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Constitutional challenge to VAWA raises ire.

In 1995, as Eileen Wagner listened to the facts of Christy Brzonkala's rape, she knew the case would test the constitutionality of the civil rights remedy in the newly enacted Violence Against Women Act (VAWA VAWA Violence Against Women Act of 1994 (US) ) and eventually would work its way to the Supreme Court.

"She had the perfect set of facts," said Wagner, a Richmond, Virginia, attorney specializing in cases dealing with colleges and universities. And enough "fall-back remedies" at her disposal to pursue other legal recourse should the VAWA claim fail. Brzonkala's suit claimed that in September 1994 two Virginia Polytechnic Institute football players raped her three times in the coed dorm they shared. The suit alleged the university had committed a breach of its contract to provide a safe environment and had created a hostile environment under Title IX, Wagner said.

In March, reversing its own three-judge panel opinion, the Fourth Circuit ruled, 7-4, that the VAWA civil rights remedy is unconstitutional. "Such a statute, we are constrained to conclude, simply cannot be reconciled with the principles of limited federal government upon which this nation is founded," wrote Fourth Circuit Judge J. Michael Luttig J. Michael Luttig (born in Tyler, Texas, June 13, 1954) is an American lawyer and a former federal judge. Education and early work
Luttig graduated from Washington and Lee University in 1976.
. (Brzonkala v. Virginia Polytechnic Institute & State University, Nos. 96-2316, 96-1814, 1999 WL 111891 (4th Cir. Mar. 5, 1999).)

Wagner's initial hunch about the Supreme Court is closer to reality. Both she and her co-appellant, the NOW Legal Education and Defense Fund, are preparing to file certiorari certiorari

In law, a writ issued by a superior court for the reexamination of an action of a lower court. The writ of certiorari was originally a writ from England's Court of Queen's (King's) Bench to the judges of an inferior court; it was later expanded to include writs

Brzonkala's case may be heard by the High Court because the opinion marks the first time a federal circuit court has struck down VAWA's groundbreaking civil rights remedy. Twelve other federal district courts have upheld the provision, which entitles victims of gender-motivated felonies to sue for compensatory, punitive, declaratory DECLARATORY. Something which explains, or ascertains what before was uncertain or doubtful; as a declaratory statute, which is one passed to put an end to a doubt as to what the law is, and which declares what it is, and what it has been. 1 Bl. Com. 86. , injunctive, or any other court-approved relief in a federal court, without pursuing a criminal action. (42 U.S. C.A. [sections] 13981.)

The remedy is part of a comprehensive statute enacted in 1994 to address the problems of domestic violence and sexual assault. The law's passage was the culmination of four years of congressional hearings in which states acknowledged they inadequately prevented gender-motivated violence. Statistics supported the contention by VAWA's proponents that women who are beaten or stalked by boyfriends or husbands shop and work less than other women. Congress determined that lower sales and work absenteeism affected interstate commerce interstate commerce

In the U.S., any commercial transaction or traffic that crosses state boundaries or that involves more than one state. Government regulation of interstate commerce is founded on the commerce clause of the Constitution (Article I, section 8), which
 and used the Commerce Clause to promulgate To officially announce, to publish, to make known to the public; to formally announce a statute or a decision by a court.  VAWA.

But the Fourth Circuit said Congress exceeded its constitutional powers when it enacted VAWA's civil remedy CIVIL REMEDY, practice. This term is used in opposition to the remedy given by indictment in a criminal case, and signifies the remedy which the law gives to the party against the offender.
 pursuant to its authority under the Commerce Clause and [sections]5 of the Fourteenth Amendment--the Enforcement Clause.

The court found no nexus between commerce and gender-motivated violence. Gender-motivated violent acts are a private issue, the court said, and the inherent nature of violence is not economic. The opinion is based on federalism principles developed by the Supreme Court in U.S.V. Lopez (514 U.S. 549 (1995)) and City of Boerne v. Flores City of Boerne v. Flores, 521 U.S. 507 (1997), was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment.  (521 U.S. 507 (1997)).

In Lopez, the Supreme Court disabled the Gun-Free School Zones Act, finding that gun possession near schools did not significantly affect interstate commerce. In Boerne v. Flores Flores, town, Guatemala
Flores (flōrəs), town (1990 est. pop. 2,200), capital of Petén department, N Guatemala. Flores was built on an island in the southern part of Lake Petén Itzá and on the site of the
, the Court found the Religious Freedom Restoration Act The Religious Freedom Restoration Act (, also known as RFRA) is a 1993 United States federal law aimed at preventing laws which substantially burden a person's free exercise of their religion.  exceeded Congress's power under [sections] 5 of the Fourteenth Amendment Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections. Section 1

Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens
 because it attempted to regulate private conduct.

Similarly, the circuit found gender-motivated violence is a private act and cannot be regulated by the government.

"In the most specific way, the [Fourth Circuit] opinion is about an important tool to deal with violence against women. In a broader sense, it's about what Congress can do to solve social problems," said Erwin Chemerinsky, a constitutional scholarwith the University of Southern California The U.S. News & World Report ranked USC 27th among all universities in the United States in its 2008 ranking of "America's Best Colleges", also designating it as one of the "most selective universities" for admitting 8,634 of the almost 34,000 who applied for freshman admission  Law Center.

Technically, the opinion affects potential filers in Maryland, North Carolina North Carolina, state in the SE United States. It is bordered by the Atlantic Ocean (E), South Carolina and Georgia (S), Tennessee (W), and Virginia (N). Facts and Figures

Area, 52,586 sq mi (136,198 sq km). Pop.
, South Carolina South Carolina, state of the SE United States. It is bordered by North Carolina (N), the Atlantic Ocean (SE), and Georgia (SW). Facts and Figures

Area, 31,055 sq mi (80,432 sq km). Pop. (2000) 4,012,012, a 15.
, Virginia, and West Virginia. Politically, however, the opinion has riled rile  
tr.v. riled, ril·ing, riles
1. To stir to anger. See Synonyms at annoy.

2. To stir up (liquid); roil.

[Variant of roil.]

Adj. 1.
 the statute's proponents.

"It's not appropriate for the court to substitute its view against the legislative findings of Congress. This is an important civil remedy to deter violence," said Martha Davis, legal director of NOW's Legal Defense and Education Fund.

"The Fourth Circuit, frankly, is wrong," said Roxanne Barton Conlin, a former ATLA ATLA Association of Trial Lawyers of America
ATLA American Theological Library Association
ATLA American Trial Lawyers Association
ATLA Air Transport Licensing Authority (Hong Kong)
ATLA Avatar: The Last Airbender
 president who practices in Des Moines, Iowa “Des Moines” redirects here. For other uses, see Des Moines (disambiguation).
Des Moines (pronounced /dɪˈmɔɪn/ in English,
. "In the Gun-Free School Zones Act, there was no investigation. There were no findings by Congress" that guns in schools have an impact on interstate commerce. VAWA established the economic consequences of gender-motivated violence, she said.

Wagner found the Fourth Circuit's logic to be faulty. "Congress can pass laws regulating a Michigan farmer's corn used as fodder for animals. It never leaves the farm. But when more than half the population is subjected to the most disgusting acts of violence, the court said that Congress can't protect them?"

Chemerinsky characterized the Fourth Circuit as a conservative court. Wagner said the circuit's two vacant judgeships also influenced the opinion. The opinion is a stunning contrast to previous federal rulings, and Davis said he is confident that it will not influence future federal circuit decisions.

Prior to the Fourth Circuit's opinion, 11 federal district courts had upheld VAWA's constitutionality because they found Congress had enacted the legislation on a sufficient amount of evidence submitted at the hearings.

Less than a month after the Fourth Circuit rendered its opinion, a federal district judge in New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of
 agreed with the 11 other district courts and admonished the Fourth Circuit for its finding.

"A federal court should pause long and hard before declaring unconstitutional a statutory provision that is the product of such lengthy inquiry and detailed findings by Congress itself consisting of the democratically elected representatives of the several states," wrote Judge Jed Rakoff. (Ericson v. Syracuse University, 98 Civ. 3435 JSR JSR Java Specification Request
JSR J Sargeant Reynolds Community College (Virginia)
JSR Journal of Sedimentary Research
JSR Jump to Subroutine (6502 processor instruction) 
, 1999 WL 212684 (S.D.N.Y. Apr. 13, 1999).)

Advocates say the civil rights remedy leveled the playing field for victims of domestic violence.

"Violence against women is a hate crime. The act is an important step in women's civil rights and the prevention of domestic violence," said Conlin. Before VAWA, she used civil claims such as assault, battery, or negligent or potential infliction in·flic·tion  
1. The act or process of imposing or meting out something unpleasant.

2. Something, such as punishment, that is inflicted.

Noun 1.
 of emotional distress, but the cases just "limped along."

Claims have concurrent state and federal court jurisdiction, but Conlin prefers to file the claim in federal court, especially for small-town victims. Filing in federal court avoids a husband's or boyfriend's political influence or connection with the local court, she said.

Conlin acknowledged VAWA is not widely used, which she attributed to unawareness of the statute or to attorneys' reluctance to use it because it is a developing area of law.

She recommended that attorneys filing VAWA actions attach other claims to the suit and anticipate the defense raising a constitutional challenge.

Once a challenge is raised, the Department of Justice and NOW automatically provide technical aid to plaintiff lawyers. In the Brzonkala case, both helped Wagner argue the issue before the Fourth Circuit.

If the Supreme Court agrees to hear Brzonkala's case, it will be heard by nine justices who have issued recent decisions striking down federal laws. Chemerinsky said the most significant trend in the decisions by Chief Justice William Rehnquist's Court is protecting state sovereignty.

No one can predict what the Supreme Court will do, but Chemerinsky said Brzonkala's case offers the Court an opportunity to clarify its position on Lopez and provide direction on how far Congress can go when it passes laws aimed at solving social problems.

Regardless of the Supreme Court's decision on hearing Bronzkala's appeal, Wagner foresees plans for improving VAWA. If the Court denies their petition, she intends to go back to Congress to request some changes. She believes plaintiffs would gain the freedom to name third-party defendants if the word "felony" were removed from the statute.

If the Court grants the hearing and subsequently issues an opinion that supports VAWA's civil rights remedy, Wagner said, "then others will use it, and case law will help us get through the rough spots."
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Author:Gelhaus, Lisa
Geographic Code:1USA
Date:Jun 1, 1999
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