The Violence Against Women Act of 1994: Connecting Gender-motivated Violence to Interstate Commerce

• Publication year: 1998

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 4SPRING 1998

The Violence Against Women Act of 1994: Connecting Gender-Motivated Violence to Interstate Commerce

Judi L. Lemos(fn*)

Just as it is important to "document that cross burnings are more than 'arson' and that swastikas painted on synagogues are more than 'vandalism,'" it is important to recognize gender-motivated violence for what it is: a violent form of gender oppression.(fn1)

Most people in the United States intuitively understand that burning a cross on a front lawn of an African-American's home or defacing a Jewish house of worship with a Nazi symbol is wrong. Legally, however, those actions were not prohibited until thirty-four years ago, when Congress passed landmark civil rights legislation.(fn2) Most people also instinctively know that targeting an individual for oppression based on gender is morally wrong. But unlike the protection of the law for those who might be targeted because of race or religion, a victim of gender-motivated violence only recently received the protection of federal laws. In 1994, Congress enacted the Violence Against Women Act (VAWA),(fn3) which created a civil right to be free from gender-motivated violence. And, like the race-based civil rights legislation that was repeatedly attacked on constitutional grounds, VAWA is currently the subject of heated debates in federal courts. While those earlier civil rights were created under the auspices of the Fourteenth Amendment's Equal Protection Clause,(fn4) Congress created VAWA through use of its enumerated power to regulate interstate commerce.(fn5) But is gender-motivated violence sufficiently connected to interstate commerce to justify Congress's use of its commerce power?

The notion of "interstate commerce" has changed dramatically since the Constitution was adopted over 200 years ago. While Congress could regulate, through its commerce power, the delivery of goods between Vermont and New York in 1789, wholly intrastate commercial activities were not under congressional authority.(fn6) Today, however, Congress may exercise its commerce authority to regulate wholly intrastate activities with little direct connection to commerce if it finds that those activities substantially affect interstate commerce.(fn7) Congress's commerce power has significantly expanded over the years, but has it expanded enough to cover the creation of VAWA's civil right to be free from gender-motivated violence?

The answer to that question became murkier in 1995, when the United States Supreme Court complicated the Commerce Clause debate with its ruling in United States v. Lopez.(fn8) In a five-to-four decision, the Court struck down the Gun-Free School Zones Act, holding that Congress, in enacting the legislation, overstepped the boundary of its commerce power.(fn9) That fractured decision represents either a contraction of the previously expansive Commerce Clause authority or a limited ruling that has little or no impact on future commerce power debates. In the three years since Lopez, the high Court has denied certiorari on every case that deals with the Commerce Clause.(fn10)

VAWA's constitutionality could be the issue that the Supreme Court uses to clarify the Lopez ruling. In December 1997, a three-judge panel of the Fourth Circuit, in Brzonkala v. Virginia Polytechnic and State University, issued the first federal appellate court ruling on VAWA's constitutionality.(fn11) The Fourth Circuit has since vacated the panel's ruling and granted a rehearing en banc.(fn12) Regardless of the outcome of the en banc hearing, VAWA appears ripe for Supreme Court review. However, the question remains whether the Court will grant certiorari should the parties appeal the forthcoming Fourth Circuit en banc ruling.

This Comment explores whether the Supreme Court will grant certiorari in the Brzonkala case, and whether the Court will uphold VAWA as a constitutional use of the commerce power. Part I explains the provisions of VAWA. Part II scrutinizes the development of Commerce Clause jurisprudence, which culminated in the Lopez decision. Part III analyzes the panel's Fourth Circuit ruling in Brzonkala. Part IV reviews the Supreme Court's handling of post-Lopez Commerce Clause cases and discusses whether the Court will grant certiorari to a challenge of VAWA's constitutionality. Finally, Part V examines arguments regarding VAWA's constitutionality. This Comment concludes that the Supreme Court will probably deny certiorari in the Brzonkala case. However, should the Court grant review, it will likely find VAWA a constitutionally permissible use of the commerce power.

I. The Violence Against Women Act of 1994

Before analyzing whether VAWA is constitutional, one must first understand what VAWA provides and why Congress enacted it. VAWA permits victims of gender-motivated violence to sue in federal court to recover compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.(fn13) The congressional purpose in enacting the legislation was "to protect the civil rights of victims of gender-motivated violence and to promote public safety, health, and activities affecting interstate commerce by establishing a Federal civil rights cause of action for victims of crimes of violence motivated by gender."(fn14)

VAWA's civil right is simply that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender."(fn15) But that seemingly broad right was significantly narrowed later in the statute when Congress defined a "crime of violence motivated by gender" as "a crime of 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[.]"(fn16) In addition, Congress further limited access to a VAWA claim by excluding "random acts of violence unrelated to gender"(fn17) and "acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender[.]"(fn18)

Congress claimed it had the authority to enact VAWA under both the Commerce Clause and under the Equal Protection Clause of the Fourteenth Amendment.(fn19) Before Lopez in 1995, the Supreme Court's Commerce Clause jurisprudence seemed to support Congress's claim. However, Lopez called into question both the breadth of the commerce power and VAWA's constitutionality.

II. The Collision of Expansive and Restrictive Commerce Clause Jurisprudence

The debate over VAWA's constitutionality joins a long line of Commerce Clause debates, many of which came before the U.S. Supreme Court.(fn20) Some scholars argue that Congress has long used the Commerce Clause to pass legislation beyond the authority granted by the Constitution,(fn21) while others contend that Congress's commerce power is so broad that, as long as a rational basis exists to connect an activity to interstate commerce, any legislation is constitutional.(fn22)

A. The Commerce Clause Cases Prior to 1995

The Supreme Court restricted congressional use of the commerce power in the early part of this century by requiring regulations to have a direct link to interstate commerce.(fn23) During this period, the Court struck down legislation when the activities regulated had no direct impact on interstate commerce. The Court held that such legislation went beyond the scope of a power that existed only to allow congressional regulation of interstate commerce.(fn24)

However, the Court retreated from such a restrictive view of congressional authority in the New Deal Era. As Congress promulgated legislation to carry out the social agenda of the period, links between interstate commerce and the activities regulated became progressively weaker and more indirect.(fn25) But instead of striking down such legislation, the Supreme Court upheld even regulation of wholly intrastate activities(fn26) and activities that were not strictly "commercial."(fn27) The Court allowed legislation to stand so long as Congress had a rational basis for finding at least a minimal connection to interstate commerce.(fn28) While the Court indicated that some limit existed on Commerce Clause power, it declined to draw that line.(fn29) Such deference to Congress continued until the Lopez decision in 1995, when the Court drew a line, albeit one that is far from bright.

B. United States v. Lopez

In 1995, the Supreme Court struck down the Gun-Free School Zones Act of 1990(fn30) by a five-to-four vote in United States v. Lopez.(fn31) The Act made it a federal crime to possess a gun in a school zone.(fn32) The fractured Court included six justices who either dissented outright or concurred with strong reservations.(fn33) The majority opinion, authored by Chief Justice Rehnquist and joined by Justices Kennedy, O'Connor, Scalia, and Thomas, held that Congress exceeded its Commerce Clause authority in passing the Act because carrying a gun in a school zone does not substantially affect interstate commerce.(fn34) However, Justices Kennedy and O'Connor filed a reserved concurrence hinting that they might break with the other three justices on future Commerce Clause cases, although they agreed that the law at issue in Lopez was unconstitutional.(fn35) Meanwhile, the spirited dissents filed by Justices Breyer, Stevens, Souter, and Ginsburg promised a continuing battle should the Court...