By Curt A. Levey
The Legal Times, March 29, 1999
In 1997, a panel of the U.S. Court of Appeals for the 4th Circuit upheld the civil remedy provision of the Violence Against Women Act against a federalism challenge in Brzonkala v. Virginia Polytechnic Institute, 132 F.3d 949. In his vigorous dissent, Judge Michael Luttig declared that the “statute pristinely presents the [Supreme] Court with the logical next case in its considered revisitation of the Commerce Clause.” Fifteen months later, Judge Luttig wrote the majority en banc opinion, 1999 WL 111891, that vacated the panel decision and struck down VAWA’s civil remedy.
With appeal of that March 5 ruling all but certain, Judge Luttig should soon see if the Supreme Court agrees with his analysis. If the Court grants review — as many observers expect — its decision in this case will determine not only the next step in the Court’s commerce clause jurisprudence, but also the future of federalism.
This groundbreaking case involves subtitle C of VAWA, which provides damages and other relief to victims of violence which is “motivated by gender.” The case stems from the alleged September 1994 acquaintance rape of Christy Brzonkala, a white student at Virginia Polytechnic Institute, by Tony Morrison and Jim Crawford, black athletes at the university. Although a university judicial committee and Virginia grand jury found insufficient evidence of rape, Brzonkala filed suit against the two men under Subtitle C.
The importance of the Brzonkala decision lies in the 4th Circuit’s reliance on two recent Supreme Court rulings — United States v. Lopez, 514 U.S. 549 (1995), and City of Boerne v. Flores, 521 U.S. 507 (1997) — that breathed new life into the principle that the federal government has enumerated (and thus limited) powers. Although that principle was unassailable from the time of the Founding Fathers through the early days of the New Deal, subsequent expansive readings of both the Commerce Clause and the Fourteenth Amendment’s enforcement clause effectively eviscerated this limitation on federal authority.
For the first time in 60 years, the Court in Lopez found a statute — the Gun-Free School Zones Act (criminalizing the possession of handguns near schools) — to be outside Congress’s authority to regulate interstate commerce. In City of Boerne, the Court struck down a law on the ground that Congress had exceeded its powers under the enforcement clause – the first such holding in decades. The statute at issue was the Religious Freedom Restoration Act (RFRA), which required state and local governments to exempt religious practices from most generally applicable laws and regulations.
One reason Brzonkala looms so large is that it is the first case in which an appellate court has struck down a federal statute under Lopez. Before Brzonkala, Lopez hung by a thread, treated as an aberration by appellate courts for four years. Perhaps the courts simply could not believe that, after 60 years of judicial acquiescence, the Supreme Court meant what it said in Lopez about enumerated powers. Review of Brzonkala would also determine whether City of Boerne was a one-time occurrence or the beginning of an era of meaningful limitations on Congress’s enforcement clause authority. If the Court grants certiorari, the fragile rebirth of the enumerated powers doctrine will be on the line. It is no exaggeration to say that Brzonkala would be the acid test of federalism.
The biggest obstacle facing the appellants — Brzonkala and the United States as Intervenor – is that Lopez and City of Boerne are difficult to distinguish. Writing for the majority in Lopez, Chief Justice William Rehnquist rejected the government’s contention that possession of firearms near schools “substantially affects” interstate commerce and thus is within Congress’s commerce clause authority. Adoption of that argument, he concluded, would require the Court “to pile inference upon inference.” Common sense requires the same conclusion about the connection between domestic violence, sexual assault, and interstate commerce.
City of Boerne is equally problematic for the appellants. It demands “congruence and proportionality” between 14th Amendment violations by the states – in this case, the alleged denial of equal protection to women – and Congress’s chosen remedy. Subtitle C of VAWA clearly fails that test because it is not targeted to states or instances in which denial of equal protection actually takes place. Moreover, it targets the wrong actors – the private perpetrators rather than the states and their agents. By focusing on purely private conduct, VAWA also violates the 14th Amendment’s state action requirement. Because lack of proportionality alone was enough to find RFRA unconstitutional, its absence and the lack of state action is surely enough to doom subtitle C.
Principle vs. Politics
The best hope for VAWA’s supporters is that the Supreme Court defers to politics rather than precedent. Politics is clearly on Brzonkala’s side here, as evidenced by VAWA’s title. As Judge Luttig observed, “No less for judges than for politicians is the temptation to affirm any statute so decorously titled.”
Ultimately, Lopez may be distinguished not by the relative effects of guns and domestic violence on interstate commerce, but instead, by the superior organizational skills, financial strength, and decibel level of VAWA’s constituency, when compared to supporters of the Gun-Free School Zones Act. Feminist advocacy groups may have lost some of their credibility in the last year, but they still carry a lot of clout on Capitol Hill and even in the Court. If the justices nonetheless choose to reaffirm their commitment to federalism, the symbolic appeal of VAWA will make their statement that much louder.
Whatever the Supreme Court’s holding in Brzonkala, it likely will be narrowly decided, given the slim majorities in the Court’s federalism cases this decade. The four dissenters in Lopez — Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg — clearly see no role for the courts in guarding state sovereignty. On the other hand, Justices Rehnquist, Clarence Thomas, and Antonin Scalia have signaled their willingness to enforce the enumerated powers doctrine. Justice Anthony Kennedy’s cautious concurrence in Lopez, in which Justice Sandra Day O’Connor joined, suggests that they will be the two swing votes if the Court reviews Brzonkala.
And keep in mind that Brzonkala would not be heard before the Court’s next term. If any of the justices were to retire before then, a Clinton-appointed replacement would likely do whatever hairsplitting is necessary to distinguish the case from Lopez and City of Boerne.
Undoubtedly, many Americans, and perhaps a few justices, will be tempted to ask: “Why is hairsplitting necessary? Who could possibly object to federal protection from rapists and wife beaters?” The answer is obvious if one remembers the text of the Constitution and the vision of the Founding Fathers.
But is subtitle C a winner when viewed in purely pragmatic, rather than constitutional, terms? Not by a long shot. It is debatable whether anyone, male or female, will really feel safer when faced with a Congress freed from any structural constraints. And there are many reasons why prevention of violence against women – and men – is best left to the states.
In his year-end report on the federal judiciary, Chief Justice Rehnquist expressed concern about the “pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime.” “Matters that can be handled adequately by the states should be left to them,” Rehnquist said. The Chief Justice warned Congress to avoid causing costly delays in federal court. To date, few cases have been brought under Subtitle C, but hungry plaintiff’s attorneys will gear up the moment the Court removes the constitutional cloud over VAWA.
VAWA is Symbolic, Redundant
Violence against women is exactly the kind of “highly publicized societal ill” that Rehnquist was talking about. Nonetheless, those who want to sacrifice constitutional principles on the altar of exigency should choose a more worthy statute than VAWA. It is a “particularly demagogic piece of legislation,” explains Michael Greve, CIR’s executive director, in his recent book Real Federalism. The act “rests on the contention . . . that America is being swept by a tidal wave of violent hate crimes against women . . . [and] state courts are allegedly unable or unwilling to provide appropriate relief.”
While violence against women is an important problem, the truth is that dramatic progress has been made in this decade toward reducing domestic violence and sexual assault. Virtually all that progress has come at the state and local levels, contradicting the claim that states are unable or unwilling to provide relief. Moreover, the United States argued in Brzonkala that subtitle C does not bar any conduct not already prohibited by state law.
It is not surprising that progress in combating domestic violence and sexual assault has occurred primarily at state and local levels. Critics of federalism have long argued that state sovereignty promotes a “race to the bottom,” as states relax their environmental laws, for example, to attract more business. If there is any truth to this notion, it should work conversely for crime. If states fail to adequately deter violent crime, the only thing they will attract is more criminals. State and local officials clearly have more incentive then the feds to take a real bite out of crime, rather than pass symbolic legislation.
Brzonkala’s attorneys and supporters have argued that state law failed her. However, after investigating her allegations, a Roanoke, Va., grand jury cleared both Morrison and Crawford, despite the region’s historically harsh treatment of black men accused of raping white women. One hopes Brzonkala’s supporters are not suggesting that state law will be found wanting until every accusation of violence made by women results in conviction. Moreover, she never pursued any tort claims against Morrison and Crawford in state court — a decision that had nothing to do with the inadequacy of state law. Brzonkala and attorney Eileen Wagner have repeatedly stated that they sued in federal court to create a test case for VAWA. “The Supreme Court was our original goal,” Wagner has said.
The plight of Morrison and Crawford, who have been dragged through the judicial system for four years as Brzonkala pursued university sanctions, criminal charges, and a federal test case, highlights a point often lost in the debate over the rights of female victims of violence. The rights of an alleged victim must be balanced against the rights of the accused.
In United States v. Gluzman, 154 F.3d 49 (2nd Cir. 1998), cert. denied March 22, 1999, Rita Gluzman, accused of killing her estranged husband, was charged by federal authorities under a criminal provision of VAWA in lieu of state murder charges. Several of VAWA’s provisions, including subtitle C and the criminal provisions, have gender-neutral language. Federal prosecution was motivated in large part by a desire to avoid New York state rules prohibiting convictions solely based on uncorroborated accomplice testimony. Regardless of what one thinks of those rules, we should be wary about giving the federal government power to subvert state-granted civil liberties any time it is tempted by politically correct symbolism or an unpopular defendant.
Better protection of the rights of the accused is just one reason liberals have nothing to fear if the 4th Circuit’s Brzonkala decision is affirmed. A philosophical victory for conservatives can be a pragmatic victory for liberals. If the proposed federal partial-birth abortion ban becomes law, liberals, including those on the Court, may soon be singing the praises of Brzonkala in their fight to invalidate the statute. They will very likely prefer the world of competitive federalism — in which some states choose to prohibit partial-birth abortions and others do not – over a nationwide federal ban. Their “race to the bottom” concerns about competitive federalism will suddenly appear less compelling.
As the next logical federalism case, Brzonkala will help shape the role of competitive federalism in the next century. Despite varying degrees of sympathy for VAWA, the justices may look beyond Brzonkala to the long-term impact of their decision. Indeed, the outcome of this case may hinge on what the justices expect will be the next federalism case after Brzonkala. Will it involve a partial-birth abortion ban or another federal hate crime statute? That answer may determine the future of federalism.