportionality test was to prohibit pretextual
uses of the enforcement power. Where there is no evidence
of pretext, Congress’s remedial powers under the Fourteenth

5

Amendment are broad and Congress is entitled to “wide
latitude” to design effective remedies. See Boerne, 521 U.S.
at 520.

Congress’ decision to create a civil remedy is
consistent with its larger purpose in enacting VAWA: to
work in partnership with the States to eradicate historic
forms of bias against women. Creating new damage or
injunctive remedies against the states or their officers might
have discouraged federal-state cooperation and interfered
with the everyday administration of criminal justice. By
contrast, VAWA’s narrowly crafted civil remedy encourages
state and local governments to work with victims of gender
motivated violence, leaving states as the primary guarantors
of protection of their citizens from violent assaults.

ARGUMENT

I. VAWA Is AN APPROPRIATE EXERCISE OF THE
COMMERCE CLAUSE POWER TO PROTECT THE NATION’S
ECONOMY FROM INJURIES RESULTING FROM VIOLENCE
DIRECTED AT WOMEN.

This Court recognizes that Congress does not have a
general police power. It cannot regulate simply because of a
remote or slight relationship between a local activity and the
national economy. United States v. Lopez, 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).

6

exerted to protect interstate commerce ‘no matter what the
source of the dangers which threaten it.” Jones & Laughlin,
301 U.S. at 37 (citing Second Employers’ Liability Cases,
223 U.S. 1, 51). Acting under this authority, Congress has
long protected the Nation’s economy from the injurious
effects of discrimination against racial minorities and
women.

A. The Commerce Clause Empowers Congress To
Protect The Economy From Injuries Stemming from
Discrimination.

By the 1960s, both the Congress and the Court came
to understand that one “‘source of the dangers which
threaten’” commerce, Jones & Laughlin, 301 U.S. at 37, is
discrimination. See Heart of Atlanta Motel v. United States,
379 U.S. at 257; Katzenbach v. McClung, 379 U.S. at 300-
01. The Court did not uphold the challenged anti-
discrimination laws because of the “insignificant” amounts
of food purchased in interstate commerce, McClung, 379
U.S. at 300-01, but because systematic, invidious
discrimination itself harms interstate commerce.‘ This same
power provides ample 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.

7

restaurants,” including lowered per capita spending by the
victims of the discrimination, the effect of discrimination in
discouraging travel, and the deterrence to professional and
skilled people moving into areas where such practices
occurred. McClung, 379 U.S. at 299-300. Likewise, Heart
of Atlanta Motel upheld the statute because of the
“overwhelming evidence of the disruptive effect that racial
discrimination has had on commercial intercourse.” 379 U.S.
at 257. As the Court explained,

“It was this burden which empowered
Congress to enact appropriate legislation, and
given this basis for the exercise of its power,
Congress was not restricted by the fact that
the particular obstruction to interstate
commerce . . .was also deemed a social and
moral wrong.” /d.

This history, recognized in Lopez, confirms that
Congress has the power to protect the national economy from
the injurious effects of pervasive discrimination that blocks
historically subordinated groups from equal participation in
national economic life. This well-settled constitutional
doctrine is now woven into the fabric of our national life and
public commitments.

B. Congress Acted On A Compelling Record
Showing Direct and Substantial Injuries to Commerce.

The evidence before Congress reflected a pattern of
gender motivated violence that was part of a framework of
law and practice discriminating against women persisting
into the modern era.’ In hearings around the country,

> For example, state laws prohibited women from entering particular

8

congressional committees learned how such violence
prevents women from competing with men for jobs and
income in the marketplace.

Several organizations presented data detailing the
barriers. James Hardeman, a Manager in the Polaroid
Corporation, described the workplace disruption and poor
job performance caused by violence against female
employees. He explained how the creation of workplace-
based counseling groups responded to battering -- when
violence against women stopped, women “secured better
jobs” in the company.°

The President of the National Federation of Business
and Professional Women (a bipartisan organization of
120,000 members) described the “enormous” “costs in lost
employment opportunities” to women victims of violent
assault:

“Violent crimes committed against
women employees directly impact their
ability to perform at work, their absenteeism
rates and the medical benefit costs to the
employer. . . .[W]omen find their employment

professions, see, e.g., Goesart v. Cleary, 335 U.S. 464 (1948) (upholding
state law excluding women from bar-tending) and provided legal
preferences to husbands over wives in various capacities, see, e.g., Reed
v. Reed, 404 U.S. 71 (1971) (invalidating preference for male over
female executors). For discussion of sex-based laws regulating sexual
assaults, see infra at 18-23.

® See Hearing on Domestic Violence: The Need to Concentrate the
Fight Against an Escalating Blight of Violence Against Women, Hearing
Before the Senate Comm. on the Judiciary, 103d Cong. 16 (Feb. 1, 1993)
(statement of James Hardeman, Manager, Counseling Department,
Polaroid Corp.) [hereinafter Senate Hearing 1993)

9
options in life sharply reduced.”

See also Senate Hearing ]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).

10

Many victims of sexual assault reported difficulties in
keeping or finding employment.’ The Commission on the
Status of Women of New York City reported that

“The economy, and therefore everyone’s
standard of living are affected in numerous
ways when women are the victims of
violence. . .when women do not accept jobs
because they fear the hours they would need
to work would be too risky . . .”"°

Congress learned of other adverse effects on the
national economy. The National Federation of Business and
Professional Women emphasized the substantial adverse
effect of violence against female employees on small
businesses.'' Witnesses estimated that businesses lost $3-5
billion annually “due to absenteeism” and loss of
productivity related to violence against women." Physicians
testified, for example, that at least 37% of female hospital

° See, e.g., Senate Hearing 1991, supra note 7, at 131-33 (testimony
of Amy Kaylor, from Toledo, Ohio); Violence Against Women: Fighting
the Fear, Examining the Rise of Violence Against Women in the State of
Maine and Other Rural Areas, Hearing Before the Senate Comm. on the
Judiciary, 103d Cong. 13-17 (Nov. 12, 1993) (testimony of Lisa);
Violence Against Women, Hearing Before the Subcomm. on Crime and
Criminal Justice of the House Comm. on the Judiciary, 102d Cong. 55-
58 (Feb. 6, 1992) (testimony of Jane Doe of New York City) [hereinafter
1992 House Subcomm. Hearing).

© 1992 House Subcomm. Hearing, supra note 9, ai 116 (statement of
New York City Commission on the Status of Women); see id at 117
(also noting harm to economy when women “cannot work because of
possessive/abusive spouses, or they are limited to working in places
where the spouse can maintain control or contact” ).

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

"2 See id. at 240; Women and Violence, Hearing Before the Senate
Comm. on the Judiciary, \0\st Cong. 58 (Jun. 20, 1990) (statement of
Helen R. Neuborne, Exec. Dir., NOW Legal Defense & Educ. Fund).

- >»

emergency room cases are due to abuse, and Representatives
learned of the Surgeon General’s conclusion that “battery is
the single largest cause of injury among women.”” Health
care costs, by some estimates, were $5-10 billion per year."

In sum, as the Senate Judiciary Committee reported,
the prevalence of violence against women in the United
States “restricts movement [and] reduces employment
opportunities” for women. S. Rep. 103-138, at 54 (1993)."
The conclusion Congress reached—that violence against
women, directed at them as women, harms the national
economy by preventing women’s equal participation, id—is
one that should come as no surprise to this Court, which has
reviewed the harmful effects of gendered violence in a
variety of settings."*

"See Violent Crimes Against Women: The Problems of Violence
Against Women in Utah and Current Remedies, Hearing before the
Senate Comm. on the Judiciary, 103d Cong. 74 (Apr. 13, 1993)
(statement of Dr. John Nelson, Deputy Director, Utah Dept of Health);
1992 House Subcomm. Hearing, supra note 9 at | (statement of Rep.
Schumer).

‘* Majority Staff Report, Senate Comm. On the Judiciary, 103d Cong.,
Ist sess., The Response to Rape: Detours on the Road to Equal Justice
14 (Comm. Print S. 103-147, 1993) (citing article in American Medical
News).

'° See H.R. Conf. Rep. No. 103-711, at 385 (1994) (violence against
women “deter[s] potential victims from traveling interstate, from
engaging in employment in interstate business, and from transacting with
business . . . in interstate commerce” with “substantial adverse effect on
interstate commerce. . . diminishing national productivity [and]
increasing medical and other costs”).

'* See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (sexual
harassment in workplace); Davis v. Monroe County Bd of Educ., 119 S.
Ct. 1661 (1999) (assaultive behavior toward schoolgirl). In Planned
Parenthood v. Casey, 505 U.S. 833 (1992), the Court noticed the
relationship between women’s freedom from physical violence in the
most intimate spheres of their lives and their ability to participate with

12

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

ee

—— ae —_—— eS

13

“rational” basis on which to conclude that violence against
women had very substantial effects on interstate commerce.
The detailed findings and extensive legislative record make
more than plain to the “naked eye,” Lopez, 514 U.S. at 563,
the injurious effects to the national economy resulting from
past failures to deter, prevent and penalize violence against
women.

Unlike the broadreaching relationship between
violence and the economy asserted in Lopez, VAWA
addresses a circumscribed arena. The direct effects of
violence against women on their participation in the national
economy were thoroughly documented—grown women lost
jobs, time from work, economic opportunities. By contrast,
the link between gun possession near schools to the national
economy seemed remote to this Court, built on a long chain
of assumed events.

Upholding VAWA will not “open the floodgates” to
an unlimited congressional power to federalize civil and
criminal law. To date, counsel have identified only 51 cases
with reported decisions in which plaintiffs asserted civil
claims under VAWA, and of these 23 (or 45%) involve
workplace (14/51), other commercial (2/51) or educational

(7/51) settings."

'* Cases involving workplace-related claims against employers or other
employees include McCann v. Rosquist, 185 F.3d 1113 (10" Cir 1999);
Henderson v. Heartland Press Inc., 1999 U.S. Dist. LEXIS 16466 (N. D.
lowa 1999); Grace v. Thomason Nissan, 1999 U.S. Dist. LEXIS 12711
(D. Ore. 1999); Whitaker v. Mercer County, 1999 U.S. Dist. LEXIS
14680 (D.N.J. 1999); Manikhi v. Mass. Transit Admin., 733 A.2d 372
(Md. Ct. Spec. App. 1999); Avila-Franco v. Worrell, 1998 U.S. Dist.
LEXIS 12129 (D.D.C. 1998); Mattison v. Click Corp., 1998 WL 32597
(E.D. Pa. 1998); Randa Truong v. Smith, 28 F. Supp. 2d 626 (D. Colo.
1998); Braden v. Piggly Wiggly, 4 F. Supp. 2d 1357 (M.D. Ala. 1998);

14

Finley v. Higbee Co., 1998 U.S. Dist. LEXIS 21010 (N.D. Ohio 1998);
Anisimov v. Lake, 982 F. Supp. 531 (N.D. Ill. 1997); Newton v. Coca-
Cola Bottling Co., 958 F. Supp. 248 (W.D.N.C. 1997); Crisonino v. New
York City Housing Auth., 985 F. Supp. 385 (S.D.N.Y. 1997); Bell v.
Cuyahoga Community College, 1998 Ohio App. LEXIS 3741 (Ohio Ct.
App. 1998). Other commercial settings include Wesley v. Don Stein
Buick, Inc., 985 F. Supp. 1288 (D. Kan. 1997) (claim by customer
against salesman); Palazzolo v. Ruggiano, 993 F. Supp. 45 (D.R.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).

:
4

15

As the States’ chief law enforcement officers
recognized in urging Congress to enact VAWA," the federal
and the state governments ‘have concurrent and
complementary roles to play in this effort. Congress gave
careful attention to federalism concerns in the lengthy
drafting process, designing a civil cause of action that does
not supplant any state remedies, and which limits the federal
remedy to the most egregious instances of gender motivated
violence. No state processes are reorganized by federal
mandate. No state officials’ time or tasks are
commandeered. Establishing a federal remedy against
perpetrators of gender-motivated violence is an appropriate
means of removing barriers to the full and equal participation
of women in the economic life of the nation.”

D. When Congress Deliberately Gathers Facts
To Address A Problem Of National Import, The Court
Must Be Careful Not To Intrude Lest It Violate The
Separation of Powers.

Congress has the primary constitutional responsibility
for developing appropriate responses to national economic
problems. For most of our constitutional history, the Court

'% See Senate Hearings 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.

16

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

21

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).

17

(1999), will not suffice. Requirements of substantiation.
however, should not be translated into requirements that
congressional “findings” mimic the judicial process. Rules
of evidence do not and should not apply, nor should court-
based burdens of proof arguments. Indeed, as Justice
Kennedy, concurring in Lopez counseled, judicial review
should be predicated upon “great restraint.” Lopez, 514 U.S.
at 568. See also Lujan v. Defenders of Wildlife, 504 U.S.
555, 580 (1992)(Kennedy, J., concurring) (noting Congress’
“power to define injuries and articulate chains of causation”
for standing purposes).

A decision striking down VAWA would be wholly
inconsistent with the Court’s foundational jurisprudence on
congressional power from 1937 forward. Were the Court to
conclude that the evidence of direct and substantial effects on
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

23
See Antony Barone Kolenc, Commerce Clause Challenges After

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

18

such an enterprise. The question under our Constitution is
not what injuries to commerce the Court might find (nor, as
to the Fourteenth Amendment, what remedies for
constitutional discrimination the Court could give). The
question is whether Congress had an adequate basis for
acting under the Commerce Clause in creating the civil
rights remedy in VAWA. As we have shown, the record
before Congress was more than adequate to demonstrate that
this is an arena in which Congress can lawfully act. To
overturn this law, enacted with care and deliberation on this
record, would indeed be to “pass the line which
circumscribes the judicial department . . . to tread on
legislative ground.” McCulloch v. Maryland, 17 U.S. at 423.

Il. THE VIOLENCE AGAINST WOMEN ACT IS AN
APPROPRIATE EXERCISE OF CONGRESS’ POWERS TO
ENFORCE THE FOURTEENTH AMENDMENT.

A. Congress Found Pervasive and Entrenched
Patterns of Sex Discrimination in State Criminal Justice
Systems.

Congress enacted VAWA’s civil rights remedy after
years of hearings that documented widespread patterns of sex
discrimination in state criminal justice systems. The
evidence before Congress demonstrated that states deny
women equal protection of the laws in the most fundamental
sense: States fail to treat violent assaults against women as
seriously as they treat other forms of violent assault. The
pattern of sex discrimination Congress uncovered is
pervasive, entrenched, and openly acknowledged by the state
judiciaries themselves:

“Study after study commissioned by the
highest courts of the States . . . has concluded

1a

eT

19

that crimes disproportionately affecting
women are often treated less seriously than
comparable crimes against men. Collectively
these reports provide overwhelming evidence
that gender bias permeates the court system
and that women are most often its victims.”

S. Rep. No. 102-197, at 43-44 (1991) (internal quotations
omitted) (citing Gender Bias Task Force Reports from 17
states); accord S. Rep. No. 103-138, at 49 (1993).

For centuries States have regulated rape and domestic
violence as assaults against women, and this explicit
understanding of the gender of the victims not only shaped
how state actors regulated such assaults in the past. As
Congress recognized, gender-based discrimination continues
in the administration of the criminal law today.

Historically, States regulated domestic violence in
explicitly sex-based terms:

“Until the 20" century, our society effectively
condoned family violence, following a
common-law rule known as the ‘rule of
thumb,’ which barred a husband from
‘restraining a wife of her liberty by
chastisement with a stick thicker than a man’s
thumb.””

Long after States formally repudiated a husband’s common-

* §S. Rep. No. 103-138, at 41 (1993); see generally Reva B. Siegel,
‘The Rule of Love’: Wife Beating as Prerogative and Privacy, 105 Yale
L.J. 2117, 2123-25 (1996) (discussing treatises and cases recognizing
the husband’s common-law prerogative to “chastise” or “correct” his
wife).

20

law prerogatives, law enforcement officials often refused to
intervene when husbands beat their wives. Until quite
recently, this denial of equal protection was announced in
openly sex-based terms.”

Like domestic violence, rape is a form of assault that
States have traditionally defined and punished in explicitly
sex-based terms. Following the common law, they also
allowed husbands to rape their wives with impunity. While
most States have now repealed or revised the marital rape
exemption, the record before Congress showed that, even
after these reforms, many States still refuse to protect women
from husbands who rape or assault them.”

In short, until quite recently, States often defined and
regulated rape and domestic violence in overtly sex-based

See Siegel, supra note 24, at 2150-74. As late as 1975, the Oakland
Police Department’s Training Bulletin on Techniques of Dispute
Intervention warned that “arrest will only aggravate the dispute or create
a serious danger for the arresting officers .. . when a husband or father is
arrested in his home.” Del Martin, Battered Wives 93-94 (1976) (quoting
Oakland Police Department’s training bulletin). Congress could
reasonably find that such discriminatory practices did not come to an end
with the elimination of gender-specific language from police manuals.
See, e.g., 1992 House Subcomm. Hearing, supra note 9, at 2 (statement
of Rep. Charles Schumer) (“For hundreds of years, the legal system
explicitly condoned violence against women... . . The rule of thumb
now is that domestic violence cases are nothing but lovers’ quarrels that
are best left to be resolved without the police and the courts.”).

26 When the Congress first began to consider the problem of violence
against women, it found that seven states did not define marital rape as a
crime and 26 other states allowed prosecutions only under restricted
circumstances. S. Rep. No. 102-197, at 45 n. 50 (1991)(citation omitted);
this pattern persists today. See Jennifer Gaffney, Amending the Violence
Against Women Act: Creating a Rebuttable Presumption of Gender
Animus in Rape Cases, 6 J. L. & Pol’y 247, 259 n. 51 (1997) (discussing
current status of marital rape exemption).

21

terms; some States still do.*’ Even if a State revises its rape
law in gender-neutral language, legislators, police,
prosecutors, judges, assailants and victims still understand
rape as a form of assault by men against women. As
witnesses emphasized, gender norms that have organized the
criminal justice system for centuries cannot be eliminated by
fiat or transformed overnight. As the Congress recognized,
State responses to assaults traditionally directed at women
have been deeply infected by various forms of stereotypical
reasoning:

“If these cases had involved the typical male
assault victim, our reactions might be far
different. Typically, we do not ask whether
the victim of a barroom 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”).

22

women it does not pose for others in our
society.”

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

Recent law reform efforts demonstrate just how
difficult it is to alter the invidious gender-based attitudes and
assumptions that have become institutionally entrenched
under centuries of prior practice.” “The sad fact is that law
reform has 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”).

23

and less seriously than other crimes. Police
may refuse to take reports; prosecutors may
encourage defendants to plead to minor
offenses; judges may rule against victims on
evidentiary matters; and juries too often
focus on the behavior of the survivors-laying
blame on the victims instead of on the
attackers.” S. Rep. No. 103-138, at 42
(1993).

B. Failure to Provide Women Equal Protection
from Assault is a Core Violation of the Equal Protection
Clause.

After years of hearings, Congress concluded that
“bias and discrimination in the [state] criminal justice system
often deprive[] victims of crimes of violence motivated by
gender of equal protection of the laws and the redress to
which they are entitled.” H. R. Conf. Rep. No. 103-711, at
385 (1994). The detailed testimony gathered, as well as the
numerous state task force reports examined in the legislative
process, did not simply uncover a long history of explicitly
sex-based regulation. It established that, even today, state
actors responsible for protecting citizens against assault
repeatedly engage in decision-making riddled with invidious
stereotypical *»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

24

a denial of equal protection of the laws in its most basic
sense. This concern clearly motivated the framers of the
Fourteenth Amendment, who feared that state governments
would fail to protect freed slaves from crimes of violence

perpetrated by private actors.”

Affording women equal 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 Equal Protection Clause guarantees persons equal protection of
the laws in all spheres; state actions affecting persons in family
relationships are no exception to this guarantee. See Loving v. Virginia,
388 U.S. 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

25

discrimination was rationalized by an attitude of ‘romantic
paternalism’ which, in practical effect, put women, not on a
pedestal, but in a cage.”); see also Planned Parenthood v.
Casey, 505 U.S. 833, 893, 898 (1992) (joint opinion of
O'Connor, Kennedy, and Souter, JJ.) (striking down spousal
notice requirement because it could provoke domestic
violence, and perpetuate constitutionally offensive common-
law assumptions about a husband’s dominion over his wife).

C. The Civil Rights Remedy is Well Within
Congress’ Broad Power to Remedy Violations of the
Fourteenth Amendment.

1. The Civil Rights Remedy is Not a Pretext

for Independent Congressional Interpretation of the
Constitution.

Congress has broad powers to enforce the Fourteenth
Amendment, and may legislate to prevent and remedy
violations of its terms. See, e.g, South Carolina 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

26

S.Ct. 2219, 2225 (1999)(noting that remedy must be genuine
attempt to enforce constitutional rights). If the use of
remedial power is not pretexual, Congress must be given
“wide latitude” to decide how best to remedy constitutional
violations. Boerne, 521 U.S. at 520.

This case raises very different issues from those
confronted in Boerne. In that case, the Court saw Congress’
use of remedial power as a pretext for revising the judiciary’s
interpretation of the Constitution’s meaning.” In this case,
there is no evidence of a similar congressional effort at
substantive reinterpretation. As a consequence, this Court
should give Congress “wide latitude” in determining the
most appropriate methods of remedying systemic and
continuing violations of the Fourteenth Amendment.

2. Congress Sought to Work in Partnership
with the States in Remedying Constitutional Violations
While Respecting the States’ Primary Role in Criminal
Law Enforcement, and Narrowly Tailored the Civil
Rights Remedy to Achieve These Ends.

>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

27

In enacting VAWA, Congress sought to work with
the States as partners in remedying and preventing violence
against women. State task forces across the nation had
discovered pervasive gender bias in state and local law
enforcement, and state officials looked to Congress for help
in solving a national problem.” Congress responded, through
VAWA, by authorizing $1.6 billion in funds, mostly to
States, local governments and Indian tribes to pay for (a)
rape prevention and education programs, (b) victim services
programs, (c) improved security in public transit, (d) the
construction and maintenance of battered women’s shelters,
and (e) funding for additional law enforcement to assist with
prosecution of cases of violence against women.™ The civil
rights remedy was yet another element in this federal-state
partnership. It is not an isolated intervention but part of a
total nationwide program to support and supplement state
and local law enforcement while respecting the primary role
of state governments in protecting citizens from violent
assault.

*® See Crimes of Violence Motivated by Gender, Hearing Before the

Subcomm. on Civil and Constitutional Rights of the House Comm.on the
Judiciary, 103d Cong. 35 (Nov. 16, 1993) (letter from 41 attorneys
general) ( “Our experience as Attorneys General strengthens our belief
that the problem of violence against women is a national one, requiring
federal attention, federal leadership, and federal funds.”); see also S.
Rep. 103-138 at 39 (describing hearing held during 102d Congress in
which attorneys general of Illinois and lowa “testified in support of a
comprehensive Federal response to violence against women, particularly
the need for a civil rights remedy”); Senate Hearing 1991, supra note 7
at 137 (Gill Freeman, Chair, Florida Supreme Court Gender Bias Study
Implementation Commission) (“The message 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).

28

Congress’ decision to create a civil remedy is
consistent with Congress’ larger purpose in enacting VAWA:
to work in partnership with the States to eradicate historic
forms of bias against women in the criminal justice system.
The new remedy vindicates the dignitary and material
interests of victims of gender-motivated violence, and
promotes a legal order in which all members are recognized
as equally worthy of protection from assault. Yet, like the
larger statute of which it is a part, the civil rights remedy
furthers these equal protection values in a federalism-friendly
fashion.

Given Congress’ interest in working with the States,
it is not surprising that it chose a civil action rather than
permitting injunctive or monetary relief against state officials
for discriminatory underprosecution. Such alternatives
would have required state and local officials to defend their
actions against charges of sex discrimination in federal court.
Given its broad remedial discretion, Congress surely has
power to conclude that suits against state officials would not
promote a federal-state partnership conducive to reform.
Moreover, unlike the legislation at issue in the College
Savings cases, Congress did not create a right of action
against states for damages. Instead, the funding provisions
of VAWA sought to enhance the fiscal capacity of the states
to prosecute violence against women.

For these reasons, Congress had ample authority to
create a civil cause of action against the perpetrators of
gender motivated violence. The VAWA civil rights remedy
does not commandeer state officials. It does not drain the
coffers of state law enforcement agencies, and it does not
displace state government functions. This solution allows
the federal government to take an important leadership role

8 IY ORRIN ow a ~

+2" Ree oe

29

while leaving the states with primary responsibility for
protecting citizens from physical assault.”

3. The Civil Rights Remedy in VAWA Is
National Because It Deals With a National Problem.

Congress did not attempt to limit VAWA to
particular States and local governments with histories of
underenforcement for two reasons. First, the record makes
clear that the problem of underenforcement was national. A
nationwide solution, like the nationwide suspension of
literacy tests in Oregon v. Mitchell, “may be reasonably
thought appropriate when Congress acts against an evil such
as racial discrimination which in varying degrees manifests
itself in every part of the country.” 400 U.S. 112, 284 (1970)
(Stewart, J., concurring).

Second, Congress’ desire to work with states rather
than against them also explains its creation of a nationwide
remedy. Had Congress attempted to single out individual
States as especially culpable, it would have been more

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

applied to a broader range of violence against women, Congress took
federalism values into account in deciding to limit the remedy to those
cases of violence where plaintiffs could show that the violence was “due.
. . to animus based on the victim’s gender.” 42 U.S.C. § 13981(d)(1).
Congress’ decision to focus the civil remedy on the most openly biased
forms of violence against women, rather than the full range of violent
assault against women, represents a federalism-sensitive judgment about
the circumstances in which it was most important to make federal fora
available, and presents none of the pretext or separation-of-powers
concerns with which Boerne is concerned. Boerne's proportionality test
is surely not intended to call into constitutional question congressional
acts of restraint motivated by federalism considerations. From this
perspective, VAWA’s civil remedy meets any reasonable understanding
of proportionality and congruence.

1A

30
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

2A

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

3A

Robert A. Burt
Yale Law School

Patricia A. Cain
University of lowa College of Law

Evan H. Caminker
University of Michigan Law School

Martha Chamallas
University of Pittsburgh School of Law

Neil H. Cogan
Quinnipiac College School of Law

David Cole
Georgetown University Law Center

Jan C. Costello
Loyola Law School

Clare Dalton
Northeastern University School of Law

Marcella David
University of 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

4A

Susan Estrich
University of Southern California Law Center

Cynthia R. Farina
Cornell Law School

Lucinda M. Finley
State University of New York at Buffalo

Martin S. Flaherty
Fordham University School of Law

James E. Fleming
Fordham University School of Law

John G.S. Flym
Northeastern University School of Law

Katherine M. Franke
Fordham University School of Law

Eric M. Freedman
Hofstra University School of Law

Stephen E. Gottlieb
Albany Law School

Abner Greene
Fordham University School of Law

Angela P. Harris
University of California at Berkeley School of Law — Boalt Hall

Lynne Henderson :
Indiana University School of Law - Bloomingto

SA

Susan N. Herman
Brooklyn Law School

Allan Ides
Loyola Law School

Lisa Ikemoto
Loyola Law School

Vicki C. Jackson
Georgetown University Law Center

Sheri L. Johnson
Cornell Law School

David Kairys

Temple University School of Law

Kenneth L. Karst
University of California at Los Angeles School of Law

Karl E. Klare
Northeastern University School of Law

Lisa A. Kloppenberg
University of Oregon School of Law

Larry Kramer

New York University School of Law
Seth Kreimer

University of Pennsylvania Law School
Pnina Lahav

Boston University School of Law

6A

Jane E. Larson
University of Wisconsin Law School

Sylvia A. Law
New York University School of Law

Charles R. Lawrence
Georgetown University Law Center

Frederick M. Lawrence
Boston University School of Law

Lawrence Lessig
Harvard Law School

Jean C. Love
University of lowa College of Law

David B. Lyons
Boston University School of Law

Catharine A. MacKinnon
University of Michigan Law School

Linda C. McClain
Hofstra University School of Law

Carrie Menkel-Meadow
Georgetown University Law Center

Michael Meltsner

Northeastern University School of Law

Frank Michelman
Harvard Law School

woe. a GR gs eer ee

7A
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

8A

9A
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0318%3A15. Public record. Not legal advice.