How Have Recent Social Movements Shaped Civil Rights Legislation
for Women? The 1994 Violence Against Women Act
(Washington, D.C.: U.S. Government Printing Office, 1978).
In 1994, Congress enacted the Violence Against Women Act (VAWA), which responded to the inadequacies of state justice systems in dealing with violent crimes against women. Passed under the larger Omnibus Crime Control Act, this multi-faceted statute addressed the inequality that women victims of violence encounter in state justice systems. The statute provided funding to states for criminal law enforcement against perpetrators of violence, and for a variety of other assistance, taking into account the particular needs of women of color and immigrant women. At a 1996 symposium, "A Promise Waiting to Be Fulfilled: The Violence Against Women Act and the Construction of Multiple Consciousness in the Civil Rights and Feminist Movements," the VAWA was hailed as "a success of historic proportions on various political and social fronts. . . . an undeniable victory for feminism . . . also a civil rights victory."
This project focuses on a key aspect of the bill--Title III--the civil rights provision that gave women victims of violence access to federal courts. By making violence against women a violation of rights guaranteed by the U.S. Constitution, Title III had the potential to become an innovative and powerful weapon against gender subordination. It created a civil rights category of action for women who, through violence, "are reduced to symbols of group hatred" and become the object of violence "motivated by gender." Title III was created to establish a remedy for female victims of violence analogous to civil rights suits for injury motivated by race.
This project has five parts. First, it offers examples of the social movement origins of the 1994 Violence Against Women Act: the shelter movement that began to assist battered women in the 1960s; and feminist legal scholars who exposed gender bias in the courts in the 1980s and 90s. Second, it includes testimony by supporters of the act at Congressional hearings in 1993. Third, it considers the 1994 VAWA in the context of challenges to gender bias in American courts. Fourth, it views the 2000 U.S. Supreme Court case, U.S. v. Morrison, which overturned Title III of the 1994 VAWA. Fifth, it looks at responses to Morrison.
Judith Resnik, Arthur Liman Professor of Law at Yale Law School, has written extensively about gender bias in state and federal courts. Her writings put the Violence Against Women Act in historical perspective by analyzing its relationship to efforts to eliminate gender bias in the courts. Resnik's writings provide a guide to the process of change during the 1990s that gave rise to the VAWA and to subsequent strategies by feminist legal theorists to maintain the gains of the 1994 act despite opposition to it in federal courts. She is the author of three documents in this project and the co-author of one (see Documents 2, 17, 18, 22).
Part I: Social Movement Origins
of the 1994 Violence Against Women Act
During the 1960s and '70s the women's movement politicized domestic violence, calling public attention to this heretofore private issue and viewing it as a crucial means by which men exercised illegitimate dominance over women. "Wife abuse is chronic and widespread at all economic and social levels," declared the National Plan of Action at the National Women's Conference in Houston in 1977. The conference urged Congress to consider "the elimination of violence in the home to be a national goal," and called for expanded "legal protection" at the state level to permit women "to sue their assailants for civil damages" (see Document 1).
At the same time that this social movement mobilized to change popular attitudes toward domestic violence by making it less acceptable and "normal," feminist legal scholars and women jurists led a campaign to educate judges about gender bias in the courts (see Document 2). Judith Resnik described that process in 1991 as consisting primarily of "Gender Bias Task Forces," which began in New Jersey in 1982 and were subsequently adopted in many other states. In 1988 Congress created a committee to scrutinize the federal judicial system, which noted the existence of gender bias in state judicial proceedings and concluded that "it is unlikely that the federal judiciary is totally exempt from instances of this general social problem." Using the proposed Violence Against Women Act as an example, Resnik analyzed the need for women's access to federal courts and the cultural and judicial obstacles to their access.
Part II. Testimony at Congressional Hearings
Three sets of hearings were held as Congress considered the proposed Violence Against Women Act in 1993: one in Utah, one in Maine, and one in Washington, D.C. Support was nearly unanimous. Very few in Congress raised their voices against it. Indeed, support was so widespread that Senator Dianne Feinstein, Democrat of California, called it "a new kind of bipartisanship." As testimony here shows, leaders on the right wing of the Republican party, such as Senator Orrin Hatch of Utah, whom one might expect to oppose the bill, strongly supported it. Indeed Hatch's support was just as strong as that of Senator William Cohen of Maine, an independent Republican on the party's left wing (see Documents 3A, 3B, and 7). Orrin Hatch declared that "the issue of inter-state protection of victims logically fits into Federal legislative mandates."
People who testified in support of the bill revealed the breadth of the social movements behind the Violence Against Women Act. In Utah this included the Young Women's Christian Association and a variety of volunteer and advocacy groups that aided victims of domestic violence (see Documents 4 and 5). Diane Stewart of Citizens Against Physical and Sexual Abuse urged "Those in Federal leadership" to "take a firm stand against domestic violence and sexual assault" (see Document 5A). A representative of the American Medical Association declared, "this is a public health issue" and noted that in 1992 an entire issue of the Journal of the American Medical Association was devoted to "the battered female" (see Document 6). Medical studies found that domestic violence constituted the leading cause of injury to females between the age of 15 and 40. Senator Cohen cited statistics that "estimated that an act of domestic violence occurs every 18 seconds and that some 6 million women are beaten each year by their husbands and boyfriends and that 4,000 women each year die as a result" (see Document 7). The president-elect of the American Medical Association urged that domestic violence be treated "as the public health epidemic that it truly is" (see Document 9).
Hearings in Washington D.C. focused on how to shape appropriate remedies for the epidemic of violence against women. Most who testified supported the pathbreaking civil rights section in the bill, which gave women victims of violence access to federal courts and made violent crimes against them a federal offense. Others opposed this strategy. A debate ensued in which supporters and opponents of the civil rights portion of the bill explored the reasons why women victims needed access to federal courts and the cultural and legal obstacles that blocked such access.
Those who supported the civil rights portion of the legislation could not simply take the same constitutional route that made race a federal civil rights issue in the 1950s, '60s, and '70s. Race-related access to federal courts was based on the Fourteenth Amendment (adopted in 1868), which prohibited states from denying "to any person within its jurisdiction the equal protection of the laws." Beginning with the 1954 decision by the U.S. Supreme Court in Brown v. Board of Education, the court relied on the Fourteenth Amendment to rule race discrimination a violation of the U.S. Constitution. Could the Fourteenth Amendment also become the grounds for an attack on gender discrimination? Advocates of Title III of the VAWA thought that it could.
Supporters of the civil rights portion of the bill also buttressed their arguments with another strategy that drew on Article I, Section VIII of the U.S. Constitution, which gave Congress the power to "regulate commerce . . . among the several States." Violence against women disrupted commerce, they argued, by causing women to miss work for days, weeks, months or, in the case of murder, the rest of their lives. Such losses was costly not only to the women and their families, but to the national economy.
At hearings in Washington, D.C. the chief opposition to a civil rights component in the VAWA came from a representative of the Women's Rights Project of the American Civil Liberties Union. She questioned the appropriateness of legislation that provided "a remedy for gender-based attacks by private individuals, and not to provide the same remedy for violence committed by private individuals against other victims based on race, ethnicity, religion or sexual orientation" (see Documents 11A and 11B).
Representatives of other organizations strongly supported the civil rights provision. An attorney from the U.S. Department of Justice said "its broad scope is justified" (see Document 12). A letter from the National Association of Women Judges endorsed "the creation of a federal civil rights remedy" to "provide needed congressional recognition that gender based violence is a national problem" (see Document 13). Testimony by a representative of the Legal Defense and Education Fund of the National Organization for Women described how the bill was changed "after extensive discussions with Federal judges, civil liberties groups, and others concerned about the scope of the proposed civil rights remedy" (see Document 14A). She presented the most complete summary of "what Title III Will Accomplish" (see Document 14B). Representing the Fund for the Feminist Majority, Eleanor Smeal said that "Title III of the Act is necessary both to officially acknowledge that crimes against women because they are women are occurring and to provide women federal civil remedies to compensate in part for the inefficient, ineffective, and often unsympathetic police response at state and local levels" (see Document 15B).
Part III: The Violence Against Women Act of 1994,
and Challenges to Gender Bias in the American Courts in the mid 1990s
The Violence Against Women Act was passed in 1994 as a part of the larger Violent Crime and Control Act. The statute provided funding to states for criminal law enforcement against perpetrators of violence, and for a variety of other assistance, taking into account the particular needs of women of color and immigrant women. Its provisions included sections on Interstate Enforcement, Shelter Grants, Arrest Policies in Domestic Violence Cases, a National Domestic Violence Hotline, and Civil Rights for Women (see Document 16).
The civil rights provision became Subtitle Section C in the Act. This section explained:a Federal civil rights action as specified in this section is necessary to guarantee equal protection of the laws and to reduce the substantial adverse effects on interstate commerce caused by crimes of violence motivated by gender; and the victims of crimes of violence motivated by gender have a right to equal protection of the laws, including a system of justice that is unaffected by bias or discrimination and that, at every relevant stage, treats such crimes as seriously as other violent crimes.
Thus this provision of the Act invoked two Constitutional defenses: the commerce clause of Article I, Section VIII, and the Fourteenth Amendment.
Judith Resnik's 1996 article, "Asking About Gender in Courts," placed the VAWA within the context of recent challenges to gender bias in federal courts (see Document 17). In 1992 "the Ninth Circuit (encompassing federal trial and appelate courts in nine western states) became the first within the federal system to issue a report on the effects of gender throughout courts," and other federal jurisdictions followed. In 1995 the Federal Judicial Center published a research guide for federal gender task forces. That year, however, opposition against such task forces mobilized in the U.S. Senate.
Part IV: The U.S. Supreme Court Overturns
the Civil Rights Provision of the VAWA
The civil rights section of the VAWA came before the U.S. Supreme Court in 1999 in the form of a rape case brought by Christy Brzonkala, an 18-year-old first year college student at Virginia Polytechnic Institute. She filed the suit after being attacked by two men, Antonio Morrison and James Crawford, on September 21, 1994. Documents state that within thirty minutes of meeting the two men, whom Brzonkala (pronounced brahn-KAH-lah) knew only by first names and by their status as Virginia Tech football players, they allegedly raped her twice. These were particularly violent assaults that allegedly took place after Brzonkala repeatedly told Morrison "no." Neither man used a condom. As is often the case, Brzonkala did not immediately report the rape. Two months later, she filed a complaint with the school. She did not pursue criminal charges against the men, because she had not preserved any physical evidence of the rapes. Christy Brzonkala withdrew from Virginia Polytechnic Institute after learning that the college took no action against one of the men and gave the other a deferred suspension that permitted him to keep playing varsity football. Brzonkala, who asked that her name be used in articles about the case, then sued her assailants in federal court, using the civil rights section of the 1994 VAWA.
Brzonkala's suit was watched closely on its journey through the courts because it was the first to be brought under the VAWA's civil damages provision. When the case reached the Supreme Court in 1999, it occupied the center of the Court's continuing debate over defining the boundary between Federal and state authority. Briefs were submitted by groups on both sides of the debate. Supporting access to federal courts were dozens of groups, some local, some national, some rights-oriented, some legal or policy-oriented, such as the American Association of University Women; the American Federation of State, County and Municipal Employees, AFL-CIO; Business and Professional Women/USA; the American Medical Women's Association; the Coalition for Humane Immigrant Rights of Los Angeles; the Feminist Majority Foundation; the General Federation of Women's Clubs; the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; the National Alliance of Sexual Assault Coalitions; the National Association of Human Rights Workers; the National Coalition Against Domestic Violence; the National Council of Jewish Women; and the National Women's Health Network. Other briefs supporting the civil rights component of the 1994 statute were offered by law scholars and human rights experts.
Briefs in support of Morrison and Crawford contained no equivalent array of groups, but individuals and organizations prominent in conservative social movements were well represented, such as the Cato Institute; the Center for the Original Intent of the Constitution; the Clarendon Foundation; Phyllis Schlafly, Eagle Forum Education and Legal Defense Fund; and the Independent Women's Forum. The latter did not name any constituent groups, and instead provided the names of three men and one woman lawyer. The brief declared that the Forum supported "policies that promote individual responsibility, limited government, and economic opportunity."
Attorneys associated with the Legal Defense and Education Fund of the National Organization for Women argued Brzonkala's case before the Supreme Court. They drafted briefs and "coordinated amicus briefs which were filed by sister organizations, professors, a member of Congress and 37 Attorneys General, all in support of the law's constitutionality." One of those briefs was co-authored by Judith Resnik (see Document 18). That brief argued that the VAWA civil rights section was an appropriate remedy for women in Brzonkala's circumstances. "The case brings into play two of our basic constitutional commitments: first to a federal system that both guarantees the States a major role and gives Congress broad responsibility over interstate commerce, and second, to a nationwide guarantee that all persons enjoy the equal protection of the laws." The brief insisted,Were the Court to conclude that the evidence of direct and substantial effects on commerce was not sufficient in this case, a host of congressional statutes would be open to question. Indeed, challenges are already underway to a wide variety of federal statutes, including the Endangered Species Act, the Clean Water Act, CERCLA, the Child Support Recovery Act, and many others.
The brief concluded, "To overturn this law, enacted with care and deliberation on this record, would indeed be to `pass the line which circumscribes the judicial department . . . to tread on legislative ground.'"
Nevertheless, in a 5 to 4 decision, the majority of the Supreme Court decided that "Congress has no authority to enact" the provision "which provides a federal civil remedy for victims of gender-motivated violence--under either the Federal Constitution's commerce clause" or "the Constitution's Fourteenth Amendment" (see Document 19). The court held that because violence against women had only "an attenuated and indirect relationship with interstate commerce," the law was not a proper exercise of Congressional authority under the constitution's commerce clause. To accept that reasoning, Chief Justice Rehnquist wrote, "would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit or consumption. . . . Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity." The majority opinion emphasized that "The Constitution requires a distinction between what is truly national and what is truly local," and it held the crime against Christy Brzonkala to be local.
Ruling that the Fourteenth Amendment was not adequate grounds for the civil rights provision of the 1994 Violence Against Women Act, the court maintained that the Fourteenth Amendment pertained to state actions, but the 1994 act "is not aimed at proscribing discrimination by officials . . . it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias." The majority concluded that "under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States."
Voting with the majority were Justices Rehnquist, O'Connor, Scalia, Kennedy and Thomas. Four Justices dissented: Souter, Stevens, Ginsburg and Breyer. In their dissent, those Justices listed evidence of the catastrophic scale of domestic violence, which had prompted Congress to add the civil rights section to the VAWA.
Part V: Reactions to Morrison in 2000
In siding with the defendants, who were represented by the conservative Center for Individual Rights, the court confirmed that a narrow majority of justices wished to limit federal authority, even at the expense of weakening civil rights. Linda Greenhouse, who tracked the passage of the VAWA and United States v. Morrison for the New York Times, wrote, "the limitations on Congressional authority to legislate under the 14th Amendment raise questions about the validity of civil rights laws enacted under that authority, since those also apply to action by private individuals who are not `state actors.'" Judith Resnik later commented,Neither the phrase "truly local" nor "truly national" appears in the United States Constitution. Indeed, the Court's reliance on the modifier "truly" suggested that calling something local or national did not suffice to capture the constitutional distinction claimed--that the Violence Against Women Act (VAWA) impermissibly addressed activities definitional of and reserved to state governance.
Senator Charles Schumer of New York said, "Just at a time when the economic and social conditions of the world demand that we be treated as one country and not as 50 states, the Supreme Court seems poised to undo decades of a consensus that the federal government has an active role to play." Kathryn J. Rodgers, executive director of the NOW Legal Defense and Education Fund, criticized the decision, saying it took "The federal government out of the business of defining civil rights and creating remedies." She elaborated further:The Rehnquist Court's ruling in U.S. v. Morrison is a setback for women's rights and a triumph for those who seek to roll back 30 years of federal civil rights law under the guise of states' rights. The Court has slammed shut the courthouse door, wished women good luck, and sent us back to the states for justice" (see Document 20).
The narrow 5 to 4 decision in the case meant that the issue was likely to be revisited in the future, but for the present the strategy of opening civil rights remedies in cases of gendered violence was suspended.
Responding to U.S. v. Morrison, as well as to the continuing tide of violence against women, Congress passed a revised act in October 2000, which highlighted prostitution in its title, "Victims of Trafficking and Violence Protection Act of 2000" (see Document 21). The new statute included titles on Strengthening Law Enforcement to Reduce Violence Against Women, Strengthening Services to Victims of Violence, Limiting the Effects of Violence on Children, Strengthening Education and Training to Combat Violence Against Women. Unlike the VAWA of 1994, this legislation contained no mention of women's civil rights.
Judith Resnik analyzed the Morrison decision in the context of institutional changes that permit the federal judiciary--especially the Supreme Court--to exercise power independently of its constitutional authority to render opinions on the cases before it (see Document 22). The main institutional change was the power of the Judicial Conference of the United States to shape legislation by issuing opinions about proposed statutes while they were being debated by Congress. The Judicial Conference was created in 1922 to oversee the administration of the U.S. courts. The Chief Justice of the Supreme Court serves as its presiding officer. Other members consist of the chief judges of the federal circuit courts and some district judges. The Judicial Conference has become a powerful means by which the judicial branch of government regulates the ability of the legislative branch to generate "rights-seeking activity" in the federal courts. Resnik describes the process between 1991 and 1994 by which members of Congress redrafted portions of the VAWA to meet judicial objections (see Document 22).
Another institutional change was the new power exerted by the Chief Justice to shape legislation simply by declaring his opinion, however ad hoc and unsupported by the evidence. Thus, even though the civil rights portion of the statute generated only about fifty cases in federal courts during its brief life between 1994 and 2000, the Chief Justice continued to claim that the federal courts would be overwhelmed if VAWA cases gained access to them. Thus the federal judiciary has begun to exercise a powerful role in crafting federal rights quite independently of its constitutionally defined responsibilities in ruling on the cases that appear before it.
As Judith Resnik pointed out, "The history of the relationship between the federal judiciary and the Violence Against Women Act is thus embedded in a larger history, of the role of the federal courts as a corporate entity, pressed by an energetic leader, making judgments, advising, and lobbying Congress about what rights to accord and about what visions of federalism should govern" (see Document 22). The history of the 1994 Violence Against Women Act tells us a great deal about how social movements generate "rights-seeking activity." It also shows us how that activity generates opposition and requires a long-term commitment on the part of its advocates.