The Magazine

Sex, Violence, and the Supreme Court

The Constitution prevails over congressional pandering to feminists

May 29, 2000, Vol. 5, No. 35 • By JEREMY RABKIN
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THE Violence Against Women Act (VAWA) sailed through Congress with overwhelming majorities in 1994. Who could oppose a federal statute supposed to counter misogynist violence?

Last week, however, the Supreme Court ruled that Congress has no authority to pass the key provision in the law, which allowed women to sue attackers in federal court as a remedy for "violence motivated by gender." Chief Justice Rehnquist, speaking for the majority, treated this conclusion as an obvious, straightforward application of precedent -- which, in fact, it is. And even the dissenting opinions, for all their huffing and hectoring, declined to express much special regard for a statute that was, only yesterday, a feminist icon. Instead, the dissenters tried to scare people with alarms about the Court's returning the country to the economic and social policies of the 1920s.

This triumph for federalism could not have been safely predicted when Brzonkala v. Morrison began winding its way through the federal courts in 1995. Christy Brzonkala had filed a VAWA suit against two football players, fellow students at Virginia Polytechnic Institute and State University, whom she accused of rape. School authorities eventually found that the accused students were guilty of "misconduct" but not of sexual assault. A Virginia grand jury reviewed the case and refused to hand down any indictments. So Brzonkala turned to a local attorney specializing in feminist causes who proceeded to frame a VAWA suit, arguing that school and state authorities had covered up the crime to protect Virginia Tech's football team.

At that point, Antonio Morrison, one of the defendants, found his way to the Center for Individual Rights, a Washington-based public interest law firm. CIR had already won some prominence in free speech cases, defending professors against feminist excesses on college campuses. As one of the few outsiders on CIR's board of directors at that time, I can recall wondering if CIR really wanted to get involved in a rape case.

True, there were good reasons why local authorities had dismissed the rape claim. All the circumstances suggested that the late night encounter in Morrison's dorm room had been consensual, as he claimed. But Morrison's behavior could not be described as gentlemanly. And, in any case, federal rules of procedure require that, to raise a constitutional issue before trial, the defendant must stipulate to the facts alleged by the plaintiff. So the CIR lawsuit -- raising the objection that Congress had overstepped the limits on its power imposed by the Constitution's Commerce Clause -- went forward as a "rape" case.

By the time the case reached the Supreme Court, two lower courts had already applied precedents to find the Violence Against Women Act unconstitutional. And, most notably, the Supreme Court had struck down the Gun-Free School Zones Act (in the 1995 case U.S. v. Lopez), holding that this federal prohibition against carrying a gun within a thousand yards of a school was not in any way connected to commerce (let alone interstate commerce) and therefore could not be considered an exercise of Congress's power to "regulate commerce among the states."

Still, the Supreme Court's ruling in Morrison last week was remarkably unflinching. In Lopez, the Court dusted off the commerce clause for the first time in decades, complaining that Congress had made no serious effort to demonstrate that guns in the vicinity of schools have any impact on interstate commerce. In contrast, Congress held extensive hearings for the Violence Against Women Act and the Justice Department pointed to piles of studies indicating that violence against women hurts the national economy because injured or fearful women are less productive in the workplace. Chief Justice Rehnquist brushed these claims aside. Such reasoning, he noted, would allow anything at all -- including every kind of crime -- to fall within the ambit of congressional regulatory authority.

Rehnquist was equally brusque with the claim that Congress had the power to enact VAWA to enforce the Fourteenth Amendment's guarantee of "equal protection of the laws." Rehnquist insisted that this guarantee protects only against discrimination by the states, as past rulings have held, and that there was no showing that private violence reflected deliberate acquiescence by state governments. Justice O'Connor simply signed on to the opinion, declining to offer the sort of hand-wringing concurrence she often writes to soften the impact of a hard-edged majority opinion.