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.
The truth is that VAWA was always a remedy in search of a problem. Rape is a very serious charge and rightly hard to prove. But it is hardly credible to argue that state courts shrug off the claims of raped and battered women — and especially hard to believe this in the 1990s. Decades ago, when the South was still in the grip of suffocating racism, there was some reason to believe that federal authorities — with the political backing of northern representatives in Washington — could make some difference. But violence against women is not exactly an issue that divides any one region from a more enlightened national majority.
In fact, VAWA does not actually target all violence or even all violence that happens to affect women, but only “violence motivated by gender [bias].” The only point is to provide federal endorsement for the feminist claim that sexism is as insidious as the racial hatred that led to lynching.
The Supreme Court rejected this whole enterprise with businesslike dispatch. Perhaps, after two years of feminist apologetics for President Clinton’s sordid sexual conduct, feminist protest no longer has quite the political clout it once did. Even the Court’s critics preferred to argue about wider threats to “civil rights,” as they did in the editorial columns of the New York Times last week.
The charge is farfetched. The bulk of civil rights legislation deals with discrimination in labor markets, housing markets, retail services — all plainly concerned with “commerce.” Moreover, the Court has held that the Thirteenth Amendment, in prohibiting slavery, gives Congress wide powers to regulate discrimination on the basis of race. But the resort to scare talk about Morrison’s threat to “civil rights” indicates that feminist measures can no longer be defended by feminist rhetoric standing alone.
Indirectly, the dissents in Morrison seem to acknowledge this, too. Justice Breyer’s dissent goes on at such speculative length about threats to other civil rights measures that only one other justice (Stevens) was willing to sign on to that part of the dissent. Justice Souter, whose dissent was endorsed by the other three justices in the Court’s current liberal bloc, resorted to a bigger blunderbuss, protesting — at considerable length — that the Court was following in the footsteps of the justices who used the Commerce Clause to strike down New Deal legislation in the 1930s.
But it’s an immense leap from challenging VAWA to challenging the National Labor Relations Act. For the Court’s liberals to raise that specter is a sign of desperation. Or maybe they are just toying with the tactic that worked so well for President Clinton’s defenders in 1998, when they insisted the Lewinsky scandal was not about perjury but about Republican efforts to overturn Roe v. Wade. Morrison shows the Court is not rattled by such tactics. For the Court’s current majority, the Constitution really does mean something.
Jeremy Rabkin teaches constitutional law in the department of government at Cornell University.
