Published on Tuesday, May 16, 2000 in the Los Angeles Times
Going Backwards:
US Supreme Court Ruling Dooms Federal Hate Crime Statutes
by David Savage
 
WASHINGTON--The Supreme Court, rejecting the notion of national laws against "hate crimes," struck down a federal measure Monday that gave battered spouses and victims of rape and other sexual violence a right to sue their attackers.

The 5-4 ruling is the latest in which the court's conservative majority has narrowed the federal government's power--including over civil rights.

The Violence Against Women Act of 1994 is unconstitutional, the court declared, because the federal government has no right to regulate a private act, such as rape, that is neither part of interstate commerce nor caused by state officials.

Congress has no power over "noneconomic, violent criminal conduct" that does not cross state lines, said Chief Justice William H. Rehnquist. "The Constitution requires a distinction between what is truly national and what is truly local."

The decision throws out a lawsuit brought by a former Virginia Tech student who says that as a university freshman she was raped in a dormitory room by a football star.

After Christy Brzonkala reported the incident to school officials, a hearing was held, and the player, Tony Morrison, was suspended. Prior to the fall football season, however, school officials reversed the suspension, and local prosecutors brought no charges in the case. Her lawsuit against the player became a test case of the new law.

States can enact hate crime laws, but Rehnquist's reasoning appears to doom national laws targeted at crimes against blacks, gays, Jews, Muslims or ethnic minorities, legal experts agreed.

A pending hate crime bill on Capitol Hill would give federal prosecutors the option of intervening in crimes that were allegedly motivated by the victim's sexual orientation, gender or disability. Despite its popularity, the legislation has stalled in the House.

USC law professor Erwin Chemerinsky said, "A hate crimes law for gays would be very difficult to justify under the Brzonkala decision." Although anti-discrimination laws in the workplace are secure because they are seen as regulations of commercial activity, he said, "beyond the workplace, it's too hard to find the constitutional basis for federal regulation."

In the past, federal authorities have avoided prosecuting even sensational hate crimes unless they could find some link to interstate activity.

Reaction to Ruling Along Party Lines

The court's strict limit on federal authority also calls into question some environmental laws such as the Endangered Species Act. Some critics have suggested Congress has no power to protect a threatened animal or plant that lives in only one state and has no effect on interstate commerce.

Reaction to Monday's ruling split along party lines.

Democratic leaders and women's rights activists decried the decision as a step backward for the nation. Republicans and conservative activists praised the court for restraining federal authority.

President Clinton said he was "deeply disappointed" by the court's decision striking down a rape victim's right to bring a federal civil damages suit. He signed the bill into law as part of the 1994 crime control act. He noted, however, that federal prosecutors still can bring criminal charges against stalkers who cross state lines.

Sen. Joseph R. Biden Jr. (D-Del.), the law's sponsor, called the decision "extremely troublesome." In a phone interview, he said the conservative court is returning to the thinking of the "pre-New Deal era." Prior to 1937, the aggressively conservative court struck down federal measures such as minimum wage and child labor laws on the theory that they exceeded Congress' power.

"These folks are judicial activists," Biden said of Rehnquist's majority. "They are saying the federal courts are going to make these judgments, not Congress."

Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) said, "The restoration of federalism scrutiny in our federal courts is a welcome development in the law. The Constitution reserves to the states the 'ordinary administration of criminal and civil justice,' " he said, quoting Alexander Hamilton.

"This is a good day for the Constitution," added Michael Rosman, general counsel for the Center for Individual Rights. He represented Tony Morrison, the Virginia Tech football player who was sued. "The outcome indicates that even popular and well-intentioned laws cannot be sustained by political pressure alone," Rosman said.

In a sense, Monday's outcome comes as no surprise. The court has split into two factions on these issues.

Five members of the court--Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas--strongly support states' rights and limits on federal power.

The four dissenters take a nationalist view and say Congress has broad power to regulate in the national interest. They are Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

On Jan. 11, the same 5-4 split was on display when the court stripped the nation's five million state workers and public college professors of the right to sue their employers for age discrimination. Although the federal Age Discrimination Act allowed such suits, states have a "sovereign immunity" that shields them, the conservative majority said.

On the same day that ruling was announced, the court heard arguments in the combined cases of U.S. vs. Morrison, 99-5, and Brzonkala vs. Morrison. Monday's decision saw the same line-up.

Since the 1960s, many Americans may have assumed federal government has special power over matters of discrimination and civil rights. This is not so clear anymore. Under Rehnquist, the court has revived an older view of the Constitution and its separation of powers.

The original Constitution says Congress "shall have the power to regulate commerce . . . among the several states." Meanwhile, the 14th Amendment, added after the Civil War, says Congress can enforce the guarantee of "equal protection of laws" in the states.

Interstate Commerce an Issue in Ruling

Clinton administration lawyers cited both provisions as defenses of the Violence Against Women Act, but both were rejected.

The 14th Amendment prohibits discrimination by state officials only, Rehnquist said. The alleged rape in this case was a private act, and therefore is outside the territory covered by the 14th Amendment, he said.

The real debate focused on the reach of Congress' power under the Commerce Clause. For most of the 20th century, the court gave a liberal interpretation to this provision that allowed federal regulation of the workplace, the environment and civil rights.

The landmark Civil Rights Act of 1964, which barred discrimination against blacks in jobs, hotels and other public businesses, was upheld by the Supreme Court as a regulation of interstate commerce. But more recently, the Rehnquist majority has said it will not allow Congress to regulate virtually anything on the theory that it might affect commerce.

In 1995, the 5-4 majority struck down a law that made it a federal crime to have a gun near a school. Mere gun possession is not part of interstate commerce, Rehnquist said then in the case of U.S. vs. Lopez.

When considering the Violence Against Women Act, Congress tried too mightily to build a record to show that gender crimes affect interstate commerce. It held hearings and issued reports that estimated, for example, that gender-motivated violence costs the economy $5 billion to $10 billion per year. This includes everything from medical costs for injuries to battered women to jobs not taken by women for fear of crime.

But Rehnquist dismissed all this as far-fetched.

"Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity," he wrote. "Indeed, if Congress may regulate [this], it would be able to regulate murder or any other type of violence."

This expansion would not be faithful to the original Constitution, he said. There, "the Founders denied the National government and reposed in the States . . . the suppression of violent crime and vindication of its victims," he said.

Copyright 2000 Los Angeles Times

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