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
REPLY BRIEF FOR THE UNITED STATES
SETH P. WAXMAN Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 (202) 514-2217
Respondents do not dispute that violence against women is an immense nationalproblem to which the States have failed adequately to respond. Nor do theydispute that violence against women takes a substantial toll on the nationaleconomy and interstate commerce, such as by preventing women from obtainingand retaining jobs, traveling, and engaging in all manner of economic activity.They also acknowledge that Congress's findings on those matters are entitledto considerable deference.
Yet, respondents insist that Congress is powerless to provide victims ofgender-motivated violence a civil damages remedy against their assailants,notwithstanding that the remedy is narrowly tailored to vindicate victims'civil rights, does not target state officials or intrude into state functions,and does not expand or contract whatever tort remedies may be availableto victims under state law. Indeed, respondents suggest that the very narrownessand unobtrusiveness of the remedy undermine its constitutionality, ignoringthe well-established rule that Congress may choose to address a problemone step at a time. Respondents are mistaken.
A. Section 13981 Is An Appropriate Exercise Of Congress's Power Under TheCommerce Clause
Respondents contend that 42 U.S.C. 13981, the civil remedy provision ofthe Violence Against Women Act of 1994, exceeds Congress's authority underthe Commerce Clause for essentially three reasons: first, because violenceagainst women is not an inherently commercial or economic activity; second,because the nexus between gender-motivated violence and interstate commerceis, in respondents' view, as attenuated as the nexus between gun possessionnear schools and interstate commerce in United States v. Lopez, 514 U.S.549 (1995); and, third, because respondents perceive no limiting principlethat would enable the Court to uphold Section 13981 but to strike down otherstatutes as exceeding Congress's commerce power. None of those contentionsis valid.
This Court has repeatedly declined to impose formalistic tests of what activitiesmay be regulated by Congress under the Commerce Clause. So long as an activity,even if neither commercial nor interstate, substantially affects interstatecommerce, the activity is not automatically immune from regulation underthe Commerce Clause, as respondents suggest. Such a rule would leave Congressunable to address evils that, although not themselves commercial, pose asignificant threat to interstate commerce. As the majority and concurring opinions in Lopez suggest, when Congresshas invoked its commerce power to regulate activity that is neither inherentlycommercial or economic nor connected to a legislative program to regulateor protect a market, the Court may subject the regulation to additionalscrutiny to assure that a proper distinction between the national and thepurely local spheres of authority is maintained. The Court may thus considerwhether the connection between the regulated activity and interstate commerceis unduly attenuated. The concurring opinion suggests that in such instancesthe Court should also consider whether the regulation intrudes into an areaof traditional state concern (and, if so, whether it interferes with stateauthority in a manner that is excessive given the strength of the nationalobjective). Section 13981, unlike the statute at issue in Lopez, satisfiesthose additional tests.
1. Congress's power to regulate intrastate activities that substantiallyaffect interstate commerce is not confined to the regulation of those activitiesthat are themselves inherently commercial or economic in nature. This Courthas never so stated.1 Indeed, the Court has indicated that Congress mayregulate non-commercial activities as part of a legislative program to regulateor protect a market. See Lopez, 514 U.S. at 561.2 Nor would the restrictionproposed by respondents bear any relation to the purpose of the commercepower, given that interstate commerce may be substantially affected, indeedobstructed, by activities that are not themselves commercial. In Lopez, the Court found that the activity regulated by the Gun-Free SchoolZones Act of 1990 (GFSZA) "has nothing to do with 'commerce' or anysort of economic enterprise," 514 U.S. at 561, but the Court did nottreat that finding as dispositive. Instead, the Court proceeded to considerwhether that non-commercial activity had the requisite effect on, and nexusto, interstate commerce. Id. at 562-568. Justice Kennedy's concurrence,which Justice O'Connor joined, suggests that Congress might exercise itscommerce power even in situations where "neither the actors nor theirconduct has a commercial character, and neither the purposes nor the designof the statute has an evident commercial nexus," provided that Congressdoes not thereby "upset[] the federal balance." Id. at 580. Respondents' proposed distinction between commercial and non-commercialactivities would disable Congress from using its commerce power to protectcommerce. It would preclude Congress from exercising that power to regulateany intrastate non-commercial activity, no matter how immediate, direct,and substantial a threat that activity may pose to the national economyand interstate commerce. Cf. National Organization for Women, Inc. v. Scheidler,510 U.S. 249, 258 (1994) (recognizing that "[a]n enterprise surelycan have a detrimental influence on interstate or foreign commerce withouthaving its own profit-seeking motives"). The Framers could not haveintended to leave Congress impotent to protect the Nation against such threats.Few would doubt, for example, that Congress may prohibit private possessionof nuclear, biological, or chemical weapons, or tanks, artillery pieces,or hand grenades, although mere possession of those articles may not be"commercial," as the Court used the term in Lopez. To take another example, Congress has long exercised its commerce powerto require the adoption and observance of an official standard of time throughoutthe Nation. See 15 U.S.C. 260 et seq.; see also Allied Theatre Owners, Inc.v. Volpe, 426 F.2d 1002 (7th Cir.), cert. denied, 400 U.S. 941 (1970). Theactivity of setting a clock or a watch is not inherently commercial. Yet,if Congress could not establish clear and consistent rules governing time,interstate commerce would be significantly burdened. This Court has learned from experience that "mathematical or rigidformulas" are unworkable in assessing the reach of Congress's authorityunder the Commerce Clause. Wickard v. Filburn, 317 U.S. 111, 123 n.24 (1942)(quoted in Lopez, 514 U.S. at 573 (Kennedy, J., concurring)); see also Lopez,514 U.S. at 567 (recognizing that there cannot be "precise formulations"of the extent of the commerce power). It should reject respondents' invitationto adopt such a formula in this case.
2. Section 13981 satisfies the standard articulated by this Court for determiningwhether intrastate activity may be regulated under the Commerce Clause,i.e., whether the activity "exerts a substantial economic effect oninterstate commerce" that is not unduly attenuated. Lopez, 514 U.S.at 556 (quoting Wickard, 317 U.S. at 125). First, Section 13981, in contrast to the GFSZA in Lopez, rests on extensivecongressional findings explicating the relationship between gender-motivatedviolence and interstate commerce. See H.R. Conf. Rep. No. 711, 103d Cong.,2d Sess. 385 (1994) (H.R. Conf. Rep.); U.S. Br. 5 (quoting relevant findings).Those findings are supported by a massive legislative record, compiled overfour years of hearings, which document the impact of violence against womenon the national economy and interstate commerce.3 No legislative recordof any sort was compiled with respect to the GFSZA. The conclusory "findings"in support of that statute were made by a subsequent Congress, and thuswere not relied on by the United States in defending the statute or consideredby the Court in evaluating it. See Lopez, 514 U.S. at 562-563 & n.4.Consequently, unlike in Lopez, the Court need not "pile inference uponinference" to attempt to discern a nexus between the regulated activityand interstate commerce. Id. at 567. Congress has clearly articulated thatnexus; nothing therefore need be inferred by the Court.4 Second, unlike the GFSZA, Section 13981 regulates an activity that has adirect, immediate, and substantial relationship to interstate commerce.In Lopez, the Court would have had to conclude that the possession of gunsin school zones (1) might lead to violent crime, (2) which might affectthe learning process, (3) which might produce less-productive citizens someyears in the future, (4) which might ultimately impair the national economy.See 514 U.S. at 563-564 (describing the government's argument); id. at 565(describing the dissent's argument). And the Court would have had to assumethat the educational system, an independent actor under the authority ofthe States, would fail to compensate for whatever adverse effects on thelearning process might be attributable to gun possession in school zones. No such attenuated chain of causation is necessary to sustain Section 13981.As Congress found, violence against women has a direct impact on interstatecommerce by, among other things, preventing victims from working in thenational economy, deterring victims and potential victims from seeking higher-payingjobs, traveling interstate, and engaging in other economic activity, andimposing higher medical costs on victims, employers, insurers, and governments.See U.S. Br. 23-27. For example, as the evidence before Congress demonstrated, women do notseek jobs that would require them to work at night, out of a reasonablefear that they will be subjected to violence because they are women. Theevidence also demonstrated that women who are, in fact, raped or batteredoften cannot work, or work productively, for weeks or even months afterward.And 6000 women are raped or battered each day in this country. See U.S.Br. 6-7, 23-24 (describing evidence). There is nothing at all remote orspeculative about the connection between this conduct and interstate commerce. Third, unlike the GFSZA, Section 13981 seeks to remedy not some generalizedand randomly distributed impact on commerce, but rather the particularizeddistortion of commerce that is caused by invidious discrimination againsta discrete group. Such distortion causes individuals' economic decisions-suchas where to work, where to travel, and where to shop-to be determined byimmutable characteristics, such as sex or race, and thereby transforms thecharacter of commerce for an entire sector of the population. See Katzenbachv. McClung, 379 U.S. 294, 300 (1964); Heart of Atlanta Motel v. United States,379 U.S. 241, 253 (1964). Indeed, Section 13981 can properly be viewed as part of the framework oflaws enacted by Congress that serve to remove barriers to women's equalparticipation in the marketplace and thereby to correct the distortion ofinterstate commerce caused by sex discrimination. See, e.g., 42 U.S.C. 2000e-2(a)and (b) (prohibiting employment discrimination "because of [an] individual's* * * sex" or "on the basis of * * * sex"); 42 U.S.C. 2000e(k)(defining "because of sex" and "on the basis of sex"to include "because of or on the basis of pregnancy, childbirth, orrelated medical conditions"); 29 U.S.C. 206(d) (requiring equal payfor women). See also H.R. Conf. Rep. 385 (recognizing relationship betweenSection 13981 and Title VII); S. Rep. No. 138, 103d Cong., 1st Sess. 48,54 (1993) (1993 S. Rep.) (same).
3. Justice Kennedy's concurrence in Lopez suggests that, when Congress addressesan intrastate activity that is neither itself economic or commercial innature nor connected to a congressional program to regulate or protect amarket, the Commerce Clause inquiry may not be satisfied merely by the factthat the activity substantially affects interstate commerce. It may alsobe necessary in such circumstances "at the least [to] inquire whetherthe exercise of national power seeks to intrude upon an area of traditionalstate concern." 514 U.S. at 580.5 That inquiry is satisfied with respectto Section 13981 by three federalism-based considerations: Section 13981addresses the historically federal concern of civil rights, it avoids undueencroachment into areas of traditional state authority, and it respondsto a documented state failure to address a national problem that poses asubstantial threat to interstate commerce.6 First, Section 13981 singles out those acts of violence that are "due,at least in part, to an animus based on the victim's gender." 42 U.S.C.13981(d)(1). It thereby seeks to provide a remedy for a violation of civilrights, an area of historically federal concern, which serves interestsdistinct from those of state tort law. As the final Senate Judiciary CommitteeReport on Section 13981 explained, "[w]hile traditional criminal chargesand personal injury suits focus on the harm to the individual, a civil rightsclaim redresses an assault on a commonly shared ideal of equality."1993 S. Rep. 51; see Griffin v. Breckenridge, 403 U.S. 88, 101-102 (1971)(recognizing that a requirement that the defendant acted with discriminatoryanimus distinguishes a civil rights remedy from a general tort remedy). Second, Section 13981 does not operate against the States, does not displaceany state law, and does not implicate the peculiarly "sensitive relationbetween federal and state criminal jurisdiction." Lopez, 514 U.S. at561 n.3. Section 13981 simply creates a private right of action, which enablesvictims of gender-motivated violence to seek damages and other relief againsttheir assailants, as an alternative to whatever remedies may be availableto them under state tort law.7 And Section 13981 expressly bars supplementalfederal jurisdiction over state-law claims involving such matters as divorce,alimony, and child custody. 42 U.S.C. 13981(e)(4). The care that Congressexercised in preserving the States' authority over matters of criminal andfamily law, as well as over general tort law, confirms that Section 13981was not designed to "upset[] the federal balance to a degree that rendersit an unconstitutional assertion of the commerce power." Lopez, 514U.S. at 580 (Kennedy, J., concurring). Third, Section 13981 was enacted in response to the States' sustained failureto deal effectively with the problem of violence against women-a failurethat was thoroughly documented in the evidence before Congress, includinga decade of state task force reports on gender bias in state justice systems,and that was acknowledged by the vast majority of state attorneys general.As that evidence demonstrated, despite the existence of state criminal lawsand state tort remedies capable of reaching most acts of violence againstwomen, many police, prosecutors, judges, and other state actors continuedto treat rape, domestic abuse, and similar crimes that primarily affectwomen less seriously than other violent crimes. See U.S. Br. 7-11, 35-36,38-42 (describing such evidence).8 For their part, the States advised Congressthat the problem required a national solution, including a federal rightof action for victims of gender-motivated violence. See Crimes of ViolenceMotivated by Gender: Hearing Before the Subcomm. on Civil and ConstitutionalRights of the House Comm. on the Judiciary, 103d Cong., 1st Sess. 34-36(1993) (letter of 38 state attorneys general). At least in such extraordinarycircumstances, where there is an essentially undisputed record of prolongedstate inability to remedy a problem that imposes a substantial burden oninterstate commerce, federalism concerns should not require Congress towithhold a remedy while the problem and its consequences persist. To be sure, the Framers of our Constitution sought to divide the powersof the national government and the state governments, so that each wouldserve as a check on abuses by the other and thereby protect the rights ofthe people. But the Framers also sought to create a strong central government,correcting what they perceived to be the weakness of the central governmentunder the Articles of Confederation, including its inability to addressnational concerns. See generally New York v. United States, 505 U.S. 144,163 (1992); FERC v. Mississippi, 456 U.S. 742, 791 (1982) (O'Connor, J.,concurring and dissenting); Wesberry v. Sanders, 376 U.S. 1, 9-10 (1964).It is consistent with the Framers' intent to construe the commerce powerin a manner that does not leave the national government powerless to dealwith a substantial threat to interstate commerce (and to the rights of asignificant segment of the population) that the States have been unableto deal with on their own.9
B. Section 13981 Is An Appropriate Exercise Of Congress's Power Under TheEnforcement Clause Of The Fourteenth Amendment
We have explained (U.S. Br. 36-49) that Section 13981 may also be upheldas an exercise of Congress's "power to enforce, by appropriate legislation,the provisions of" the Fourteenth Amendment, including its guaranteeof equal protection of the laws. U.S. Const. Amend. XIV, § 5. Section13981 serves to "enforce" women's right to equal protection ofthe laws against crimes of violence-a right that Congress found had oftenbeen denied women in state justice systems as a result of the prejudicesof police officers, prosecutors, judges, and other state actors. Respondents counter that Section 13981 is not a permissible exercise ofCongress's power under Section 5 of the Fourteenth Amendment for four reasons:first, because Section 13981 does not, in respondents' view, "enforce"equal protection rights; second, because Section 13981, like the statutesin United States v. Harris, 106 U.S. 629 (1883), and the Civil Rights Cases,109 U.S. 3 (1883), provides a right of action against private individuals;third, because Section 13981 is not, according to respondents, "congruentand proportional" to the constitutional violations that Congress identified;and fourth, because Section 13981 could not be upheld without granting Congressan unlimited general police power. Respondents are again mistaken on allcounts.
1. Respondents contend (Morrison Br. 36) that Section 13981 "does not'enforce' any citizen's right to equal treatment" because Section 13981does not directly "prohibit or deter states or state officials fromdoing anything." This Court has not viewed Congress's enforcement powerunder Section 5 so restrictively. To the contrary, the Court has recognizedthat Congress has broad discretion under Section 5 to adopt "[w]hateverlegislation is appropriate, that is, adapted to carry out the objects theamendments have in view." City of Boerne v. Flores, 521 U.S. 507, 517(1997) (quoting Ex parte Virginia, 100 U.S. 339, 345-346 (1880)). It isnecessary only that the legislation in some manner "deters or remediesconstitutional violations." Id. at 518. Section 13981 "deters or remedies," in multiple ways, the equalprotection violations that Congress identified, i.e., the failure of statejustice systems to treat rape, domestic abuse, and other crimes that primarilyaffect women as seriously as they do other violent crimes. See 1993 S. Rep.42, 49. First, Section 13981 provides an alternative to the state justicesystem in which to obtain vindication and redress. Accordingly, even ifa state police officer, a state prosecutor, or a state judge has wronglydisregarded a woman's complaint of gender-motivated violence (e.g., becauseof what the Senate Judiciary Committee described as "archaic prejudices"that have caused "those within the justice system" to "blamewomen for the beatings and the rapes they suffer," 1993 S. Rep. 38),the woman still has an opportunity to have her complaint validated by afederal judge and a federal jury through a process that "the survivor,not the State, controls." S. Rep. No. 545, 101st Cong., 2d Sess. 42(1990) (1990 S. Rep.). Section 13981 thereby prevents the complete denialof equal protection that Congress found would too often occur if a victimcould look only to the state justice system for vindication and redress.And, in the event that a victim who was treated unfairly by the state justicesystem prevails on a Section 13981 claim, state actors may well be persuadedto give more careful consideration to her complaint and the complaints ofsimilar victims. Congress also intended that Section 13981 would more broadly deter and remedyviolations of equal protection in state justice systems by "send[ing]a powerful message that violence due to gender bias affronts an ideal ofequality shared by the entire Nation." 1993 S. Rep. 44; see 1990 S.Rep. 41 (Section 13981 "makes a national commitment to condemn crimesmotivated by gender"). Congress contemplated that the message wouldbe heard by police, prosecutors, judges, and other state actors, therebycombating the common "misconception that crimes against women are second-classcrimes." 1993 S. Rep. 42; see Violence Against Women-Victims of theSystem: Hearing Before the Senate Comm. on the Judiciary, 102d Cong., 1stSess. 125 (1991) (testimony of chair of Florida Supreme Court Gender BiasStudy Implementation Commission that a federal civil remedy such as Section13981 would "increase the responsiveness of the states").
2. Respondents contend (Morrison Br. 37-39) that Section 13981 is underminedby Harris and the Civil Rights Cases, which respondents construe as "reject[ing]Section 5 of the Fourteenth Amendment as a basis for reaching private conduct."As we previously explained (U.S. Br. 46-48), the Court's holdings in thosecases are more limited-i.e., that Congress cannot legislate under Section5 on the theory that the Equal Protection Clause may be violated by purelyprivate conduct unconnected to state action. Such an understanding is confirmedby the Court's explanation in the Civil Rights Cases that the statute atissue-which established a right to be free of private discrimination inplaces of public accommodation-did "not profess to be corrective ofany constitutional wrong committed by the States." 109 U.S. at 14;see ibid. (noting that the statute established "rules for the conductof individuals in society towards each other, * * * without referring inany manner to any supposed action of the State or its authorities");see also Harris, 106 U.S. at 640 ("the section of the law under considerationis directed exclusively against the action of private persons, without referenceto the laws of the State or their administration by her officers").10 Section 13981, in contrast, does "profess to be corrective of [a] constitutionalwrong committed by the States," a denial of equal protection in statejustice systems to victims of gender-motivated violence. As the ConferenceReport explains, Section 13981 was designed to remedy "existing biasand discrimination in the criminal justice system," which "oftendeprive[] victims of crimes of violence motivated by gender of equal protectionof the laws and the redress to which they are entitled." H.R. Conf.Rep. 385; see also 1993 S. Rep. 55 (explaining that Section 13981 was designedto "rectify the biases" of state law and practice, which weredepriving women of the "equal protection of the laws * * * in the classicsense"). It is not inconsistent with the holdings of Harris and theCivil Rights Cases-much less with the text of the Fourteenth Amendment-topermit Congress to reach private conduct as a means of preventing and remedyingstate violations of equal protection.
3. Respondents further argue (Morrison Br. 43) that Section 13981 is nota "congruent and proportional" remedy for either of two reasons:first, that the legislative record does not, in respondents' view, containevidence of widespread violations of equal protection (id. at 44-47) and,second, that Section 13981 may not apply in some situations in which equalprotection violations have occurred and may apply in some situations inwhich equal protection violations have not occurred (id. at 47-48). a. Respondents are simply wrong in suggesting (Morrison Br. 44-45) thatthe legislative record contains only isolated or "anecdotal" evidenceof state violations of equal protection. Respondents ignore the more than20 state task force reports, cited repeatedly in the congressional committeereports on Section 13981, that exhaustively investigated gender bias instate justice systems.11 Those reports consistently found that violent crimesthat primarily affect women, such as rape and domestic abuse, are treatedless seriously by state justice systems than are other violent crimes. Andthe reports attributed that disparity, in significant part, to the "prejudices,""biases," and "stereotypes" harbored by police, prosecutors,judges, and other state actors. See S. Rep. No. 197, 102d Cong., 1st Sess.43-44 (1991) (1991 S. Rep.); see also U.S. Br. 7-11, 38-41 & nn.20,21 (citing evidence of bias from state task force reports and other materialsbefore Congress); Brzonkala Br. 13-17; Amici Br. of Law Professors 18-23.Respondents do not, and cannot, dispute that purposeful state action thatdisadvantages a particular group because of such inaccurate stereotypesviolates the Equal Protection Clause. See, e.g., United States v. Virginia,518 U.S. 515, 532-534 (1996); City of Cleburne v. Cleburne Living Ctr.,473 U.S. 432, 450 (1985).12 Respondents fail to recognize, moreover, the "wide latitude" thatis accorded Congress in identifying conduct that may violate equal protection.Flores, 521 U.S. at 520, 535. Congress is not required to observe the sameconstraints as would a court with respect to, for example, evidentiary rules,burdens of proof, and the need to base its conclusions solely on the recordof the case before it. See Fullilove v. Klutznick, 448 U.S. 448, 502-503(1980) (Powell, J., concurring) (Congress, unlike the courts, "hasno responsibility to confine its vision to the facts and evidence adducedby particular parties," but may "consider all facts and opinionsthat may be relevant to the resolution of an issue"). Congress is thusnot restricted to addressing particular conduct that the courts have alreadydetermined to be constitutionally discriminatory.13 In sum, the legislative record in this case amply establishes the existenceof widespread violations of equal protection in state justice systems. Thiscase thus stands in stark contrast to the cases on which respondents rely,Flores and Florida Prepaid Postsecondary Education Expense Board v. CollegeSavings Bank, 119 S. Ct. 2199 (1999), where the legislative record revealedno pattern of constitutional violations. b. Respondents also complain (Morrison Br. 47-48) that Section 13981 isoverinclusive, underinclusive, or both. But this Court has never requireda precise fit between the constitutional violations identified by Congressand the remedy provided by Congress under Section 5 of the Fourteenth Amendment. As for respondents' contention that Section 13981 is not limited to Statesin which equal protection violations have occurred (Morrison Br. 47), thisCourt has recognized that "[l]egislation which deters or remedies constitutionalviolations can fall within the sweep of Congress' enforcement power evenif in the process it prohibits conduct which is not itself unconstitutional."Flores, 521 U.S. at 518; accord, e.g., Katzenbach v. Morgan, 384 U.S. 641,651 (1966); South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). Moreover,given the evidence before Congress documenting the disparate treatment ofcrimes primarily affecting women in virtually every State that had studiedthe subject, Congress could reasonably conclude that the threat of equalprotection violations existed throughout the Nation. See 1991 S. Rep. 43(noting that "[s]tudy after study commissioned by the highest courtsof the States-from Florida to New York, California to New Jersey, Nevadato Minnesota-has concluded that crimes disproportionately affecting womenare often treated less seriously than comparable crimes against men"). As for respondents' complaint that Section 13981 does not reach all situationsin which equal protection violations might occur, this Court has recognizedthat Congress is entitled to deal with a problem one step at a time. SeeFCC v. Beach Communications, Inc., 508 U.S. 307, 316 (1993) (Congress "mustbe allowed leeway to approach a perceived problem incrementally.").And other provisions of the Violence Against Women Act, such as those thatprovide funds to educate state police, prosecutors, and judges on issuesrelating to rape and domestic violence, also respond to the equal protectionviolations that Congress identified. See 42 U.S.C. 3796gg(b)(1), 3796hh(b)(6). c. As we have explained (U.S. Br. 49-50 & n.29), Section 13981, unlikethe statutes invalidated in Flores and Florida Prepaid, is congruent andproportional to the constitutional violations that Congress identified.It does not seek to redefine the substantive prohibitions of the FourteenthAmendment. It instead is designed to respond to an extensively documentedrecord of constitutional violations, as defined under existing law, thatCongress found to be frequent, ongoing, and widespread. It does so by providinga private civil remedy to victims of the very sorts of crimes that Congressfound were treated in a discriminatory manner in state justice systems.And it does not operate against the State, interfere with state functions,or rewrite state law.
4. Finally, contrary to respondents' assertions (Morrison Br. 48), the Courtwould not be "grant[ing] Congress an unlimited general police power"by sustaining Section 13981 as an appropriate exercise of Congress's authorityunder Section 5 of the Fourteenth Amendment. As discussed above and in ouropening brief (at 7-11, 38-41 & nn. 20, 21), Congress adopted Section13981 only after compiling an extensive record of pervasive denials of equalprotection in state justice systems-denials that were limited to crimesof rape, domestic abuse, and other violence that primarily affect women.There is no reason to believe that Congress could compile a similar recordwith respect to crimes generally. * * * * * For the foregoing reasons and those stated in our opening brief, the judgmentof the court of appeals should be reversed.
Respectfully submitted.
SETH P. WAXMAN Solicitor General
DECEMBER 1999
1 Cf. Wickard v. Filburn, 317 U.S. 111, 125 (1942) ("[E]ven if appellee'sactivity be local and though it may not be regarded as commerce, it maystill, whatever its nature, be reached by Congress if it exerts a substantialeconomic effect on interstate commerce.") (emphases added).
2 The lower courts have thus consistently held that Congress may prohibitinterference with access to medical facilities in order to protect the marketfor their services, and may prohibit possession of controlled substancesor weapons as part of a comprehensive regulation of the market in thoseproducts. See, e.g., Hoffman v. Hunt, 126 F.3d 575, 582-588 (4th Cir. 1997)(upholding Freedom of Access to Clinic Entrances Act against Commerce Clausechallenge), cert. denied, 523 U.S. 1136 (1998); Terry v. Reno, 101 F.3d1412, 1418-1420 (D.C. Cir. 1996) (same), cert. denied, 520 U.S. 1264 (1997);see also, e.g., Proyect v. United States, 101 F.3d 11 (2d Cir. 1996) (percuriam) (upholding statute prohibiting, inter alia, possession of controlledsubstances and manufacture of controlled substances for personal use againstCommerce Clause challenge); United States v. Leshuk, 65 F.3d 1105, 1111-1112(4th Cir. 1995) (same); see also, e.g., United States v. Franklyn, 157 F.3d90, 93-96 (2d Cir.) (upholding statute prohibiting possession of machineguns against Commerce Clause challenge), cert. denied, 525 U.S. 1027 (1998);United States v. Kenney, 91 F.3d 884 (7th Cir. 1996) (same).
3 As respondents note (Morrison Br. 24), while Congress's findings addressthe impact on interstate commerce of gender-motivated violence, much ofthe evidence in the legislative record concerns the impact of rape, domesticabuse, and other violence that primarily affects women, whether or not motivatedby gender animus. It was reasonable for Congress to conclude from the recordthat gender-motivated violence alone is sufficiently widespread to imposea substantial burden on interstate commerce. Congress should not be precludedfrom focusing on this particularly egregious species of violence againstwomen by the shortage of studies isolating its economic impact.
4 Respondents observe (Morrison Br. 3) that some parties, including theDepartment of Justice, expressed concerns about Congress's authority underthe Fourteenth Amendment to enact earlier versions of Section 13981. Inresponse to those concerns, Congress undertook an extensive analysis ofwhether a civil remedy could be justified under the Commerce Clause as wellas the Fourteenth Amendment. That analysis produced the findings discussedin the text. Neither of the Department of Justice letters cited by respondentsaddresses the possibility of a Commerce Clause basis for the statute. Nordo the letters address the findings and the rationale subsequently articulatedby Congress to justify the statute under the Fourteenth Amendment-namely,that the statute is an appropriate exercise of Congress's power under Section5 to remedy pervasive denials of equal protection in state justice systems.
5 An inquiry into whether a statute "seeks to intrude upon an areaof traditional state concern," Lopez, 514 U.S. at 580 (Kennedy, J.,concurring), does not, under this Court's jurisprudence in such areas aspreemption, equate with an inquiry into whether a statute of general applicabilityincidentally affects an area of traditional state concern. A general federalprohibition of private possession of weapons of mass destruction, for example,would incidentally affect state parks, state schools, and state office buildings,as well as businesses, residences, and all other property within a State.But that is not the sort of "intrusion" that was at issue in Lopez,which involved a statute that prohibited gun possession only in or nearschools. See generally United States v. Oregon, 366 U.S. 643, 648-649 (1961)(federal statute properly directed to an area of legitimate congressionalconcern was not invalid even though it "pertains to the devolutionof property," a subject otherwise controlled by state law); Kolovratv. Oregon, 366 U.S. 187, 197-198 (1961) (state law controlling devolutionof property must accommodate federal treaty rights); Hauenstein v. Lynham,100 U.S. 483, 488-490 (1880) (same).
6 Respondents suggest (Morrison Br. 29) that such considerations cannothelp to define the limits of the commerce power because "they havenothing to do with 'commerce among the states.'" Respondents are mistaken.For example, in determining what effects on commerce are sufficiently substantialto justify federal regulation, one consideration has historically been whetherthe regulation is civil rights legislation that seeks to remove barriersthat restrict the participation of a discrete group in commerce. See pp.7-8, supra. Respondent Morrison's suggestion that the commerce power doesnot admit of federalism-based limitations is further belied by his own acknowledgmentof such limitations. See Morrison Br. 29 n.10 (observing that "thecommerce power is plenary where it is regulating private conduct and actingproperly within that power").
7 A cause of action under Section 13981 and a cause of action under statetort law are subject to different substantive, procedural, and evidentiaryrequirements. Some of the requirements of a Section 13981 action, such asthe unavailability of interspousal immunity and the availability of attorneys'fees, may be more favorable to the plaintiff; other requirements, such asthe necessity to prove that the conduct at issue constituted a crime ofviolence and was motivated by gender animus, may be less favorable to theplaintiff. The existence of such differences does not, as respondents assert(Crawford Br. 29-34), cause Section 13981 to "displace" statetort law. Such displacement would occur only if Section 13981 preemptedstate law or dictated the requirements that must be met in a cause of actionunder state law. Section 13981 does neither.
8 Respondents mistakenly suggest (Morrison Br. 2) that 28 U.S.C. 1445(d),which provides that a Section 13981 action cannot be removed from statecourt to federal court, casts doubt on Congress's intent "to respondto 'systemic' bias in state courts." In providing for concurrent jurisdictionin federal and state court over Section 13981 actions, see 42 U.S.C. 13981(e)(3),Congress sought to enable victims of gender-motivated violence to choosethe more appropriate forum, which in some cases might be a convenient statecourthouse rather than a distant federal courthouse. Congress sought in28 U.S.C. 1445(d) to prevent defendants from nullifying that choice of forum.Congress did not, of course, find that all, or even most, state judges orother state actors do not deal fairly with rape, domestic abuse, and othercrimes of violence that primarily affect women. Nor need Congress have madesuch a finding in order for Section 13981 to be sustained.
9 Of course, overlapping exercise of regulatory authority is consistentwith our system of federalism, as shown by such familiar examples as thecoexistence of federal and state antitrust laws.
10 It is irrelevant that, as respondents note (Morrison Br. 37-39), somemembers of Congress observed during the debates on the statutes in Harrisand the Civil Rights Cases that some States were not enforcing their ownlaws evenhandedly. That does not mean that those statutes were designed,in the view of either Congress or the Court, to deter or remedy constitutionalviolations by the States. No such design is evident in the text of thosestatutes.
11 The state task forces were composed of "appellate and trial judges,lawyers, bar leaders, law professors, court administrators judicial educators,legislators, community leaders, and social scientists." Lynn H. Schafran,Overwhelming Evidence: Reports on Gender Bias in the Courts, Trial 28 (Feb.1990) (cited in S. Rep. No. 197, 102d Cong., 1st Sess. 43-44 (1991)). Thetask forces "employ[ed] a wide range of data-collection methods,"including public hearings, interviews with judges, lawyers, and litigants,reviews of transcripts and written decisions, empirical studies, and surveysof judges, lawyers, and court personnel. Ibid.
12 As respondents note (Morrison Br. 45), some victims of gender- motivatedviolence are men, although Congress assumed that the number was relativelysmall. But that fact does not undermine the conclusion that women have oftenbeen denied equal protection of the laws in state justice systems and thatSection 13981 is an appropriate remedy for those violations.
13 As we noted (U.S. Br. 41), however, several federal courts had recognizedby the time that Section 13981 was enacted that state actors' failure totreat domestic violence as seriously as other violence may constitute anequal protection violation. Respondents erroneously claim (Morrison Br.46) that "[n]ot one of these cases found a sex-discriminatory policyafter trial." In fact, after the decision denying the municipality'smotion to dismiss in one of those cases, Thurman v. City of Torrington,595 F. Supp. 1521 (D. Conn. 1984), the jury found an equal protection violationand awarded damages of $2.3 million, and the plaintiff then agreed to settlethe case for $1.9 million. See Millions Awarded Beaten Wife Who Sued ConnecticutPolice, Washington Post (June 26, 1985); see also Batterers Win AnotherRound, Boston Globe (May 13, 1998). Congress was well aware of the landmarkThurman case, as the plaintiff testified in support of the Violence AgainstWomen Act. Women and Violence: Hearings Before the Senate Comm. on the Judiciary,101st Cong., 2d Sess. 99 (1990) (testimony of Tracy Motuzick (formerly Thurman));see id. at 88 (discussion of Thurman case by Chairman Biden).
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