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Nos. 99-5 and 99-29: United States and Brzonkala v. Morrison

Nos. 99-5 and 99-29

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.

CHRISTY BRZONKALA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES




SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
MARK B. STERN
ALISA B. KLEIN
ANNE MURPHY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



QUESTIONS PRESENTED

1. Whether 42 U.S.C. 13981, the provision of the Violence Against WomenAct that creates a private right of action for victims of gender-motivatedviolence, is a valid exercise of Congress's power under the Commerce Clauseof the Constitution.

2. Whether 42 U.S.C. 13981 is a valid exercise of Congress's power underthe Enforcement Clause of the Fourteenth Amendment to the Constitution.



PARTIES TO THE PROCEEDING

Petitioner is the United States of America, which intervened in the districtcourt to defend the constitutionality of 42 U.S.C. 13981. Christy Brzonkalawas the plaintiff in the district court and an appellant in the court ofappeals; she is also a petitioner in this Court.
Respondents are Antonio J. Morrison and James L. Crawford. The VirginiaPolytechnic Institute and State University, Cornell D. Brown, and WilliamE. Landsidle, in his capacity as Comptroller of the Commonwealth of Virginia,were defendants/appellees below.



In the Supreme Court of the United States

No. 99-5
UNITED STATES OF AMERICA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.

No. 99-29
CHRISTY BRZONKALA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES


OPINIONS BELOW

The opinion of the court of appeals sitting en banc (Pet. App. 1a-281a)is reported at 169 F.3d 820. The earlier opinion of a panel of that court(Pet. App. 282a-349a) is reported at 132 F.3d 949. The opinion of the districtcourt (Pet. App. 350a-403a) is reported at 935 F. Supp. 779.

JURISDICTION

The judgment of the court of appeals was entered on March 5, 1999. On May25, 1999, the Chief Justice extended the time within which to file a petitionfor a writ of certiorari to and including June 30, 1999. The petition wasfiled on June 25, 1999, and granted on September 28, 1999. The jurisdictionof this Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. The Commerce Clause of the United States Constitution, Article I, Section8, Clause 3, provides: "The Congress shall have Power * * * To regulateCommerce * * * among the several States."

2. The Equal Protection Clause of Section 1 of the Fourteenth Amendmentprovides that no State shall "deny to any person within its jurisdictionthe equal protection of the laws." Section 5 of the Fourteenth Amendmentprovides that "[t]he Congress shall have power to enforce, by appropriatelegislation, the provisions of this article."

3. The civil rights provision of the Violence Against Women Act, 42 U.S.C.13981, is reproduced in an appendix to this brief (App., infra, 1a-3a).


STATEMENT

This case presents a constitutional challenge to 42 U.S.C. 13981, the provisionof the Violence Against Women Act of 1994 that gives victims of gender-motivatedviolence a private right of action against their assailants. Section 13981enables victims to obtain compensation for the lost earnings, medical expenses,and other pecuniary and non-pecuniary losses associated with gender-motivatedviolence and to obtain other appropriate relief.

Between 1990 and 1994, Congress conducted extensive hearings that revealedthat gender-motivated violence is an overwhelming national problem, whichsubstantially affects interstate commerce by impeding the travel, employment,and other economic activities of its victims and potential victims. Congressalso found that pervasive bias in the state criminal and civil justice systemshas exacerbated the problem and, indeed, has denied victims of gender-motivatedviolence the equal protection of the laws. Congress therefore concludedthat the creation of a private right of action for victims of gender-motivatedviolence was an appropriate exercise of its authority under the CommerceClause and the Enforcement Clause of the Fourteenth Amendment. A dividedCourt of Appeals for the Fourth Circuit held otherwise.

1. Congress enacted the Violence Against Women Act to address "theescalating problem of violence against women." S. Rep. No. 138, 103dCong., 1st Sess. 37 (1993) (1993 S. Rep.). Congress chose to address thatproblem through "several different complementary strategies,"including new federal crimes, a new federal civil remedy, and new federalgrant programs. S. Rep. No. 197, 102d Cong., 1st Sess. 34 (1991) (1991 S.Rep.). The crimes created by the statute punish certain types of interstatedomestic violence. See 18 U.S.C. 2261, 2262 (1994 & Supp. III 1997).1The grant programs authorized $1.6 billion in federal spending over sixyears to support state, local, and tribal efforts to reduce violence againstwomen, including rape prevention and education programs, law-enforcementefforts, victim services programs, battered women's shelters, and improvedsecurity in public transit. See, e.g., 42 U.S.C. 300w-10, 3796gg, 3796hh,10409(a), 13931.

Congress considered one of the "[m]ost important[]" componentsof the Violence Against Women Act to be its civil rights provision, Section13981, which gives victims of gender-motivated violence a federal causeof action against its perpetrators. 1993 S. Rep. 38. As Congress explained,Section 13981 "makes a national commitment to condemn crimes motivatedby gender in just the same way that we have made a national commitment tocondemn crimes motivated by race or religion." S. Rep. No. 545, 101stCong., 2d Sess. 41 (1990) (1990 S. Rep.).

Section 13981(b) declares that "[a]ll persons within the United Statesshall have the right to be free from crimes of violence motivated by gender."Section 13981(c), in turn, provides:

A person * * * who commits a crime of violence motivated by gender and thusdeprives another of the right declared in subsection (b) of this section[to be free from gender-motivated violence] shall be liable to the partyinjured, in an action for the recovery of compensatory and punitive damages,injunctive and declaratory relief, and such other relief as a court maydeem appropriate.

Section 13981(d) defines a "crime of violence motivated by gender"that could give rise to such a cause of action. A "crime of violence"is defined as "an act or series of acts that would constitute a felonyagainst the person" (or a felony against property if the conduct poses"a serious risk of physical injury" to a person) under federalor state law and that would satisfy the definition of a "crime of violence"in 18 U.S.C. 16, "whether or not those acts have actually resultedin criminal charges, prosecution, or conviction. 42 U.S.C. 13981(d)(2).2Such a crime is "motivated by gender" if it was committed "becauseof gender or on the basis of gender, and due, at least in part, to an animusbased on the victim's gender." 42 U.S.C. 13981(d)(1).

Section 13981(a) expressly invokes two sources of Congress's constitutionalauthority to create a federal cause of action for victims of gender-motivatedviolence: the Commerce Clause and Section 5 of the Fourteenth Amendment.

2. In the Conference Report adopted in connection with the Violence AgainstWomen Act, Congress explained why its commerce power extends to the regulationof gender-motivated violence:

[C]rimes of violence motivated by gender have a substantial adverse effecton interstate commerce, by deterring potential victims from traveling interstate,from engaging in employment in interstate business, and from transactingwith business, and in places involved, in interstate commerce; crimes ofviolence motivated by gender have a substantial adverse effect on interstatecommerce by diminishing national productivity increasing medical and othercosts, and decreasing the supply of and the demand for interstate products.

H.R. Conf. Rep. No. 711, 103d Cong., 2d Sess. 385 (1994) (Conf. Rep.).

Congress reached that conclusion after four years of extensive investigationand consideration of the problem of gender-motivated violence. In a seriesof committee hearings between 1990 and 1994, Congress heard testimony froma variety of experts: state attorneys general, federal and state law-enforcementofficials, business and labor representatives, physicians, mental-healthprofessionals, legal scholars, and victims of gender-motivated violence.The evidence presented at those hearings demonstrated to Congress that gender-motivatedviolence is pervasive, has a substantial effect on interstate commerce,and often goes unremedied because of widespread bias in state justice systems.

a. Congress's extensive fact-finding revealed that violence against womenis a problem of the first magnitude and of national scope. For example, the evidence showed:

1 "Violent attacks by men now tops the list of dangers to an Americanwoman's health. Every 15 seconds, a woman is battered and, every 6 minutes,a woman is raped in the United States." 1991 S. Rep. 36.

l "Every week, during 1991, more than 2,000 women were raped and morethan 90 women were murdered-9 out of 10 by men." 1993 S. Rep. 38.

l "An estimated 4 million American women are battered each year bytheir husbands or partners. Approximately 95% of all domestic violence victimsare women." H.R. Rep. No. 395, 103d Cong., 1st Sess. 26 (1993) (1993H. Rep.).

l "Three out of four American women will be victims of violent crimessometime during their life." Id. at 25.3

b. The evidence amassed by Congress also demonstrated that violence againstwomen has a substantial impact on interstate commerce. As the 1993 SenateReport explained, "[g]ender-based violence bars its most likely targets-women-from full [participation] in the national economy," by impedingtheir ability to work, to travel, and to engage in other economic activity.1993 S. Rep. 54.

Congress was informed that "violent crime against women costs thiscountry at least 3 billion * * * dollars a year." 1990 S. Rep. 33 (citing"partial estimates" of those costs). A significant portion ofthose costs was attributed to the impact of gender-motivated violence onvictims' participation and performance in the workforce. Among victims ofrape, for example, "almost 50 percent * * * lose their jobs or areforced to quit in the aftermath of the crime." 1993 S. Rep. 54. Eventhose who remain employed after the rape may experience a prolonged periodof decreased productivity. 1990 S. Rep. 33. Domestic violence likewise "takesits toll in employee absenteeism and sick time for women who either cannotleave their homes or are afraid to show the physical effects of the violence."Id. at 37; see Women and Violence: Hearings Before the Senate Comm. on theJudiciary, 101st Cong., 2d Sess., Pt. I, at 58 (1990) (1990 S. Jud. Hearings)(noting that the costs of employee absenteeism due to domestic violencemay reach $3 billion to $5 billion a year).4

Congress was also informed that "[e]ven the fear of gender-based violenceaffects the economy because it deters women from taking jobs in certainareas or at certain hours that pose a significant risk of such violence."1993 S. Rep. 54. For example, "women often refuse higher-paying nightjobs in the service/retail industries because of the fear of attack."Id. at 54 n.70. Unfortunately, "[t]hose fears are justified."Ibid. (noting that for women, but not for men, the leading cause of deathon the job is homicide). For similar reasons, many women refrain from usingpublic transportation, shopping, or going to the movies, particularly afterdark. 1991 S. Rep. 38; 1990 S. Jud. Hearings 109.

c. Congress found that the problem of gender-motivated violence was exacerbatedby pervasive bias in state justice systems, including bias among policeofficers, prosecutors, judges, juries, and court employees. The ConferenceReport concluded that "bias and discrimination in the [state] criminaljustice system often deprive[] victims of crimes of violence motivated bygender of equal protection of the laws and the redress to which they areentitled." Conf. Rep. 385.

In reaching that conclusion, Congress relied, in part, on the reports compiledby some 20 state task forces on gender bias. The 1991 Senate Report notedthat "[s]tudy after study commissioned by the highest courts of theStates- from Florida to New York, California to New Jersey, Nevada to Minnesota-hasconcluded that crimes disproportionately affecting women are often treatedless seriously than comparable crimes against men." 1991 S. Rep. 43;see also id. at 43 n.40; 1993 S. Rep. 45 n.29, 49 n.52 (citing 20 such studiesconducted between 1984 and 1991). The Senate Report found that "[c]ollectivelythese reports provide overwhelming evidence that gender bias permeates thecourt system and that women are most often its victims." 1991 S. Rep.43-44 (quoting Lynn H. Schafran, Overwhelming Evidence: Reports on GenderBias In the Courts, Trial, Feb. 1990, at 28); see also 1993 S. Rep. 49 ("[w]omenoften face barriers of law, of practice, and of prejudice not suffered byother victims of discrimination").

For example, the Illinois task force found that there was "a continuingsuspicion of the credibility of sexual assault victims on the part of police,prosecutors, judges, and juries." Illinois Task Force on Gender Biasin the Courts, Gender Bias in the Courts 16 (1990). Accordingly, "[a]lthoughrape is rarely committed before eyewitnesses and is often not reported immediately,prosecutors and investigators seek corroboration, including evidence ofa 'prompt complaint.'" Ibid. (noting that sexual assault victims, unlikevictims of other crimes, had been required by police and prosecutors totake polygraph tests). The Texas task force similarly found that "[w]omensexual-assault victims are accorded less credibility by the judicial systemthan victims of other types of assaults." Texas Gender Bias Task Force,Final Report 5 (1994). Women frequently confront the assumption that theyinvited or precipitated a sexual assault. See, e,g., 1991 S. Rep. 34 (describinghow a Vermont probation officer questioned whether a 9-year-old girl wasa "true victim" of sexual assault because he had heard that shewas a "tramp") (quoting Vermont Supreme Court & Vermont BarAss'n, Report of the Vermont Task Force on Gender Bias in the Legal System140 (1991)). Such assumptions are particularly prevalent in cases of acquaintancerape, which police regularly decline to investigate and prosecutors regularlydecline to prosecute. Id. at 47-48. As a result, "a rape survivor mayhave as little as a 5-percent chance of having her rapist convicted."1991 S. Rep. 44.

The state task force reports similarly demonstrated to Congress that "[g]enderbias contributes to the judicial system's failure to afford the protectionof the law to victims of domestic violence." 1993 S. Rep. 46. In California,for example, the state task force found that "police officers, districtand city attorneys, court personnel, mediators, and judges-the justice system-treatedthe victims of domestic violence as though their complaints were trivial,exaggerated or somehow their own fault." Ibid. (quoting AdministrativeOffice of the Judicial Council of the Courts of California, Achieving EqualJustice for Women and Men in the Courts 5 (1993)); see also 1991 S. Rep.34 (quoting a California judge as stating that a domestic violence victimin his court "probably should have been hit"). In Georgia, a statejudge was reported to have "mocked," "humiliated," and"ridiculed" a domestic violence victim who was later killed byher estranged husband. 1991 S. Rep. 34 (quoting Supreme Court of Georgia,Report on Gender and Justice in the Judicial System 235 (1991)). And inMaryland, a state judge refused to believe a woman's complaint that herhusband had threatened to kill her with his gun "because I don't believethat anything like this could happen to me." Ibid. (quoting MarylandSpec. Jt. Comm., Gender Bias in the Courts 2-3 (1989)). The record beforeCongress demonstrated that such deeply ingrained attitudes often cause police,prosecutors, judges, and other court personnel to treat domestic violenceless severely than other sorts of violence. See, e.g., 1993 S. Rep. 41 ("Incases where a comparable assault by a stranger on the street would leadto a lengthy jail [term], a similar assault by a spouse will result neitherin arrest nor in prosecution.").

Congress was also informed that state civil remedies for victims of sexualassault and domestic violence often have significant flaws. The 1993 SenateReport noted, for example, that "in many States rape survivors * ** may be forced to expose their private lives and intimate conduct to wina damage award; and * * * in some cases, they may be barred from suit altogetherby tort immunity doctrines or marital exemptions." 1993 S. Rep. 55.Accordingly, while sexual assault and domestic violence victims may, "[i]ntheory," have certain civil remedies at their disposal, "[i]npractice, few are able to use those remedies." 1991 S. Rep. 44. Indeed,the 1991 Senate Report noted that "[l]ess than 1 percent of all victimshave collected damages" against their assailants-a statistic that "belie[s]claims that State laws provide 'adequate' remedies for the victims of thesecrimes." Ibid.

Congress concluded, based on its evaluation of the extensive legislativerecord, that gender-motivated violence poses a national problem demandinga national response. The state attorneys general concurred: "Our experienceas Attorneys General strengthens our belief that the problem of violenceagainst women is a national one, requiring federal attention, federal leadership,and federal funds." Crimes of Violence Motivated by Gender: HearingBefore the Subcomm. on Civil and Constitutional Rights of the House Comm.on the Judiciary, 103d Cong., 1st Sess. 35 (1993) (1993 H. Jud. Hearing).5

Congress determined that the private right of action provided by Section13981, together with the other provisions of the Violence Against WomenAct, was an appropriate response to that national problem. As the 1993 SenateReport explained, Section 13981's declaration that "[a]ll persons withinthe United States shall have the right to be free from crimes of violencemotivated by gender" would make clear to all Americans-including thosein the justice system-that crimes motivated by gender bias are "tobe considered as serious as crimes motivated by religious, racial, or politicalbias." 1993 S. Rep. 38. Moreover, the private right of action in Section13981 was particularly important because it would "allow survivorsan opportunity for legal vindication that the survivor, not the State, controls."1990 S. Rep. 42.

3. In September 1994, at the time of the events at issue in this case, petitionerChristy Brzonkala was an incoming freshman at Virginia Polytechnic Institute(Virginia Tech). Respondents Antonio Morrison and James Crawford were studentsat Virginia Tech and members of its football team. Pet. App. 7a-8a, 211a;J.A. 14-15.

Brzonkala alleges that 30 minutes after she met Morrison and Crawford inthe dormitory where she resided, the two men pinned her down on a bed andtook turns forcibly raping her. Afterwards, Morrison allegedly told Brzonkala,"You better not have any f***ing diseases." Subsequently, Morrisonallegedly announced publicly in the dormitory's dining hall that "Ilike to get girls drunk and f*** the s*** out of them." Pet. App. 8a,211a; J.A. 15-18.

Brzonkala alleges that she became depressed and withdrawn after the assault.She ceased attending classes, attempted suicide, and required psychiatrictreatment. She ultimately withdrew from school. Pet. App. 212a-213a; J.A.17-18.

4. In December 1995, Brzonkala brought this action against Morrison andCrawford, invoking Section 13981. Morrison and Crawford moved to dismiss,arguing that Congress lacked constitutional authority to enact Section 13981and that Brzonkala failed to state a claim under that statute. The UnitedStates intervened to defend the constitutionality of Section 13981. Pet.App. 8a-9a.

The district court granted the motion to dismiss. The court held that Brzonkalahad stated a claim under Section 13981 at least against Morrison, and thatthe constitutional question was therefore presented for decision. Pet. App.361a-362a. The court then concluded that Congress lacked the constitutionalauthority to enact Section 13981.

The court held that Section 13981 was not a proper exercise of Congress'spower under the Commerce Clause. Pet. App. 369a-382a. The court perceivedthe statute as not meaningfully distinguishable from the statute struckdown in United States v. Lopez, 514 U.S. 549 (1995), notwithstanding thathere, unlike in Lopez, Congress made specific findings regarding the connectionbetween the regulated conduct and interstate commerce. Pet. App. 371a.

The court also held that Section 13981 was not a proper exercise of Congress'spower to enforce the Fourteenth Amendment. The court recognized that "[s]omepossibility exists that at least part of the states' differential treatmentof gender-based violent crimes against women is due to gender discrimination,and so correcting the differential treatment arising out of gender discriminationis a legitimate Fourteenth Amendment concern." Pet. App. 399a. Butthe court concluded that "no reasonable possibility exists that [Section13981] will help remedy this legitimate Fourteenth Amendment concern,"because the statute "is tailored to remedy conduct other than the conductgiving rise to the equal protection concern." Id. at 399a-400a.

5. A divided panel of the Fourth Circuit reversed. Pet. App. 282a-349a.The court held that Section 13981 was a valid exercise of Congress's powerunder the Commerce Clause, id. at 310a-340a, and thus did not reach theFourteenth Amendment question. Judge Luttig dissented. Id. at 340a-349a.

6. On rehearing en banc, a divided court of appeals affirmed the judgmentof the district court, holding that Congress did not have the power to enactSection 13981 under either the Commerce Clause or Section 5 of the FourteenthAmendment. Pet. App. 1a-281a.

a. Addressing the Commerce Clause question, the court of appeals acknowledgedthat "[t]he legislative record in this case, considered as a whole,shows that violence against women is a sobering problem and also that suchviolence ultimately does take a toll on the national economy." Pet.App. 68a. The court likewise recognized that "Congress' specific findingsregarding the relationship between gender-motivated violence and interstatecommerce * * * depict the manner in which such violence affects interstatecommerce." Ibid.

The court nonetheless concluded that Section 13981 could not be sustainedunder Congress's power to regulate activities substantially affecting interstatecommerce. The court understood Lopez to hold that Congress cannot regulatean activity that substantially affects interstate commerce unless (1) theregulated activity is itself an economic one or (2) the statute includesa jurisdictional element requiring a case-by-case inquiry into the nexusto interstate commerce. Pet. App. 15a-31a. Because Section 13981 "neitherregulates an economic activity nor includes a jurisdictional element,"the court concluded that "it cannot be upheld on the authority of Lopezor any other Supreme Court holding demarcating the outer limits of Congress'power under the substantially affects test." Id. at 31a.

Alternatively, the court held that Section 13981 could not be sustainedunder the commerce power "[e]ven if these two categories of permissiblecongressional regulations demarcate not the absolute, but only the presumptiveouter limits of congressional power under the substantially affects test."Pet. App. 31a. Noting the Lopez Court's admonition that the commerce powercannot be construed in a manner that would "effectually obliteratethe distinction between what is national and what is local and create acompletely centralized government," id. at 33a (quoting Lopez, 514U.S. at 557), the court concluded that Section 13981 presents the same federalismconcerns as did the statute in Lopez. Id. at 31a-51a. In the court's view,Section 13981 could not be upheld without endorsing an unlimited view ofthe commerce power that would permit Congress to "assume control overthe entire field of violent crime, or, for that matter, all crime withinall of the States." Id. at 89a.

b. The court of appeals also held that Section 13981 could not be sustainedas legislation enforcing the Fourteenth Amendment, i.e., legislation remedyingbias in state civil and criminal justice systems against victims of gender-motivatedviolence. The court reasoned that Section 13981 "is invalid, regardlessof whether its end is to remedy unconstitutional state action, for the simplereason that it regulates purely private conduct and is not limited to individualcases in which the state has violated the plaintiff's Fourteenth Amendmentrights." Pet. App. 125a-126a. The court stated that its conclusionwas compelled by United States v. Harris, 106 U.S. 629 (1883), and the CivilRights Cases, 109 U.S. 3 (1883). Pet. App. 104a-126a.

The court also held that Section 13981 did not satisfy the requirement articulatedin City of Boerne v. Flores, 521 U.S. 507, 520 (1997), of "congruenceand proportionality between the [constitutional] injury to be preventedor remedied and the means adopted to that end." First, the court expresseddoubt that the legislative record revealed constitutional violations tobe remedied. Pet. App. 153a-160a. Although the court acknowledged that therecord "does establish that the States enforce and apply certain lawsin a manner that may ultimately prevent the victims of gender-motivatedviolence from obtaining vindication through the criminal or civil systems,"the court questioned whether such conduct amounted to "purposeful discriminationagainst women in the enforcement of facially neutral laws that could giverise to an equal protection violation." Id. at 153a. Second, the courtconcluded that Section 13981 was so out of proportion to the constitutionalviolations that it sought to remedy that it could not be regarded as aneffort to enforce the Fourteenth Amendment. Id. at 160a-163a.6

c. Judge Motz, writing for the four dissenting judges, concluded that Section13981 was a valid exercise of Cogress's power under the Commerce Clause.Pet. App. 224a-281a. The dissent concluded that Congress had the requisiterational basis, as reflected in the "detailed and extensive" legislativefindings and testimony, id. at 229a, to determine that "gender-basedviolence substantially affects interstate commerce," id. at 237a. Thedissent found no support in Lopez for limiting Congress's commerce powerto statutes that regulate economic activities or contain a jurisdictionalelement. Id. at 240a-247a.

The dissent also rejected the majority's conclusion that federalism concernsundermined Section 13981, noting that Congress had "explicitly foundthat the states refused or were unable to deal effectively with the problemscreated by gender-based violence." Pet. App. 232a. Thus, the dissentexplained, Section 13981 "provides a necessary national remedy fora severe problem that the states have, by their own admission, been unableto address effectively." Id. at 278a. The dissent therefore concludedthat Section 13981, in contrast to the statute in Lopez, did not "add[]a redundant layer of federal regulation in an area where most states hadalready acted," but instead "responded to the states' self-describedneeds." Id. at 276a.

SUMMARY OF ARGUMENT

After four years of investigation, Congress determined that violence againstwomen is pervasive in modern American society to a degree that had previouslybeen unrecognized. Congress found that the problem has been exacerbatedby the States' failure to treat violent crimes that primarily victimizewomen, such as rape and domestic abuse, as seriously as other violent crimes.In addition, Congress found that the problem not only devastates the livesof its victims, but also harms the national economy and interstate commercein many ways. Based on those findings, Congress exercised its powers underthe Commerce Clause and the Enforcement Clause of the Fourteenth Amendmentto enact Section 13981, a private right of action that enables victims ofgender-motivated violence to seek redress against their assailants. Congressacted well within its constitutional authority in doing so.

1. Section 13981 is an appropriate exercise of Congress's power under theCommerce Clause. Congress had far more than the rational basis that thisCourt has required to conclude that gender-motivated violence substantiallyaffects interstate commerce. Congress found that gender-motivated violenceburdens the national economy and interstate commerce in several distinctways: by deterring women from seeking jobs, including jobs in interstatebusinesses, that would require them to work at certain hours or in certainplaces; by inhibiting women from traveling, interstate as well as intrastate,and from engaging in other economic activity; by impeding victims' abilityto work at all, or to work productively, thereby forcing many into dependence,poverty, and even homelessness; and by imposing increased medical and othercosts on victims, their employers and insurers, and state and local governments.All of those burdens were documented in the extensive legislative record.Congress reviewed that record with the understanding that the Commerce Clausehad long been regarded as an appropriate source of constitutional authorityto regulate activity that creates a barrier to the participation of particulargroups in the Nation's commerce. See, e.g., Katzenbach v. McClung, 379 U.S.294 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

Contrary to the court of appeals' reasoning, Congress's commerce power isnot confined to the regulation of those intrastate activities that are "commercial"or "economic" in nature. It is not the character of the activity,but the substantiality of its impact on interstate commerce, that determineswhether the activity may be regulated under the Commerce Clause. As JusticesKennedy and O'Connor suggested in their concurring opinion in United Statesv. Lopez, 514 U.S. 549, 580 (1995), when Congress exercises its commercepower where "neither the [regulated] actors nor their conduct has acommercial character," the regulation might be sustained if it doesnot "intrude upon an area of traditional state concern." Nor isSection 13981 unconnected to economic activity. The gender-motivated violenceremedied by Section 13981 occurs at, or en route to, workplaces, retailestablishments, and interstate transportation terminals as well as in othersettings; in addition, Section 13981 is directed not only at gender-motivatedviolence itself, but also at the inadequate state mechanisms for compensatingvictims for its economic consequences.

Section 13981 does not, as the court of appeals suggested, present the federalismconcerns that were presented by the statute at issue in Lopez. First, Section13981 is an exclusively civil remedy that enables victims of gender-motivatedviolence to seek redress against their assailants-a remedy that supplements,but does not supplant, any remedy that the victims may have under statelaw. It does not intrude into the operations of state government, operateagainst the States, or conscript the States or state officials in its enforcement.Second, Section 13981 was intended as, and patterned after, federal civilrights legislation. The vindication of civil rights has long been recognizedto be a paradigmatic national responsibility, not one that has been primarilyleft to the States. Third, Congress enacted Section 13981 to address a problemthat, as the States acknowledged, their own justice systems had failed adequatelyto address. A statute premised on such systemic state failures does notpresage an open-ended expansion of federal power into domains properly reservedto the States. Finally, the Violence Against Women Act, of which Section13981 is a part, is a prototypical example of cooperative federalism. Itcontains a number of provisions designed to encourage and enhance the States'own efforts to address gender-motivated violence. Section 13981, especiallywhen viewed in the context of the entire Act, poses no threat to federalismprinciples.

2. Section 13981 is also an appropriate exercise of Congress's power underSection 5 of the Fourteenth Amendment to remedy and deter violations ofthe Equal Protection Clause. Congress, employing its unique institutionalability to investigate and assess whether legislation is needed to enforceconstitutional guarantees, found that pervasive bias in the state justicesystems denies victims of gender-motivated violence the equal protectionof the laws. Congress based that determination on an extensive record documentingthat inaccurate stereotypes about gender-motivated violence and its victims-reflectedin state laws, state evidentiary rules, and, especially, the attitudes ofpolice, prosecutors, judges and other state actors-have caused violent crimesmotivated by gender animus to be treated less seriously than other violentcrimes. It is well-settled that state action based on inaccurate stereotypes,including stereotypes relating to gender, may violate the Equal ProtectionClause. Congress was entitled to invoke its authority under Section 5 toremedy such violations.

Section 13981 is a suitable remedy for the constitutional violations thatCongress identified. As Congress explained, Section 13981 gives victimsof gender-motivated violence "an opportunity for legal vindication,"in either federal or state court, "that the [victim], not the State,controls." 1990 S. Rep. 42. Section 13981 thus remedies and preventsthe discrimination that victims of gender-motivated crimes often face inthe state justice systems by giving them an alternative means of obtaininglegal redress. Congress's broad enforcement authority under Section 5 isnot limited, as the court of appeals believed, to the creation of remediesagainst the States themselves. A remedy that permits victims of gender-motivatedviolence to seek the vindication withheld by the States is a wholly permissiblemeans of effectuating the purposes of the Fourteenth Amendment.

Section 13981 is fully consistent with this Court's decisions addressingthe scope of Congress's power to enforce the Fourteenth Amendment. Section13981 is unlike the statutes in this Court's Reconstruction-era decisions,which were predicated on the assumption that private conduct may violatethe Equal Protection Clause. Those decisions do not bar Congress from reachingthe conduct of private persons, when Congress does so to remedy discriminationby the State or its agents. Nor does Section 13981 suffer from the defectsthat the Court perceived in City of Boerne v. Flores, 521 U.S. 507 (1997).Section 13981, unlike the statute in that case, provides a remedy that iscongruent and proportional to the constitutional violations that Congressidentified. Section 13981 does not redefine the substantive prohibitionsof the Fourteenth Amendment. To the contrary, Section 13981 provides anadditional remedy for state action that Congress reasonably found wouldviolate equal protection under the standards announced by this Court. And,in contrast to the situation in Flores, Section 13981 is an appropriatelylimited remedy that does not intrude into the operations of state government.

ARGUMENT

I. SECTION 13981 IS A VALID EXERCISE OF CONGRESS'S POWER UNDER THE COMMERCECLAUSE

Congress rationally determined that gender-motivated violence imposes asubstantial burden on interstate commerce, impeding its victims' effortsto work, travel, and engage in other economic activity. Section 13981 isspecifically designed to address the economic consequences of gender-motivatedviolence by providing victims a means of recovering their lost earnings,medical expenses, and other pecuniary and non-pecuniary losses. Section13981, as a private civil remedy, does not interfere with the activitiesof the States. Indeed, Section 13981 was adopted in response to Congress'sdetermination, concurred in by a substantial majority of state attorneysgeneral, that the problem of gender-motivated violence required a comprehensivenational solution. Section 13981 is thus a proper exercise of Congress'spower under the Commerce Clause.

A. Congress Rationally Found That Gender-Motivated Violence Imposes A SubstantialBurden On Interstate Commerce

1. This Court has repeatedly recognized that Congress's commerce power,while not unlimited, is nonetheless "broad and sweeping." Katzenbachv. McClung, 379 U.S. 294, 305 (1964); accord, e.g., Wickard v. Filburn,317 U.S. 111, 127-128 (1942); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196(1824); cf. United States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J.,concurring) ("the Commerce Clause grants Congress extensive power andample discretion to determine its appropriate exercise"). "Thefundamental principle is that the power to regulate commerce is the powerto enact all appropriate legislation for its protection and advancement;to adopt measures to promote its growth and insure its safety; to foster,protect, control and restrain." NLRB v. Jones & Laughlin SteelCorp., 301 U.S. 1, 36-37 (1937) (internal quotation marks and citationsomitted).

It is thus well-settled that Congress's power over interstate commerce "isnot confined to the regulation of commerce among the States." UnitedStates v. Darby, 312 U.S. 100, 118 (1942). Congress also may regulate "thoseactivities intrastate which so affect interstate commerce or the exerciseof the power of Congress over it as to make regulation of them appropriatemeans to the attainment of a legitimate end, the exercise of the grantedpower of Congress to regulate interstate commerce." Ibid.; accord,e.g., Perez v. United States, 402 U.S. 146, 154 (1971); Heart of AtlantaMotel v. United States, 379 U.S. 241, 258 (1964); Wickard, 317 U.S. at 125.7

The modern Court has consistently applied "the traditional rationalitystandard of review" to assess whether a statute is a permissible exerciseof Congress's commerce power, "defer[ring] to a congressional findingthat a regulated activity affects interstate commerce 'if there is any rationalbasis for such a finding.'" Preseault v. ICC, 494 U.S. 1, 17 (1990)(quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.264, 276 (1981)). The Court has thus explained that, "where we findthat the legislators, in light of the facts and testimony before them, havea rational basis for finding a chosen regulatory scheme necessary to theprotection of commerce, our investigation is at an end." McClung, 379U.S. at 303-304; see also Polish Alliance v. NLRB, 322 U.S. 643, 650 (1944)(Frankfurter, J.) (whether activity sufficiently affects interstate commercerequires "a practical judgment," the exercise of which "theConstitution entrusts primarily and very largely to the Congress, subjectto the latter's control by the electorate"). While the Court in Lopezidentified a zone of "truly local" activity that is not subjectto regulation under the Commerce Clause, the Court adhered to the principlethat Congress's judgments in this area are entitled to deference. See Lopez,514 U.S. at 557 (citing cases); see also id. at 568 (Kennedy, J., concurring)(counseling "great restraint before the Court determines that the [Commerce]Clause is insufficient to support an exercise of the national power").

2. Congress expressly invoked the Commerce Clause as a source of its constitutionalauthority to enact Section 13981, stating that the private right of actionwas designed, among other things, "to promote * * * activities affectinginterstate commerce." 42 U.S.C. 13981(a). The Conference Report onSection 13981 sets forth Congress's findings that "crimes of violencemotivated by gender have a substantial adverse effect on interstate commerce"in several specific respects. Conf. Rep. 385. Congress arrived at that conclusionafter four years of study, as reflected in the extensive hearings and committeereports, which documented the economic impact of gender-motivated violence.Congress reviewed that record with the understanding that the Commerce Clausehad long been regarded as an appropriate source of constitutional authorityto regulate forms of discrimination that impede the participation of particulargroups in the national economy. See, e.g., 1993 S. Rep. 54-55 & n.71(concluding that "[t]here is no doubt that the Congress has the powerto create [Section 13981] under the Constitution's Commerce Clause"based on "precisely the rationale on which the Supreme Court reliedin upholding the 1964 Civil Rights Act" in Heart of Atlanta Motel andMcClung).

The Conference Report, the committee reports, and the hearing records demonstratethat Congress had far more than a rational basis to find that gender-motivatedviolence imposes a substantial burden on interstate commerce by impedingthe participation of its victims, primarily women, in the national economy.We focus here on five aspects of that burden.

First, Congress found that gender-motivated violence "diminish[es]national productivity." Conf. Rep. 385. Victims of gender-motivatedviolence are often unable to work, or to work productively, as a resultof their physical injuries and emotional distress. See Violence AgainstWomen- Victims of the System: Hearing Before the Senate Comm. on the Judiciary,102d Cong., 1st Sess. 241 (1991) (1991 S. Jud. Hearing) (president of theNational Federation of Business and Professional Women notes that victimsof domestic violence "either forego employment opportunities availableor jeopardize their current employment by absenteeism and poor work performance").Congress was informed that the cost of employee absenteeism due to domesticviolence alone has been estimated at between $3 billion and $5 billion annually.1990 S. Jud. Hearings 58. A significant portion of those costs are borneby employers engaged in interstate commerce.8

The record before Congress also demonstrated that rape, like domestic violence,exacts a significant toll in the workplace. For example, "almost 50percent of rape victims lose their jobs or are forced to quit because ofthe crime's severity." 1991 S. Rep. 53. Even those who remain employedafter a rape or other crime of violence may experience a prolonged periodof decreased productivity. 1990 S. Rep. 33.

Second, Congress found that gender-motivated violence deters potential victims"from engaging in employment in interstate business." Conf. Rep.385. Congress was informed that women refrain from "taking jobs incertain areas or at certain hours that pose a significant risk of such violence."1993 S. Rep. 54. For example, "women often refuse higher-paying nightjobs in the service/retail industries because of the fear of attack."Id. at 54 n.70. Such fears are well-founded. Ibid. (noting that homicideis the leading cause of job-related death among women but not among men).9

Third, Congress found that gender-motivated violence "deter[s] potentialvictims from traveling interstate." Conf. Rep. 385. For example, womenare reluctant to use public transportation, particularly after dark, becauseof the fear of attack. 1991 S. Rep. 38 (noting that nearly 50% of the womenquestioned in one survey stated that they did not use public transportationalone after dark).10 The use of public transportation, even for relativelyshort distances, may entail travel across state lines.11

Fourth, Congress found that gender-motivated violence deters victims andpotential victims from "transacting with business, and in places involved,in interstate commerce," and thereby "decreas[es] the supply ofand the demand for interstate products." Conf. Rep. 385; see also 1993S. Rep. 54 ("[g]ender-based crimes and the fear of gender-based crimes* * * restrict[] consumer spending"). The record before Congress indicatedthat "as many as 50 percent of homeless women and children are fleeingdomestic violence." 1990 S. Rep. 37. A woman in such reduced circumstancesis unable to purchase the products, including those that have moved in interstatecommerce, that she would otherwise purchase for herself and her children.12

Women also modify their spending behavior in order to avoid gender-motivatedviolence. For example, of the women who participated in one survey thatwas before Congress, three-quarters reported that they never go out aloneat night to see a movie because they fear rape and other violent crimes.1991 S. Rep. 38.13 See also 1990 S. Jud. Hearings 109 (observing that womenin certain neighborhoods "can't walk down to the convenience store"at certain hours because of the threat of violence).

Finally, Congress found that gender-motivated violence affects interstatecommerce by "increasing medical and other costs." Conf. Rep. 385.The record before Congress contained estimates that "1 million wom[e]na year seek medical attention for injuries caused by violence at the handsof a male partner." 1993 S. Rep. 41; see also 1990 S. Rep. 37 (notingthat "[a]s many as 20 percent of hospital emergency room cases arerelated to wife battering"). The costs of that medical care have beenplaced at more than $100 million a year-costs that are borne by the womenthemselves, by employers and insurers, and by state and local governments.1990 S. Jud. Hearings 58.14

3. The burden that Congress found to be imposed on interstate commerce bygender-motivated violence is analogous, in three significant respects, tothe burden that Congress found to be imposed on interstate commerce by racialdiscrimination in places of public accommodation. This Court held in McClungand Heart of Atlanta Motel that such a burden is sufficient to justify congressionalaction under the Commerce Clause.15

The Court reasoned that Congress could rationally have found that racialdiscrimination by restaurants, as in McClung, and by hotels and motels,as in Heart of Atlanta Motel, "obstructs interstate commerce"by "discouraging travel on the part of a substantial portion of theNegro community." McClung, 379 U.S. at 300; Heart of Atlanta Motel,379 U.S. at 253. Similarly, here, Congress rationally found that gender-motivatedviolence deters many women from traveling interstate. Conf. Rep. 385.

In addition, the Court reasoned in McClung that Congress could rationallyhave found that racial discrimination caused blacks to spend less moneyat restaurants, which, in turn, caused the restaurants to sell less foodand, consequently, to buy fewer goods from their out-of-state suppliers.379 U.S. at 299-300. Similarly, here, Congress rationally found that gender-motivatedviolence results in reduced spending by women on a variety of consumer productsthat have moved, or the components of which have moved, in interstate commerce.Conf. Rep. 385.

The Court finally reasoned in McClung that Congress could rationally havefound that racial discrimination in places of public accommodation burdenedinterstate commerce in yet another way: It "deterred professional,as well as skilled, people from moving into areas where such practices occurredand thereby caused industry to be reluctant to establish there," 379U.S. at 300, presumably out of concern about its ability to attract employeesand customers. Similarly, here, Congress rationally found that gender-motivatedviolence deters women from "taking jobs in certain areas or at certainhours" as well as from patronizing businesses in certain areas or atcertain hours. 1993 S. Rep. 54. And that could, as in McClung, affect businesses'decisions concerning such matters as interstate relocation and expansion.

In sum, for many of same reasons this Court articulated in McClung and Heartof Atlanta Motel, Congress "had a rational basis for finding that [gender-motivatedviolence] had a direct and adverse effect on the free flow of interstatecommerce." McClung, 379 U.S. at 304. Section 13981, as a statute directedat "the resolution of what the Congress found to be a national commercialproblem of the first magnitude," id. at 305, is thus an appropriateexercise of the commerce power.

4. This Court's conclusion in Lopez that the Gun-Free School Zones Act of1990 (GFSZA), Pub. L. No. 101-647, Title XVII, § 1702, 104 Stat. 4844,did not possess the requisite nexus to interstate commerce does not suggestthe same conclusion with respect to Section 13981. Whereas the connectionbetween gun possession near schools and interstate commerce in Lopez wasboth attenuated in fact and unarticulated by Congress, see 514 U.S. at 562,16the connection between gender-motivated violence and interstate commerceis both direct and expressly established in Congress's findings and thesupporting legislative record.

As the Court explained in Lopez, such congressional findings are particularlysignificant where, as here, the connection between the regulated activityand interstate commerce may not be "visible to the naked eye."514 U.S. at 563. Indeed, the problem of gender-motivated violence, as wellas its impact on the national economy, has long been overlooked. See 1991S. Rep. 38 (noting the "faulty statistical measures" of, and thepublic blindness to, violent crimes against women). Women have often beenshamed into silence about rape, domestic abuse, and other violent crimes-and the impact of such crimes upon their lives-because of the attitudesof society generally and of the police, prosecutors, and court personnelassigned to deal with such crimes. See, e.g., 1990 S. Rep. 33-34. Congress'sfindings with respect to Section 13981 reveal both the extent of the underlyingproblem and its substantial effect on interstate commerce.

Unlike in Lopez, then, the Court need not "pile inference on inference,"514 U.S. at 567, in order to sustain Section 13981. To the contrary, inorder to invalidate Section 13981, the Court would have to set aside Congress'sexpress findings of a direct nexus between gender-motivated violence andinterstate commerce.

B. Congress May Regulate Activities That Have A Substantial Effect On InterstateCommerce, Whether Or Not Those Activities Are "Commercial" InNature

The court of appeals concluded that, even if gender-motivated violence substantiallyaffects interstate commerce, Section 13981 cannot be sustained under theCommerce Clause, for either of two alternative reasons. Neither one is correct.First, the court read Lopez to permit Congress to regulate intrastate activitiesthat substantially affect commerce only if a further condition is satisfied:either the activities themselves must be commercial in nature or the statutemust contain a jurisdictional element that requires proof of a nexus tointerstate commerce in each case. The court concluded that Section 13981satisfied neither requirement. Pet. App. 15a-31a.17 The court's reasoningreflects a fundamental misunderstanding of the commerce power and Lopez.

In Lopez, this Court observed that the GFSZA neither regulated a commercialactivity nor contained a jurisdictional element. Lopez, 514 U.S. at 551,561-562. The Court did not treat those features as dispositive, however.To the contrary, the Court reaffirmed that "[e]ven if [an] activitybe local and though it may not be regarded as commerce, it may still, whateverits nature, be reached by Congress if it exerts a substantial effect oninterstate commerce." Id. at 556 (quoting Wickard, 317 U.S. at 125)(emphasis added); see also id. at 559 ("the proper test requires ananalysis of whether the regulated activity 'substantially affects' interstatecommerce"). The Court then proceeded to evaluate, at some length, whetherthe regulated activity in that case had the requisite effect on interstatecommerce. See id. at 562-568.

Nor did Justice Kennedy's concurrence, which was joined by Justice O'Connor,propose to restrict Congress's commerce power to the regulation of commercialactivity. Instead, the concurrence explicitly presumed that Congress may,in some circumstances, regulate non-commercial activity. The concurrenceurged only that if "neither the [regulated] actors nor their conducthas a commercial character, and neither the purposes nor the design of thestatute have an evident commercial nexus," then a court should "inquirewhether the exercise of national power seeks to intrude upon an area oftraditional state concern." 514 U.S. at 580.

Lopez thus did not upset the Court's understanding that "[i]t is theeffect upon interstate commerce or upon the exercise of the power to regulateit, not the source of the injury which is the criterion of Congressionalpower" under the Commerce Clause. United States v. Wrightwood DairyCo., 315 U.S. 110, 121 (1942) (emphasis added); accord Jones & LaughlinSteel, 301 U.S. at 32. Indeed, the Lopez Court cited, without any suggestionof disapproval, earlier decisions sustaining Congress's power under theCommerce Clause to regulate activity because of its effect on commerce,without considering whether the activity itself was fairly characterizedas commercial. See Lopez, 514 U.S. at 557, 559-560 (citing Wickard, McClung,and Heart of Atlanta Motel). In Wickard, for example, the underlying activitywas an individual farmer's cultivation of wheat for his family's personalconsumption; in Heart of Atlanta Motel and McClung, the underlying activitywas individual business owners' refusal to serve potential customers onthe basis of their race. The Court's analysis in those cases did not addresswhether the underlying activity was sufficiently commercial to justify regulationunder the Commerce Clause. It instead focused on whether the underlyingactivity, whether commercial or not, could be found to have the requisiteeffect on interstate commerce. See Heart of Atlanta Motel, 279 U.S. at 257(recognizing that the correct inquiry is whether the underlying activity,even if "a moral problem," has a "disruptive effect * * *on commercial intercourse").

In any event, the underlying activity at which Section 13981 is directedhas an economic component. Section 13981 is designed to remedy gender-motivatedviolence that occurs at, or en route to, workplaces, retail establishments,and interstate transportation terminals as well as in other settings. See,e.g., 1993 S. Rep. 54 n.70 (noting the risk of violence to women employedin night jobs). And Section 13981 is designed to remedy not only gender-motivatedviolence itself but also the inadequate existing mechanisms to compensatethe victims of such violence for their economic injuries, such as lost earnings,medical expenses, and relocation costs. See, e.g., 1991 S. Rep. 44 (concludingthat the fact that "less than 1 percent of all victims have collecteddamages" against their assailants "belie[s] claims that Statelaws provide 'adequate' remedies for the victims of these crimes").Accordingly, even if Congress were limited after Lopez to regulating intrastateactivity that has some economic component, Section 13981 would come withinthat limitation.

C. Section 13981 Does Not Present The Federalism Concerns That Were CentralTo The Lopez Decision

The court of appeals' second rationale for concluding that Section 13981was not a valid exercise of Congress's authority under the Commerce Clauserested on federalism concerns. The court reasoned that Section 13981, likethe GFSZA in Lopez, could not be sustained without endorsing an unlimitedexpansion of the commerce power. See Pet. App. 31a-51a. The court failedto recognize critical differences between the two statutes that render Section13981 an appropriate, and appropriately limited, exercise of congressionalauthority within our federal system.

The GFSZA, as the Court emphasized in Lopez, was a criminal statute. 514U.S. at 561. It thus intruded into an area in which "the States possessprimary authority"- "defining and enforcing the criminal law."Id. at 561 n.3; see also id. at 564 (noting that the "states historicallyhave been sovereign" in the areas of "criminal law enforcement"and education). The Court explained that the statute consequently had twodeleterious effects on the federal-state balance. In the many States thathad already prohibited the possession of guns in or near schools, the GFSZA"effect[ed] a change in the sensitive relation between federal andstate criminal jurisdiction," because a crime that was previously prosecutedby the State now would be prosecuted by the United States. Id. at 561 n.3(internal quotation marks omitted). And, in the remaining States that hadnot chosen to prohibit such conduct, the GFSZA "displace[d] state policychoices," as the United States acknowledged. Ibid.; see also id. at583 (Kennedy, J., concurring) (observing that the GFSZA "foreclose[d]the States from experimenting and exercising their own judgment in an areato which States lay claim by right of history and expertise").

Section 13981 presents none of the federalism concerns that animated theLopez decision for several reasons:

First, Section 13981, in contrast to the GFSZA, was carefully crafted toavoid intrusions upon areas of traditional state concern. Section 13981is an exclusively civil remedy that enables victims of gender-motivatedviolence to seek redress against their assailants-a remedy that supplements,but does not supplant, any remedy that the victims may have under statelaw. Section 13981 displaces no state law and prohibits no state action.See 42 U.S.C. 13981(d)(2) (incorporating existing federal and state legalstandards in defining the conduct that may give rise to liability). Section13981 does not operate against the States or state officials and does notconscript the States or state officials in its enforcement.18

Section 13981 therefore does not implicate "the sensitive relationbetween federal and state criminal jurisdiction." Lopez, 514 U.S. at561 n.3. Nor does Section 13981 "foreclose[] the States from experimentingand exercising their own judgment" in responding to the problem ofgender-motivated violence. Id. at 583 (Kennedy, J., concurring). Accordingly,as 36 state attorneys general observe in their brief amici curiae, Section13981 "complements state and local efforts to combat violence againstwomen," without "compromising those efforts" or "intrudingin an area of traditional state concern." Br. of Arizona et al. 21.

Second, Congress understood Section 13981 to be "civil rights"legislation in the classic sense. 42 U.S.C. 13981(a); see 1990 S. Rep. 41(Section 13981 "makes a national commitment to condemn crimes motivatedby gender in just the same way we have made a national commitment to condemncrimes motivated by race and religion."). To that end, Congress limitedthe reach of Section 13981 to violence "due, at least in part, to ananimus based on the victim's gender," 42 U.S.C. 13981(d)(1), and excluded"random acts of violence unrelated to gender," 42 U.S.C. 13981(e)(1).By targeting gender-motivated violence-which Congress recognized to be "aform of discrimination," not merely "an individual crime or apersonal injury," 1993 S. Rep. 51-Congress acted to vindicate civilrights. Cf. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67 (1986) (holdingthat severe or pervasive sexual harassment may constitute discriminationin violation of Title VII).

The vindication of civil rights has long been a paradigmatic federal responsibility.See Heart of Atlanta Motel, 379 U.S. at 245 (tracing federal civil rightslegislation since 1866); see generally Mitchum v. Foster, 407 U.S. 225,238-239 & n.29 (1972) (noting that the post-Civil War Amendments andActs of Congress "constitute[d] the federal government the protectorof the civil rights") (quoting J. tenBroek, The Anti-Slavery Originsof the Fourteenth Amendment 185 (1951)). It is a responsibility that, tobe sure, is shared with the States. But in contrast to general criminallaw as involved in Lopez, civil rights historically has not been an areain which "the States possess primary authority." Lopez, 514 U.S.at 561 n.3.

Third, Congress enacted Section 13981 to address a problem that was caused,in part, by pervasive failures in the States' criminal and civil justicesystems. See pp. 7-11, supra. Indeed, in urging the adoption of the ViolenceAgainst Women Act, including the civil remedy of Section 13981, the Statesacknowledged that their own efforts to deal with the problem had proved"inadequate." 1993 H. Jud. Hearing 34-36. A statute premised onsuch systemic state failures does not presage an open-ended expansion offederal power into domains properly reserved to the States. As the dissentbelow explained, "nothing more clearly illustrates the basic difference"between the statutes in this case and Lopez than that Section 13981 "respondedto the states' self-described needs, while the GFSZA added a redundant layerof federal regulation in an area where most states had already acted."Pet. App. 276a.

If a regulated activity poses a genuine threat to interstate commerce, andthe States do not adequately address that threat, federalism principlesdo not prevent Congress from acting and require the threat to go unanswered.Cf. North Am. Co. v. SEC, 327 U.S. 686, 705 (1946) ("Th[e] broad commerceclause does not operate so as to render the nation powerless to defend itselfagainst economic forces that Congress decrees inimical or destructive ofthe national economy."). To the contrary, a "demonstrated statefailure" may make federal legislation particularly appropriate. ChiefJustice William H. Rehnquist, The 1998 Year-End Report of the Federal Judiciary7 (Jan. 1999) (describing recommendations on how Congress might appropriatelybalance, in the criminal context, jurisdiction between the state and federalcourts); see also Hodel, 452 U.S. at 281-282 (sustaining federal environmentalstandards for intrastate coal mining under the Commerce Clause based, inpart, on Congress's finding that the States could be deterred by local economicinterests from imposing similarly rigorous standards).

Finally, the Violence Against Women Act, of which Section 13981 is a part,is a prototypical example of cooperative federalism. A major purpose ofthe Act was to encourage, enhance, and enforce the States' own efforts toaddress gender-motivated violence. For example, Congress imposed federalpenalties for interstate violations of state protection orders (18 U.S.C.2262 (1994 & Supp. IV 1998)), required that state protection ordersbe accorded full faith and credit (18 U.S.C. 2265), and provided $1.6 billionin grants over six years to assist state, local, and tribal initiativesto combat gender-motivated violence (42 U.S.C. 300w-10, 3796gg, 3796hh,10409(a), 13931). All of those provisions, and Section 13981, were endorsedby the States themselves. See 1993 H. Jud. Hearing 34-36. Accordingly, especiallywhen viewed in the context of the entire Violence Against Women Act, Section13981 is duly respectful of "the federal balance the Framers designedand that this Court is obliged to enforce." Lopez, 514 U.S. at 583(Kennedy, J., concurring).

II. SECTION 13981 IS A VALID EXERCISE OF CONGRESS'S POWER TO ENFORCE THEFOURTEENTH AMENDMENT

Section 13981 is also a valid exercise of Congress's power under Section5 of the Fourteenth Amendment to remedy state action that denies individualsthe equal protection of the laws. Congress found that state justice systemsroutinely treat violent crimes motivated by gender less seriously than otherviolent crimes-a disparity that Congress attributed to false stereotypesabout gender-motivated violence and its victims, as reflected in state laws,state evidentiary rules, and the attitudes of police, prosecutors, judges,and other state actors. Congress rationally determined that Section 13981,which provides a means of seeking redress for gender-motivated violencethat the victim, not the State, controls, is an appropriate remedy for suchequal protection violations. Contrary to the court of appeals' conclusion,Congress was not limited to providing victims with a remedy against theState itself-an approach that Congress could have perceived to be impracticalas to victims, intrusive as to the States, and inconsistent with the spiritof cooperative federalism.

A. Congress Found Sex-Based Discrimination In State Justice Systems, InViolation Of The Equal Protection Clause Of The Fourteenth Amendment, ThatWarranted Remedial And Preventive Action Under Section 5 Of That Amendment

Section 5 of the Fourteenth Amendment is "a positive grant of legislativepower" to Congress. City of Boerne v. Flores, 521 U.S. at 517 (quotingKatzenbach v. Morgan, 384 U.S. 641, 651 (1966)). As this Court recentlyreaffirmed, "[i]t is for Congress in the first instance to 'determinewhether and what legislation is needed to secure the guarantees of the FourteenthAmendment,' and its conclusions are entitled to much deference." Id.at 536 (quoting Morgan, 384 U.S. at 651); see also City of Richmond v. J.A.Croson Co., 488 U.S. 469, 490 (1989) (opinion of O'Connor, J.) (Congress'spower under Section 5 "may at times also include the power to definesituations which Congress determines threaten principles of equality").

In seeking to identify conduct that violates the guarantee of equal protection,Congress has "wide latitude" and a markedly different role fromthe courts. Flores, 521 U.S. at 520, 535. Congress has a unique institutionalcapacity to gather information on a comprehensive basis, unconstrained bythe limitations of particular litigation and evidentiary rules, and to drawupon the experiences and expertise of the people and communities representedby its Members.19 Congress is thus not limited under Section 5 to addressingconduct that courts have determined to be unconstitutionally discriminatory.Rather, Congress may apply this Court's definition of the equal protectionright to a set of legislatively determined facts and ascertain, in a waythat courts cannot, whether and how often, as an empirical matter, governmentaction entails the "indiscriminate imposition of inequalities."Romer v. Evans, 517 U.S. 620, 633 (1996).

Congress's determination that "bias and discrimination in the [state]criminal justice system often deprive[] victims of crimes of violence motivatedby gender of equal protection of the laws," Conf. Rep. 385, is entitledto considerable deference. The extensive record before Congress, which includedthe reports of some 20 state task forces on gender bias, demonstrated that"crimes disproportionately affecting women," such as rape anddomestic abuse, "are often treated less seriously than comparable crimesagainst men." 1991 S. Rep. 43; see also 1993 S. Rep. 42.

The principal cause of that disparity, according to the evidence presentedto Congress, was "improper stereotypes" concerning gender-motivatedviolence and its victims. 1991 S. Rep. 39, 49; see also 1993 S. Rep. 38(noting the "archaic prejudices" that have caused "thosewithin the justice system" to "blame women for the beatings andthe rapes they suffer").20 Those stereotypes were sometimes reflectedin state laws, such as marital rape exceptions and tort immunity doctrines,and state evidentiary rules. The stereotypes were far more often reflectedin the attitudes of police officers, prosecutors, judges, and other courtpersonnel. 1993 S. Rep. 55; 1991 S. Rep. 45-48, 53-54. In the State of Washington,for example, the gender-bias task force found that "almost a quarterof the judges believed that rape victims 'sometimes' or 'frequently' precipitatetheir sexual assaults because of what they wear and/or actions precedingthe incidents." 1991 S. Rep. 47 n.63. In Maryland, a judicial commissionfound that "cases involving domestic violence are regarded [by judges]as trivial or unimportant." 1993 H. Rep. 27. In Georgia, a committeeof judges found that "police, prosecutors and judges often have gender-biasedattitudes about domestic violence" and that rape "victims receivetreatment from police, prosecutors and judges which is adversely affectedby gender bias." Id. at 27-28. In California, the task force foundthat "police officers, district and city attorneys, court personnel,mediators, and judges-the justice system-treated the victims of domesticviolence as though their complaints were trivial, exaggerated or somehowtheir own fault." 1993 S. Rep. 46; see also pp. 8-10, supra (discussingadditional evidence of gender bias in state justice systems).21

It is well established that state action based on inaccurate stereotypes-and,in particular, stereotypes relating to gender-may violate the Equal ProtectionClause of the Fourteenth Amendment. See, e.g., United States v. Virginia,518 U.S. 515, 532-533 (1996); Mississippi Univ. for Women v. Hogan, 458U.S. 718, 725-726 (1982); Craig v. Boren, 429 U.S. 190, 198-199 (1976);see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985)(zoning ordinance that "rest[ed] on an irrational prejudice againstthe mentally retarded" violated equal protection). Indeed, by the timethat Congress was considering the Violence Against Women Act, several lowerfederal courts had specifically recognized that state actors' failure totreat domestic violence as seriously as other violence may constitute anequal protection violation. See, e.g., Balistreri v. Pacifica Police Dep't,901 F.2d 696, 701 (9th Cir. 1990); Hynson v. City of Chester, 864 F.2d 1026,1030-1031 (3d Cir. 1988); Thurman v. City of Torrington, 595 F. Supp. 1521,1526-1529 (D. Conn. 1984). Here, based on the extensive factual record documentingthe States' failure to respond effectively to violent crimes against womendue to the "archaic prejudices" of "those within the justicesystem," 1993 S. Rep. 38, Congress could properly have concluded thatviolations of equal protection, under the standard set forth by this Court,were occurring repeatedly in state justice systems across the country.22

This is not to suggest that Congress found that any State has, at its highestlevels, established a deliberate policy of discriminating against women(or against victims of gender-motivated violence, whom Congress found tobe predominantly women). Rather, Congress found, largely on the basis ofevidence provided by state task forces and state officials, that many participantsin the state justice systems were acting in an intentionally discriminatorymanner and that the States' own effort to eliminate such bias had not succeededand required federal assistance. Such purposeful discrimination by stateofficials and state employees constitutes state action in violation of theEqual Protection Clause even if it does not implement, and may even violate,state policy. See, e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991) (actionsagainst state officials in their personal capacities under 42 U.S.C. 1983based on alleged constitutional violations need not involve a state policyor custom). Congress was entitled to invoke its authority under Section5 of the Fourteenth Amendment to remedy such violations.23

B. The Private Right Of Action Created By Section 13981 Is An AppropriateMechanism To Remedy And Prevent The Constitutional Violations That CongressIdentified

Congress has broad discretion under Section 5 of the Fourteenth Amendmentin fashioning remedies for violations of constitutional rights. See Flores,521 U.S. at 517-518 ("Whatever legislation is appropriate, that is,adapted to carry out the objects the amendments have in view, * * * if notprohibited, is brought within the domain of congressional power.")(quoting Ex parte Virginia, 100 U.S. 339, 345-346 (1880)); see also Morgan,384 U.S. at 650 (Section 5 gives Congress "the same broad powers expressedin the Necessary and Proper Clause").

As this Court has made clear, moreover, the question whether Congress mayreach particular conduct, in exercising its authority under Section 5, isdistinct from the question whether particular conduct violates Section 1.Thus, "[l]egislation which deters or remedies constitutional violationscan fall within the sweep of Congress' enforcement power even if in theprocess it prohibits conduct which is not itself unconstitutional and intrudesinto 'legislative spheres of autonomy previously reserved to the States.'"Flores, 521 U.S. at 518 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455(1976)); see also J.A. Croson Co., 488 U.S. at 490 (recognizing Congress'spower under Section 5 to adopt "prophylactic rules").

The private right of action provided by Section 13981 is an appropriateremedy, and a quintessentially legislative one, for the equal protectionviolations that Congress found in state justice systems. Section 13981 givesvictims of gender-motivated violence "an opportunity for legal vindication,"in federal or state court, that "the [victim], not the State, controls."1990 S. Rep. 42. Section 13981 thus prevents and remedies the discriminationthat victims of gender-motivated crimes often face in state justice systemsby giving them an alternative means of obtaining legal redress.24 And, asexplained above (see pp. 33-34 & n.18, supra), Section 13981 does soin a manner that does not intrude into the operations of state government.

The court of appeals regarded the unintrusiveness of Section 13981 as avice, suggesting that Congress's only recourse was to regulate state conductdirectly. See Pet. App. 157a. That conclusion has no constitutional basis.A remedy that permits victims of gender-motivated violence to seek the vindicationthat the States have failed to provide is a wholly permissible means ofeffectuating the purposes of the Fourteenth Amendment. Section 5 does notconfine Congress's broad remedial authority to creating causes of actionagainst States and state officials. Congress could otherwise be limitedto remedies that it regarded as ineffective or inappropriate. Congress couldconclude, for example, that a cause of action against state officials wouldundermine the cooperation that the Violence Against Women Act sought toachieve among the national, state, and local governments. And an actionof that kind would contravene established principles of prosecutorial immunity.25

Congress chose instead to proceed affirmatively to address the stereotypesand other barriers that caused States to deny victims of gender-motivatedviolence the equal protection of the laws. For example, Congress committed$1.6 billion over six years to support state, local, and tribal effortsto reduce violence against women, including funds for "training lawenforcement officers and prosecutors to more effectively identify and respondto violent crimes against women" (42 U.S.C. 3796gg(b)(1)) and "educat[ing]judges in criminal and other courts about domestic violence" (42 U.S.C.3796hh(b)(6)). Congress also sought to combat stereotypes by making clearto all Americans, including participants in state justice systems, that"attacks motivated by gender [bias] [are] to be considered as seriousas crimes motivated by religious, racial, or political bias." 1993S. Rep. 38; see 42 U.S.C. 13981(b) (declaring that "[a]ll persons withinthe United States shall have the right to be free from crimes of violencemotivated by gender"). At the same time, Congress recognized that reformof the state justice systems would take time, and so it gave victims ofgender-motivated violence a means of obtaining compensation and vindicationthat otherwise was often unattainable. Those choices are well within Congress'sbroad discretion to "determin[e] whether and what legislation is neededto secure the guarantees of the Fourteenth Amendment." Flores, 521U.S. at 536 (quoting Morgan, 384 U.S. at 651).

C. Congress's Exercise Of Its Power Under The Enforcement Clause To EnactSection 13981 Is Consistent With This Court's Decisions

1. The court of appeals, relying on United States v. Harris, 106 U.S. 629(1883), and the Civil Rights Cases, 109 U.S. 3 (1883), ruled that Section13981 "is invalid, regardless of whether its end is to remedy unconstitutionalstate action, for the simple reason that it regulates purely private conductand is not limited to individual cases in which the state has violated theplaintiff's Fourteenth Amendment rights." Pet. App. 126a. The courtmisread this Court's Reconstruction-era decisions, which do not bar Congressfrom reaching the conduct of private persons, when Congress does so in orderto remedy discrimination by a State or its agents.

In Harris, the Court struck down a statute that was premised on the assumptionthat purely private conduct could violate the Fourteenth Amendment. Thestatute at issue, Section 2 of the Civil Rights Act of 1871, ch. 22, 17Stat. 13, outlawed conspiracies among private persons to deprive any personof the equal protection of the law. The explicit predicate for the applicationof the statute was a finding that private persons had committed an equalprotection violation.26

The statute at issue in the Civil Rights Cases similarly purported to extendthe affirmative requirements of the Fourteenth Amendment directly to privatepersons. The Civil Rights Act of 1875, ch. 114, 118 Stat. 335, establisheda right to be free of private discrimination in public accommodations. See109 U.S. at 9.27 The Court explained that the critical flaw in the statutewas that it did "not profess to be corrective of any constitutionalwrong committed by the States"; instead, the statute "step[ped]into the domain of local jurisprudence, and [laid] down rules for the conductof individuals in society towards each other, and impose[d] sanctions forthe enforcement of those rules, without referring in any manner to any supposedaction of the State or its authorities." Id. at 14.

Unlike the statutes invalidated by the Reconstruction-era Court, Section13981 is not premised on the assumption that private conduct can violatethe Fourteenth Amendment. Instead, Section 13981 remedies and prevents discriminationby the States themselves. Nothing in this Court's precedents bars Congressfrom regulating private conduct in order to provide a remedy for unconstitutionalstate action.28 To the contrary, as Congress declared in enacting the ViolenceAgainst Women Act: "While the 14th amendment itself only covers actionsby the States, Congress's power to enforce the amendment includes the powerto create a private remedy as the most effective means to fight public discrimination."1993 S. Rep. 55 n.72 (citing Morgan, supra; District of Columbia v. Carter,409 U.S. 418, 423, 424 n.8 (1973) (that "[t]he Fourteenth Amendmentitself 'erects no shield against merely private conduct' * * * is not tosay * * * that Congress may not proscribe purely private conduct under §5 of the Fourteenth Amendment")). Accordingly, Section 13981 is properlyviewed as "corrective legislation, that is, such as may be necessaryand proper for counteracting * * * such acts and proceedings as the Statesmay commit or take, and which by the [Fourteenth] amendment they are prohibitedfrom committing or taking." The Civil Rights Cases, 109 U.S. at 13-14.

2. Nor does this Court's decision in Flores call into question the validityof Section 13981 as legislation to remedy and deter violations of constitutionalrights.

In Flores, the Court held that Congress exceeded its authority under Section5 of the Fourteenth Amendment in applying the Religious Freedom RestorationAct of 1993 (RFRA), 107 Stat. 1488, to the States, because RFRA appearedto redefine the substantive scope of a constitutional right, rather thansimply to enforce a constitutional right as defined under existing law.RFRA was adopted in direct response to this Court's decision in EmploymentDivision v. Smith, 494 U.S. 872 (1990), which held that the States do notneed a compelling justification to enforce neutral, generally applicablelaws that burden religious practices. The express purpose of RFRA was toreimpose the earlier compelling interest test. Flores, 521 U.S. at 515-516.The Court concluded that the remedy provided by RFRA was wholly disproportionateto any violations of a recognized constitutional right. The Court foundthat the legislative record lacked evidence of any such constitutional violations,i.e., any generally applicable law that had been enacted in modern timesout of religious bigotry. Id. at 530. And, even if some small number ofsuch constitutional violations existed, RFRA was too "[s]weeping"in its coverage to "be understood as responsive to, or designed toprevent," them. Id. at 532; see ibid. (observing that RFRA "intrud[ed]at every level of government, displacing laws and prohibiting official actionsof almost every description and regardless of subject matter"). TheCourt therefore concluded that RFRA could not properly be viewed as legislationto "enforce" any recognized constitutional right. Because Section5 gives Congress the power only to "enforce," not to define, constitutionalrights, the Court held that RFRA was not a permissible exercise of the Section5 power. See id. at 519 ("Legislation which alters the meaning of theFree Exercise Clause cannot be said to be enforcing the Clause.").

Section 13981 does not redefine the substantive prohibitions of the FourteenthAmendment. To the contrary, Section 13981 provides an additional remedyfor constitutional violations under existing law, i.e., the States' denialof the equal protection of the laws to victims of gender-motivated violencedue to "bias and discrimination in the [state] criminal justice system."Conf. Rep. 385. That remedy, moreover, is proportional to the constitutionalviolations that Congress identified. In contrast to the situation in Flores,Congress compiled an extensive record of equal protection violations, whichCongress found were frequent, ongoing, and pervasive. See, e.g., 1993 S.Rep. 49 (noting the "overwhelming evidence" contained in "[s]tudyafter study" that "gender bias permeates the court system andthat women are most often its victims"). And, in contrast to the situationin Flores, Congress fashioned an appropriately limited remedy in Section13981 that in no way intrudes into the operations of state government.29

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
MARK B. STERN
ALISA B. KLEIN
ANNE MURPHY
Attorneys

NOVEMBER 1999




1 The criminal provisions of the Violence Against Women Act, which are notat issue here, have been uniformly sustained against constitutional challengeby the courts of appeals. See, e.g., United States v. Gluzman, 154 F.3d49 (2d Cir. 1998), cert. denied, 119 S. Ct. 1257 (1999); United States v.Wright, 128 F.3d 1274 (8th Cir. 1997), cert. denied, 523 U.S. 1053 (1998);United States v. Bailey, 112 F.3d 758 (4th Cir.), cert. denied, 522 U.S.896 (1997).

2 A "crime of violence" is defined in 18 U.S.C. 16 as "anoffense that has as an element the use, attempted use, or threatened useof physical force against the person or property of another" or "anyother offense that is a felony and that, by its nature, involves a substantialrisk that physical force against the person or property of another may beused in the course of committing the offense."

3 The congressional reports noted that the full extent of the problem isdifficult to measure. 1990 S. Rep. 31-32. Estimates indicate that only 50%of rapes and fewer than 10% of sexual assaults are reported. See Women andViolence: Hearings Before the Senate Comm. on the Judiciary, 101st Cong.,2d Sess., Pt. 1, at 12 (1990); see also Violence Against Women: HearingBefore the Subcomm. on Crime and Criminal Justice of the House Comm. onthe Judiciary, 102d Cong., 2d Sess. 6 (1992) (1992 H. Jud. Hearing).

4 The legislative record also identified other ways in which gender-motivatedviolence affects interstate commerce and the national economy. The costof medical care for victims of domestic violence, for example, was estimatedat more than $100 million a year. 1990 S. Jud. Hearings 58. And as manyas 50% of the women and children who are homeless in this country are fleeingdomestic violence. 1990 S. Rep. 37.

5 The quoted statement is contained in a July 22, 1993, letter, signed orconcurred in by 38 state attorneys general, that was submitted to the HouseJudiciary Committee in support of the Violence Against Women Act. 1993 H.Jud. Hearing 34-36; see also Violence Against Women: Victims of the System:Hearing Before the Senate Comm. on the Judiciary, 102d Cong., 1st Sess.37-38 (1991) (resolution unanimously adopted by National Association ofAttorneys General endorsing the 1990 version of the Act). Some state officialsopposed the Act. See 1993 H. Jud. Hearing 77-84 (letter and resolution ofConference of Chief Justices opposing civil remedy provision of the Act).

6 Chief Judge Wilkinson and Judge Niemeyer, both of whom joined the majorityopinion, also wrote separate concurrences. See Pet. App. 168a-189a (Wilkinson,C.J., concurring) (concluding that striking down Section 13981 as exceedingCongress's constitutional authority is not improper judicial activism);id. at 189a-209a (Niemeyer, J., concurring) (proposing that in order fora regulation of intrastate activity to be sustained as substantially affectinginterstate commerce, "(1) the target of [the regulation] must be interstatecommerce, even though it may not be the purpose of the regulation, and (2)the effect that the activity has on interstate commerce must be proximateand not incidental").

7 The power to regulate intrastate activity that has a substantial effecton interstate commerce is confirmed by Congress's constitutional authority"[t]o make all Laws which shall be necessary and proper for carryinginto Execution" its enumerated powers. Art. I, § 8, Cl. 18. SeeNew York v. United States, 505 U.S. 144, 158-159 (1992) ("The Court'sbroad construction of Congress' power under the Commerce * * * Clause[]has, of course, been guided * * * by the Constitution's Necessary and ProperClause.").

8 The testimony specifically noted the impact of domestic violence on theproductivity of two major corporations engaged in interstate commerce: PolaroidCorporation and E.I. DuPont de Nemours & Company. See Hearing on DomesticViolence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong.,1st Sess. 16 (1993) (1993 S. Jud. Hearing) (noting Polaroid employees' "tardiness,poor job performance, increased medical claims [and] interpersonal conflictsin the workplace" as a result of domestic violence); 1990 S. Jud. Hearings58 (noting DuPont's need to develop programs to deal with the domestic violencethat affected many of its employees).

9 See also, e.g., 1991 S. Jud. Hearing 86 (testimony of Professor Burt Neuborne)(Women "tend to choose their jobs with one eye looking over their shoulderabout their safety. They can't work late like men can work; they can't workovertime; they can't take jobs in localities that are considered to be dangerous.").

10 See also, e.g., 1990 S. Jud. Hearings, Pt. 2, at 80 (letter from InternationalUnion, United Automobile Workers of America) ("The threat of violencehas made many women understandably afraid to walk our streets or use publictransportation.").

11 See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 33 (1994)(noting the "commuter railroad connecting New York City to NorthernNew Jersey"); Washington Metro. Area Transit Auth. v. Johnson, 467U.S. 925, 927 (1984) (noting the "rapid transit system (Metro) forthe District of Columbia and the surrounding metropolitan region" ofMaryland and Virginia).

12 Some victims of domestic violence are reduced to property crimes in orderto pay for necessities. See Domestic Violence: Terrorism in the Home: HearingBefore the Subcomm. on Children, Family, Drugs and Alcoholism of the SenateComm. on Labor and Human Resources, 101st Cong., 2d Sess. 30 (1990) (notingthat a substantial portion of the women inmates in the Massachusetts prisonsystem are domestic violence victims who were prosecuted for writing badchecks to pay for shelter, groceries, and children's clothing); cf. Perez,402 U.S. at 156 (noting that Congress's determination that extortionatecredit transactions affect interstate commerce was based, in part, on evidencethat "the loan shark racket * * * coerces its victims into the commissionof crimes against property").

13 Cf. United States v. Shubert, 348 U.S. 222, 226 (1955) (recognizing thatthe production, distribution, and exhibition of motion pictures are activitiesthat involve interstate commerce for purposes of the Sherman Act) (citingcases).

14 Cf. Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 329 (1991) (recognizingthat a conspiracy that affects a hospital's "purchases of out-of-statemedicines and supplies as well as its revenues from out of state insurancecompanies would establish the necessary interstate nexus" for purposesof the Sherman Act) (internal quotation marks and citations omitted).

15 Although the provisions of the Civil Rights Act of 1964 at issue in Heartof Atlanta Motel and McClung contain a jurisdictional element (e.g., a restaurantis subject to the statute only if it "serves or offers to serve interstatetravelers or a substantial portion of the food which it serves * * * hasmoved in commerce," 42 U.S.C. 2000a(c)), the existence of those elementswas not central to the Court's analysis in either case. The Court insteadfocused on whether the underlying regulated activity, the denial of serviceon account of race, sufficiently affected interstate commerce. See, e.g.,McClung, 379 U.S. at 304-305 (observing that "[t]he absence of directevidence connecting discriminatory restaurant service with the flow of interstatefood * * * is not, given the evidence as to the effect of such practiceson other aspects of commerce, a crucial matter").

16 After the Fifth Circuit invalidated the GFSZA for want of findings, Congressamended the statute to add findings about the effect on commerce of gunpossession near schools. See 514 U.S. at 563 n.4. Those findings were notbased upon a legislative record, however; the government did not rely uponthe findings in defending the statute, and this Court did not address oreven describe the findings. Ibid.; see id. at 612 n.2 (Souter, J., dissenting)(dismissing "these particular afterthoughts" as "conclusory").

17 The court of appeals' second rationale was that Section 13981 underminedfederalism principles in the same manner as did the GFSZA in Lopez. Thataspect of the court's decision is discussed in Part C below.

18 Section 13981 also precludes supplemental federal jurisdiction over state-lawdisputes concerning divorce, alimony, equitable distribution of property,and child custody. 42 U.S.C. 13981(e)(4). Nor may an action be removed fromstate court to federal court based on a claim under Section 13981. 28 U.S.C.1445(d).

19 See Fullilove v. Klutznick, 448 U.S. 448, 502-503 (1980) (Powell, J.,concurring) (Congress, unlike the courts, "has no responsibility toconfine its vision to the facts and evidence adduced by particular parties";instead, Congress has a "broader mission to investigate and considerall facts and opinions that may be relevant to the resolution of an issue.");see also United States v. Gainey, 380 U.S. 63, 67 (1965) ("significantweight should be accorded the capacity of Congress to amass the stuff ofactual experience and cull conclusions from it").

20 See 1991 S. Rep. 39 (noting that "[w]itnesses testified that stereotypeslike 'she asked for it,' 'she made it up,' or 'no harm was done' are frightenin>

Transfer interrupted!

APPENDIX

STATUTORY PROVISIONS

42 U.S.C. 13981 provides:

Civil rights

(a) Purpose

Pursuant to the affirmative power of Congress to enact this part under section5 of the Fourteenth Amendment to the Constitution, as well as under section8 of Article I of the Constitution, it is the purpose of this part to protectthe civil rights of victims of gender motivated violence and to promotepublic safety, health, and activities affecting interstate commerce by establishinga Federal civil rights cause of action for victims of crimes of violencemotivated by gender.

(b) Right to be free from crimes of violence

All persons within the United States shall have the right to be free fromcrimes of violence motivated by gender (as defined in subsection (d) ofthis section).

(c) Cause of action

A person (including a person who acts under color of any statute, ordinance,regulation, custom, or usage of any State) who commits a crime of violencemotivated by gender and thus deprives another of the right declared in subsection(b) of this section shall be liable to the party injured, in an action forthe recovery of compensatory and punitive damages, injunctive and declaratoryrelief, and such other relief as a court may deem appropriate.

(d) Definitions

For purposes of this section-1

(1) the term "crime of violence motivated by gender" means a crimeof violence committed because of gender or on the basis of gender, and due,at least in part, to an animus based on the victim's gender; and

(2) the term "crime of violence" means-

(A) an act or series of acts that would constitute a felony against theperson or that would constitute a felony against property if the conductpresents a serious risk of physical injury to another, and that would comewithin the meaning of State or Federal offenses described in section 16of title 18, whether or not those acts have actually resulted in criminalcharges, prosecution, or conviction and whether or not those acts were committedin the special maritime, territorial, or prison jurisdiction of the UnitedStates; and

(B) includes an act or series of acts that would constitute a felony describedin subparagraph (A) but for the relationship between the person who takessuch action and the individual against whom such action is taken.

(e) Limitation and procedures

(1) Limitation

Nothing in this section entitles a person to a cause of action under subsection(c) of this section for random acts of violence unrelated to gender or foracts that cannot be demonstrated, by a preponderance of the evidence, tobe motivated by gender (within the meaning of subsection (d) of this section).

(2) No prior criminal action

Nothing in this section requires a prior criminal complaint, prosecution,or conviction to establish the elements of a cause of action under subsection(c) of this section.

(3) Concurrent jurisdiction

The Federal and State courts shall have concurrent jurisdiction over actionsbrought pursuant to this part.

(4) Supplemental jurisdiction

Neither section 1367 of Title 28 nor subsection (c) of this section shallbe construed, by reason of a claim arising under such subsection, to conferon the courts of the United States jurisdiction over any State law claimseeking the establishment of a divorce, alimony, equitable distributionof marital property, or child custody decree.



1 So in original. The word "means" probably should appear after"(A)" below.