Justices skeptical about law on gender violence

Supreme Court to study its constitutionality amid rulings on states' rights

January 12, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Congress' move five years ago to offer new protection to women who are victims of sexual assaults ran into constitutional trouble in the Supreme Court yesterday.

Justices who have been part of a consistent majority favoring states' rights seemed troubled at a hearing over Congress' authority in its Violence Against Women Act, a provision allowing women to file civil damage lawsuits against their attackers.

Justice Sandra Day O'Connor, one of the leaders of the states'-rights bloc in the court, suggested that if Congress had power to pass such a law, "presumably it could also legislate" on other areas traditionally left to the states and covered by state laws, such as alimony, child custody and marital property rights.

She seemed troubled by that prospect. Her skepticism was striking because women's-rights groups that support the 1994 law need O'Connor's vote to save the law, and many of them believed that they could gain that vote.

O'Connor has strongly supported women's-rights issues, and women's advocates thought those views would outweigh her role as a leader of the states'-rights majority. That hope appeared to be quickly dispelled.

O'Connor's concerns about expanding Congress' power to move into areas long dominated by state government were shared by other justices yesterday, especially Justice Antonin Scalia.

The constitutionality of the Violence Against Women Act reached the court in a case involving a 23-year-old Washington woman, Christy Brzonkala, who was in the audience at yesterday's hearing. Under the act, she is seeking the right to sue two former football players at Virginia Tech University who she says raped her in the fall of 1994 when she was a freshman at the school in Blacksburg. Neither of the men she accused was charged with a crime.

A lower federal court ruled that the damages remedy given to women was beyond Congress' power.

Brzonkala probably could have sued under Virginia law, but she opted to file a lawsuit under the Violence Against Women Act. The measure was passed based on the theory of women's-rights advocates that gender bias is so strong in state court systems that lawsuits under state law would be ineffective.

Brzonkala's lawyer, Julie Goldscheid, a staff attorney for the NOW Legal Defense Fund, and U.S. Solicitor General Seth P. Waxman, who expressed the Clinton administration's support for Brzonkala's case, were buffeted by skeptical questioning from conservative justices yesterday.

Scalia was particularly aggressive, suggesting that Goldscheid and Waxman were making arguments that would support Congress' authority to pass federal criminal laws, such as laws against robbery and murder, that are typically matters for state legislation.

Scalia said that the founders of the nation "had no idea" that they were granting Congress "general police power."

The attorneys countered that Congress had not sought to displace state authority to deal with sex-based violence, only to create an alternative remedy in a law permitting federal suits seeking damages.

Justice Ruth Bader Ginsburg's comments seemed to support that interpretation of the law. Justices John Paul Stevens and Stephen G. Breyer also spoke favorably of the law. But they appeared to be outnumbered.

Goldscheid told the court that sex-based violence "is one of the most persistent barriers to women's full participation in the nation's economy."

Michael E. Rosman, a Washington attorney who spoke for the two former male students Brzonkala wants to sue, noted that the Supreme Court has never ruled that Congress had the authority to regulate any crime it wished, without any proof that it was acting to vindicate a genuine federal interest. The 1994 law, Rosman said, was an effort "to regulate purely private behavior."

The court is expected to rule on the dispute by summer.

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