Document 18: Amicus Brief, U.S. vs. Morrison. On Writ of Criteria to the United States Court of Appeals for the Fourth Circuit. Brief of Law Professors as Amici Curiae in Support of Petitioners.


        Amicus Brief, U.S. vs. Morrison. On Writ of Criteria to the United States Court of Appeals for the Fourth Circuit. Brief of Law Professors as Amici Curiae in Support of Petitioners.



       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, 514 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 exerted to protect interstate commerce ‘no matter what the source of the dangers which threaten in.’” 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 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 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.” Id.

       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, 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 120,00 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 options in life sharply reduced.”

See also Senate Hearing 1993 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.

       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 billions annually “due to absenteeism” and loss of productivity related to violence against women. Physicians testified, for example, that at least 37% of female hospital 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 sun, 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 as reviewed the harmful effects of gendered violence in a variety of settings.

       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.

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       [W]hen 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 “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.

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       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 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.”

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       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 statues, 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 statues 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 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.


       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 assult. 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 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 victims not openly 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 20th 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-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 assult 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 that martial 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 denied and regulated rape and domestic violence in overtly sex-based 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 typical male assault victim, our reactions might be far different. Typically, we do not ask whether the victim of a barroom brawl 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 women it does not pose for others in our society.”

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

       Recent law reform efforts demonstrates 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 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 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 Assaults 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 assult repeatedly engage in decision-making riddled with invidious stereotypical judgments 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 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 protection under 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, 648 (1973) (referring to Nation’s “long and unfortunate history of sex discrimination. Traditionally, such 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.

*       *       *

       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 similar congressional effort at substantive reinterpretation. As a consequence, this Court should give Congress “wide latitude” in determining the most appropriate methods of remedying systematic and continuing violations of the Fourteenth Amendment.

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

       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 assit 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 governments in protecting citizens from violent assault.

       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 assult. 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.

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       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 difficult to gain cooperation for necessary reforms in the 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 equal footing.

       The VAWA remedy is thus a proportionate and congruent response to state violations of the Fourteenth Amendment, narrowly crafted to protect federalism interests, and well within Congress’ enforcement powers as defined by this Court’s recent cases.



       For these reasons, the judgment below holding VAWA’s civil remedy unconstitutional should be reversed.

Respectfully submitted           

Of Counsel

Bruce Ackerman
Jack M. Balkin
Vicki C. Jackson
Frank I. Michelman
Judith Resnik
                        Amy Schulman*
Piper Marbury
   Rudnick & Wolfe LLP
1251 Avenue of the Americas
New York, NY 10020-1104

       *Counsel of Record


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