Let's Make a Federal Case Out of It

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Does gender-based violence affect interstate commerce? Sounds like a silly question, but it’s at the heart of a rape case that just made the Supreme Court docket. During its 1999-2000 session, the Court will decide the constitutionality of provisions in the Violence Against Women Act that allow women who are attacked or raped to sue their attackers in Federal civil court. The case under consideration was brought by a Virginia Tech student who charges that two members of the football team raped her during her freshman year. So why would a case like this fall under the aegis of interstate commerce? Because, explains TIME senior reporter Alain Sanders, according to the 1994 act, when women are attacked or brutalized, their prospective absence from work or school interferes with the flow of interstate commerce, pushing the case neatly into federal jurisdiction.

The defendants in the Virginia rape case are charged under the Violence Against Women Act, but contend that the commerce clause is not a sound basis for the act, and therefore that the case against them is invalid. The court’s deliberations will be watched carefully by lawmakers, because if the commerce clause is rejected as a viable basis for anti-discrimination law, it could affect not only the Violence Against Women Act but also countless other civil rights laws. “Every major civil rights law on the federal books was enacted under the interstate commerce clause of the Constitution,” says Sanders. “Our anti-discrimination laws are not based on liberty or equality, but on commerce.” The first civil rights laws were enacted under the assumption that discrimination in housing, or in restaurants or hotels, interfered with interstate commerce.

The sweeping umbrella of the commerce clause may now be facing a intensive dissection, says Sanders. “This court has indicated that it’s willing to take a look at these commerce-based laws, and that it may be willing to impose some limits.” Still, no one is predicting that a ruling for the defendants would radically alter civil rights laws, and despite the Supreme Court’s history of reviewing its past decisions, it may examine the anti-discrimination laws and decide to leave them alone. “Sometimes,” explains Sanders, “the Justices will let certain rulings stand, if they feel that the resultant laws are deeply ingrained and fundamental to a system.”