- The Washington Times - Tuesday, May 16, 2000

Congress overstepped the Constitution by passing a law that let sexual-violence victims sue in federal civil courts, the Supreme Court ruled yesterday when it rejected use of the interstate commerce clause to protect rape victims.

"Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity," the high court said in terminating Christy Brzonkala's federal lawsuit against Virginia Tech football players Antonio Morrison and James Crawford, who she said brutally raped her.

"If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States," Chief Justice William H. Rehnquist wrote in the 5-4 opinion upholding the 4th U.S. Circuit Court of Appeals.

"If Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence," said the majority opinion joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Congress assembled a "mountain of data" on rapes, injuries in domestic violence, the numbers of women who quit work after a rape, and the number of rapists who are spared prison, Justice David H. Souter wrote in a dissent cosigned by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.

"Is its conclusion irrational in view of the data amassed?" Justice Souter said in arguing that Congress made its case for a broad economic effect. "The sufficiency of the evidence before Congress to provide a rational basis for the finding cannot seriously be questioned."

The dissent said the law couldn't be cutting too deeply into state prerogatives since 38 states filed a brief supporting it.

"It's a very good day for the Constitution and the rule of law," said Michael E. Rosman, general counsel for the Center for Individual Rights, who argued the football players' case before the high court.

"Today's decision will be viewed as a historic setback for feminist advocacy groups, but it is a victory for American women whose safety is best preserved by strengthening local law enforcement rather than by relying on federal bureaucrats," he said.

"The national debate was worth it for sure," said Miss Brzonkala's original lawyer, Eileen Wagner of Richmond. She said she was not surprised at the outcome.

"I don't know what's next in line," said Sen. Joseph R. Biden Jr., Delaware Democrat, sponsor of the law, who called the ruling "extremely troublesome."

Kathy Rodgers of NOW Legal Defense Fund, which argued Miss Brzonkala was right to take her case to federal courts without reporting it to police, called the ruling "a severe blow for women's rights because of the chilling effect it will have on Congress" after its effort to identify a form of discrimination against women.

"Congress is trying to address that with a creative, specific solution, and the court says, 'No, you can't do that,' " she said of congressional action based on the theory that violence against women is a social ill that cumulatively affects the national economy.

Miss Brzonkala also sued Virginia Polytechnic Institute and State University, charging officials protected the football players because of their athletic roles. In February, the school said it agreed to pay her $75,000 to settle a separate lawsuit.

The justices did not address separate criminal provisions of the 1994 Violence Against Women Act, which remain in force. All sections of the law relate equally to both sexes, and some criminal cases involve wives killing husbands.

The chief justice pointedly added a footnote saying criminal sanctions uniformly have been upheld by federal appeals courts insofar as the law governs crimes "against spouses or intimate partners during interstate travel" because that is a channel of commerce.

The decision was a sharp setback to the Clinton administration, which lobbied for the law and aggressively defended it before the federal courts.

"If we were to accept the government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Chief Justice Rehnquist wrote in rejecting Justice Department arguments. "The Constitution requires a distinction between what is truly national and what is truly local."

Court papers say Miss Brzonkala told of being raped by the football players in their room in the Virginia Tech dormitory where all three were housed.

Miss Brzonkala did not report the incident to police until after the case was in civil court, although it was investigated by college officials and a state grand jury called by prosecutors after Miss Brzonkala sued. No one was indicted.

"I don't believe it happened," Mr. Rosman said yesterday, although throughout the lawsuit judges and lawyers have acted, as is normal in civil cases, on the assumption Miss Brzonkala's version was the truth.

"Our deep satisfaction over the result in this case is tempered only by the toll that these destructive charges of sexual assault have had on Tony Morrison and his parents," Mr. Rosman said.

Mr. Rosman's group issued a press release yesterday calling Miss Brzonkala "a white athlete" and Mr. Crawford and Mr. Morrison "black athletes."

Asked why he included racial information, lawyer Curt Levey, a spokesman for the center, said it was meant to point up an irony.

"When black men faced unsubstantiated charges of rape in the South, liberals once rushed to their defense. Feminist causes are more politically correct now than helping the poor and minorities," Mr. Levey said.

Miss Brzonkala, who left Virginia Tech after her freshman year, said before the case was argued in January, "Rape is like having your soul torn out. This violence happens to too many women and we need laws on the books to fight it."

Yesterday's decision built on the Supreme Court's 1995 Lopez ruling declaring unconstitutional the federal Gun-Free School Zones Act. A series of other decisions after that has reaffirmed that Congress cannot strip states of powers without clear-cut constitutional authority.

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