Brzonkala v. Virginia Polytechnic Institute and State University

Page 820

169 F.3d 820

Christy BRZONKALA, Plaintiff-Appellant, v. VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY;

Antonio J. Morrison; James Landale Crawford,

Defendants-Appellees,

and

Cornell D. Brown; William E. Landsidle, in his capacity as

Comptroller of the Commonwealth, Defendants.

Law Professors; Virginians Aligned Against Sexual Assault;

The Antidefamation League; Center for Women Policy Studies;

The DC Rape Crisis Center; Equal Rights Advocates; The

Georgetown University Law Center Sex Discrimination Clinic;

Jewish Women International; The National Alliance of Sexual

Assault Coalitions; The National Coalition Against Domestic

Violence; The National Coalition Against Sexual Assault;

The National Network to End Domestic Violence; National

Organization For Women; Northwest Women's Law Center; The

Pennsylvania Coalition Against Domestic Violence,

Incorporated; Virginia National Organization for Women;

Virginia Now Legal Defense and Education Fund, Incorporated;

Women Employed; Women's Law Project; Women's Legal

Defense Fund; Independent Women's Forum; Women's Freedom

Network, Amici Curiae.

United States of America, Intervenor-Appellant, and Christy Brzonkala, Plaintiff, v. Antonio J. Morrison; James Landale Crawford, Defendants-Appellees, and Virginia Polytechnic Institute and State University;

Cornell D. Brown; William E. Landsidle, in his

capacity as Comptroller of the

Commonwealth, Defendants.

Law Professors; Virginians Aligned Against Sexual Assault;

The Antidefamation League; Center for Women Policy Studies;

2 The DC Rape Crisis Center; Equal Rights Advocates; The

Georgetown University Law Center Sex Discrimination Clinic;

Jewish Women International; The National Alliance of Sexual

Assault Coalitions; The National Coalition Against Domestic

Violence; The National Coalition Against Sexual Assault;

The National Network to End Domestic Violence; National

Organization for Women; Northwest Women's Law Center; The

Pennsylvania Coalition Against Domestic Violence,

Incorporated; Virginia National Organization for Women;

Virginia Now Legal Defense and Education Fund, Incorporated;

Women Employed; Women's Law Project; Women's Legal

Defense Fund; Independent Women's Forum; Women's Freedom

Network, Amici Curiae.

Nos. 96-1814, 96-2316.

United States Court of Appeals Fourth Circuit.

Argued March 3, 1998.

Decided March 5, 1999.

ARGUED: Mark Bernard Stern, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.; Julie Goldscheid, NOW Legal Defense & Education Fund, New York, New York; Deborah L. Brake, National Women's Law Center, Washington, D.C., for Appellants. William Henry Hurd, Senior to the Attorney General, Office of the Attorney General, Richmond, Virginia; Michael E. Rosman, Center for Individual Rights, Washington, D.C., for Appellees. ON BRIEF: Frank W. Hunger, Assistant Attorney General, Robert P. Crouch, Jr., United States Attorney, Stephen W. Preston, Deputy Assistant Attorney General, Alisa B. Klein, Anne M. Lobell, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Appellant United States; Martha F. Davis, NOW Legal Defense & Education Fund, New York, New York; Neena K. Chaudry, Marcia D. Greenberger, National Women's Law Center, Washington, D.C.; Eileen Wagner, Richmond, Virginia, for Appellant Brzonkala. Mark L. Earley, Attorney General of Virginia, William E. Thro, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia; Jerry D. Cain, Special Assistant Attorney General, Kay Heidbreder, Special Assistant Attorney General, Virginia Polytechnic Institute and State University, Blacksburg, Virginia, for Appellee VPI. Hans F. Bader, Center for Individual Rights, Washington, D.C.; W. David Paxton, M. Christina Floyd, Gentry, Locke, Rakes & Moore, Roanoke, Virginia, for Appellee Morrison; Joseph Graham Painter, Jr., Painter, Kratman, Swindell & Crenshaw, Blacksburg, Virginia, for Appellee Crawford. Sara D. Schotland, Amy W. Schulman, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for Amici Curiae Law Professors. Janice Redinger, Virginians Aligned Against Sexual Assault, Charlottesville, Virginia; Minna J. Kotkin, Sara Kay, Federal Litigation Program, BLS Legal Services Corporation, Brooklyn, New York, for Amici Curiae Virginians Aligned, et al. E. Duncan Getchell, Jr., J. William Boland, Robert L. Hodges, McGuire, Woods, Battle & Boothe, L.L.P., Richmond, Virginia, for Amicus Curiae Independent Women's Forum. Michael D. Weiss, Lawson, Weiss & Danziger, Houston, Texas, for Amicus Curiae Women's Freedom Network.

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKES, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Chief Judge WILKINSON and Judges WIDENER, WILKES, NIEMEYER, HAMILTON, and WILLIAMS joined. Chief Judge WILKINSON wrote a concurring opinion. Judge NIEMEYER wrote a concurring opinion. Judge DIANA GRIBBON MOTZ wrote a dissenting opinion, in which Judges MURNAGHAN, ERVIN, and MICHAEL joined.

OPINION

LUTTIG, Circuit Judge:

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. Thus, though the authority conferred upon the federal government be broad, it is an authority constrained by no less a power than that of the People themselves. "[T]hat these limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803). These simple truths of power bestowed and power withheld under the Constitution have never been more relevant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient.

These foundational principles of our constitutional government dictate resolution of the matter before us. For we address here a congressional statute, Subtitle C of the Violence Against Women Act, 42 U.S.C. § 13981, that federally punishes noncommercial intrastate violence, but is defended under Congress' power "[t]o regulate commerce ... among the several States," U.S. Const. art. I, § 8, cl. 3, and that punishes private conduct, but is defended under Congress' power "to enforce, by appropriate legislation" the Fourteenth Amendment guarantee that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws," U.S. Const. amend. XIV, §§ 1, 5. 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. As even the United States and appellant Brzonkala appear resignedly to recognize, the Supreme Court's recent decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), which forcefully reaffirmed these most basic of constitutional principles, all but preordained as much. Enacted by the Congress assertedly in exercise of its powers both to regulate interstate commerce and to enforce the prohibitions of the Fourteenth Amendment, section 13981 was initially defended by appellants in the wake of United States v. Lopez primarily as a valid exercise, not of Congress' Commerce Clause power, but of Congress' power under Section 5 to enforce the Fourteenth Amendment's restrictions on the States--notwithstanding the statute's regulation of conduct purely private. Confronted by the Supreme Court's intervening decision in City of Boerne v. Flores during this appeal, the appellants retreated to defend the statute primarily as an exercise, not of Congress' power under Section 5 of the Fourteenth Amendment, but of its power under the Commerce Clause--notwithstanding the statute's regulation of conduct neither commercial nor interstate. And, finally, in the end, appellants are forced by these two plainly controlling decisions to defend the statute on little more than wistful assertions that United States v. Lopez is an aberration of no significance and that the established precedents upon which City of Boerne v. Flores rested--United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883), and the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883)--should be disregarded as insufficiently "modern" to define any longer the reach of Congress' power under the Fourteenth Amendment.

Appreciating the precariousness in which appellants find themselves by virtue of the intervening decisions in Lopez and City of Boerne, but accepting these recent and binding authorities as the considered judgments of a Supreme Court that has incrementally, but jealously, enforced the structural limits on congressional power that inhere in Our Federalism, see Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 2376-78, 138 L.Ed.2d 914 (1997); City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 2162, 2168, 2172, 138 L.Ed.2d 624 (1997); Seminole Tribe v. Florida, 517 U.S. 44, 64-65, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); United States v. Lopez, 514 U.S. 549, 552-53, 556-57, 567-68, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); New York v. United States, 505 U.S. 144, 155-57, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), we hold today that section 13981 exceeds Congress' power under both the Commerce Clause of Article I, Section 8, and the Enforcement Clause of Section 5 of the Fourteenth Amendment.

To otherwise hold would require not only that we, as the dissent would do, disclaim all responsibility to "determine whether the Congress has exceeded limits allowable in reason for the judgment which it has exercised," Polish Nat'l Alliance v. NLRB, 322 U.S. 643, 650, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944), and embrace...