Rights of women v. states hits high court

Federalism case heard today may pivot on Justice O'Connor.

In the biggest moment of the current term, the US Supreme Court today takes up a case that pits women's rights - as defined by federal law - against states' rights.

The case will help determine how far the justices may go in redressing the balance of power between Washington and the states - a major thrust of the Rehnquist court. It will also help clarify the philosophy of a key swing vote on these important federalism issues: Justice Sandra Day O'Connor.

At issue is the Violence Against Women Act, passed by Congress in 1994. The law gives victims of gender-motivated violence the right to sue their attackers for money damages in federal court. The court will consider whether the issue falls under the purview of federal lawmakers or whether the law intrudes into areas reserved for state regulation.

As lawyers on both sides make their arguments today in the crimson-curtained courtroom, all eyes will be on Justice O'Connor, who many expect to cast the deciding vote. Indeed, the case may force her to choose between the principles of women's rights and federalism, both of which she has staunchly supported in the past.

The law's opponents say it does nothing less than violate the balance of federal and state power laid down in the Constitution by the Founding Fathers. Supporters, including attorneys general of 36 states, say the law is a civil-rights enactment that helps women overcome the bias of state and local law-enforcement officials who treat gender-based violence as a second-rate crime.

The high court is split on the issue, hence the spotlight on Justice O'Connor. If she sides with women's rights and upholds the law, it would mark a significant setback to the cause of federalism and states' rights, potentially undermining two important federalism rulings she helped to decide.

On the other hand, if she views the case through the prism of federalism, it would represent a defeat for efforts to bolster civil rights and women's rights. That, in turn, could make it harder for victims of gender-motivated violence to fight assailants by using federal law and federal courts.

"If the Supreme Court [strikes down the law], it would be a tremendous step backward, not only for women's rights but for civil rights generally," says Martha Davis of NOW Legal Defense and Education Fund, which is arguing in support of the law before the court.

To states' rights advocates, the case will test the resolve of the conservative wing of the Supreme Court to buttress two landmark decisions that limited congressional power when it was exercised at the states' expense.

The case follows action by the Fourth US Circuit Court of Appeals in Richmond, Va., which struck down the Violence Against Women Act on grounds it exceeded Congress's authority to enact legislation under the commerce clause and under equal-protection guarantees of the 14th Amendment.

In tone, the appeals-court decision reads like a revolutionary manifesto, a kind of legal call to arms to conservative judges. It begins: "We the People, distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves."

A basic question surrounding the case is whether the five justices who have voted in favor of states' rights in the past will use this case to further restrict national power.

But if the case has the ability to stir the emotions of conservatives, it also has the potential to raise the ire of civil rights and women's groups.

The case before the court involves a young college freshman, Christy Brzonkala, who says she was raped in 1994 in her Virginia Tech dormitory by two football players. She is seeking to use the Violence Against Women Act years later to recover damages from her alleged attackers.

The high court will focus its attention on two areas: the Commerce Clause and Section 5 of the 14th Amendment, which authorizes Congress to enact laws to force states to uphold due process and equal protection.

Challengers say the Violence Against Women Act is not related to interstate commerce, and thus Congress has no power to enact it. They also argue that Congress's power to make laws under the 14th Amendment covers only state action, not the action of private individuals such as rapists.

The law's supporters say violence against women has a major impact on interstate commerce. "Congress conducted extensive hearings that revealed that gender-motivated violence ... substantially affects interstate commerce by impeding the travel, employment, and other economic activities of its victims," writes US Solicitor General Seth Waxman in his brief to the court.

Mr. Waxman and others add that, under the 14th Amendment, Congress has enough flexibility to pass laws that help victims deal with the consequences of discrimination perpetuated by biased state enforcement of criminal laws.

"Congress had a reasonable basis to conclude that the states had purposefully discriminated against women in the operation of their justice system," says Norman Redlich, who filed a brief on behalf of several civil-rights groups.

Opponents say such an approach exceeds the reach of the 14th Amendment.

(c) Copyright 2000. The Christian Science Publishing Society

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