Women lose right to sue attackers in federal court

By Linda Greenhouse

The New York Times, May 16, 2000

WASHINGTON, May 15 — Declaring that “the Constitution requires a distinction between what is truly national and what is truly local,” the Supreme Court today invalidated a six-year-old provision of federal law that permitted victims of rape, domestic violence and other crimes “motivated by gender” to sue their attackers in federal court.

The 5-to-4 decision, striking down the civil remedy provision of the Violence Against Women Act, was the latest application of the court’s newly restrictive view of Congressional power and of the degree of deference that Congress is owed by federal courts.

Although one of the most sweeping of the justices’ decisions in this area recently, it will almost certainly not be the last.

Chief Justice William H. Rehnquist’s majority opinion rejected each of the two sources of constitutional authority that Congress had asserted as the basis for the legislation. The majority concluded that the civil remedy provision was neither a valid regulation of interstate commerce nor a proper means of enforcing the equal protection guarantee of the 14th Amendment.

The decision affirmed a ruling last year by the federal appeals court in Richmond, Va., dismissing a suit brought by a college student against two varsity football players whom she accused of raping her in her dormitory room shortly after the start of her freshman year.

The plaintiff, Christy Brzonkala, withdrew from Virginia Polytechnic Institute and brought her suit after learning that the football players, Antonio Morrison and James Crawford, would not be disciplined by the college.

When the defendants then challenged the constitutionality of the Violence Against Women Act, the federal government intervened in the suit to defend the law.

The law’s supporters argued that widespread violence against women, and fear of violence, had a negative effect on the nation’s economy, measured in the billions of dollars a year, by impairing the productivity and the mobility of female employees and students. To accept that reasoning, the chief justice said today, “would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit or consumption.” But a general police power is something “which the founders denied the national government and reposed in the states,” he added.

The Violence Against Women Act also has a criminal provision, making it a federal crime to cross state lines to engage in domestic violence or stalking. The Supreme Court last year refused to hear a challenge to that provision, which was not at issue in the case today but which the chief justice suggested in a footnote was constitutional because of the explicit requirement of interstate conduct. The law also provides federal money to the states for programs to prevent violence and assist victims.

Much of the attention and debate surrounding the law has focused on the civil damages provision at issue today, which the lower courts have applied some 50 times, a number that would probably have been larger had the law not been under a constitutional cloud. While most states have laws permitting people, including victims of sexual assaults, to seek damages against their attackers, Congress acted after dozens of studies showed that women seeking such relief faced considerable obstacles from state judicial systems that regarded sex offenses as unworthy of serious attention.

Senator Joseph R. Biden Jr., the chief Senate sponsor of the Violence Against Women Act, said at a news conference today that “this decision is really all about power: who has the power, the court or Congress?”

Senator Biden, a Democrat from Delaware, said there had been notable improvement in the states since Congress put the issue on its agenda in the early 1990’s. He predicted that the decision today “will have a lot less impact on violence against women than on the future role of the United States Congress,” adding, “The damage done to the act is not as bad as the damage done to American jurisprudence.”

Both Senator Biden and Senator Charles E. Schumer, a New York Democrat who was the law’s chief sponsor when he represented Brooklyn in the House of Representatives, said years of hearings before the legislation was passed had been aimed at compiling a record of the scope of the problem, to persuade the Supreme Court that a national solution was warranted.

“Just at a time when the economic and social conditions of the world demand that we be treated as one country and not as 50 states, the Supreme Court seems poised to undo decades and decades of a consensus that the federal government has an active role to play,” Senator Schumer said in an interview.

In a dissenting opinion today, Justice David H. Souter included three pages of the findings from various Congressional reports, and predicted that the majority’s “new judicially derived federalism” would eventually prove as serious a wrong turn for the court as the decisions of the 1930’s that, in rejecting elements of the New Deal, provoked the court-packing crisis of 1937. Referring to that episode’s “pedigree of near-tragedy,” Justice Souter said that “today’s decision can only be seen as a step toward recapturing the prior mistakes.”

The justices’ 5-to-4 division was familiar from a series of decisions over the last five years that have struck down federal laws or created new state immunities from the application of federal law. Beginning with its ruling in United States v. Lopez in 1995, which overturned a law against carrying a gun near a school and marked the first time since the New Deal that the court had invalidated a law as exceeding the power of Congress to regulate interstate commerce, the court has also struck down part of the Brady gun control law and laws making states liable to suit in federal court for patent and trademark violations. Earlier this year, the court ruled that states could not be sued by their employees for violating the Age Discrimination in Employment Act.

Joining Chief Justice Rehnquist in the majority today, as in all the other decisions, were Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Thomas wrote a brief concurring opinion to say that the court should have put Congress under an even tighter rein.

Justice Stephen G. Breyer wrote a dissenting opinion and also signed Justice Souter’s dissent, as did Justices John Paul Stevens and Ruth Bader Ginsburg.

Although the tone of the opinions today, totaling 71 pages, was quite muted, the gulf between the two factions of the court is wide and growing wider. The court has already granted review in three more federalism cases, and the decision today, United States v. Morrison, No. 99-5, is likely to inspire more challenges to the reliance of Congress on its authority to regulate interstate commerce. Federal environmental regulations that restrict the use of private property might present an inviting target for such a challenge, some students of these recent developments believe.

Chief Justice Rehnquist’s majority opinion today reiterated that the “economic nature of the regulated activity” was at the heart of any analysis of Congress’s exercise of its commerce authority. “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity,” he said.

The opinion stopped short of adopting a categorical rule that Congress can never do what it claimed to do in this law: address the aggregate economic effect of activity that itself may not be inherently economic. But the chief justice noted pointedly that the court had never endorsed such an approach. In any event, he said, the court is and will remain “the ultimate expositor of the constitutional text.”

In his dissenting opinion, Justice Souter said that when it came to “supposed conflicts of sovereign political interests implicated by the Commerce Clause,” the court should step back and let the political system work out the problem. Noting that 36 states had filed briefs supporting the law, he said it was “not the least irony” of the case that “the states will be forced to enjoy the new federalism whether they want it or not.”

Chief Justice Rehnquist said the provision could not be sustained under the 14th Amendment because it prohibits discrimination by states or “state actors” rather than the private individuals whose conduct is the target of this law.

Kathryn J. Rodgers, executive director of the NOW Legal Defense and Education Fund, which represented Ms. Brzonkala (pronounced brahn-KAH-lah), criticized the decision, saying it took “the federal government out of the business of defining civil rights and creating remedies.”

Michael E. Rosman, general counsel of the Center for Individual Rights, which challenged the law on behalf of the defendants, said the decision was a welcome reminder that “democratic majorities are limited by the text of the Constitution.”

“This was an effort by Congress to aggrandize its authority,” Mr. Rosman added, “and the court is now requiring Congress to toe the constitutional line.”