by VICTORIA F. NOURSE
There are many reasons to fight for the Equal Rights Amendment. Brzonkala’s case offers a particularly poignant one.
When she was a college freshman in 1994, Christy Brzonkala says she was gang-raped by two students on the Virginia Tech campus in Blacksburg, Va., 30 minutes after she met them.
Months after the alleged rape, she says one of her assailants announced in the dorm’s dining room that he “like[d] to get girls drunk and fuck the shit out of them.” This same man also admitted at the school hearing that he had sex with Brzonkala (he claimed it was consensual, though she’d said no twice)—but ultimately the school didn’t discipline him. The other alleged assailant was never prosecuted at all.
Distraught, Brzonkala attempted suicide and then dropped out of school. In 1995, Virginia Tech allowed the man who’d been prosecuted (both were athletes on the football team) to return to class.
After a Richmond grand jury refused to indict her alleged assailants, Brzonkala turned to a law newly passed in 1994 called the Violence Against Women Act. That law allowed survivors a civil rights remedy to sue their assailants for gender-based violence in civil court—to achieve some measure of legal accountability when officials disbelieved the allegations or took no action.
Brzonkala’s alleged assailants argued that the new law was unconstitutional, that Congress had no power to pass it. Almost every court to hear their constitutional claim rejected it until the case reached the Supreme Court where, in 2000, women’s right to equal protection from violence died in the case United States v. Morrison. (Antonio Morrison was one of Brzonkala’s alleged rapists.)
There are many reasons to fight for an Equal Rights Amendment to the Constitution. But Brzonkala’s case offers a particularly poignant one. As the late Justice Antonin Scalia once explained: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.
“Nobody ever voted for that,” the famously conservative justice said, adding, “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.” But here’s the rub: That might work if Congress had the constitutional power to enact laws against gender violence. The Morrison decision holds that the Constitution bars Congress from passing such a law. That could all change with the adoption of the Equal Rights Amendment.
The Supreme Court v. VAWA
The Violence Against Women Act, passed 27 years ago, did many things—but its sponsor, then-Sen. Joe Biden (whom I worked for at the time), believed that the civil rights remedy was the heart of it.
To see how big a deal that was, consider Harvey Weinstein, who was sentenced to 23 years in prison for rape and sexual assault, and was alleged to have assaulted dozens of women over decades. No federal law allows his victims to sue him for gender-based violence.
Title VII of the Civil Rights Act, which prohibits sex discrimination in employment, though well-known, is quite limited. It gives some people a right to sue for sexual harassment—but only in some situations. If you are not an employee, you have no right under the law. (Many of Weinstein’s victims, for example, were looking for jobs—they did not have them.) And even when the survivors are employees, the law does not cover sexual assault that occurs outside of the workplace (a much larger problem) and allows lawsuits only against employers with more than 15 workers.
The latter rule leads to tremendous racial and age disparities: Women who are “at will” workers (think: restaurant servers) or work in small businesses (think: childcare) are disproportionately young and women of color. They are not covered at all by Title VII and can be harassed and assaulted with impunity—their principal recourse a criminal justice system that has traditionally ignored these wrongs. There was, and still is, a very big gap in the law of gender-based violence. VAWA’s civil rights remedy aimed to close it.
But the Supreme Court ruled in Morrison that Congress had no power to protect women from violence because crime is a matter for the states. It did not appear to matter to the justices that state criminal prosecutions for sexual assault were rare, then and now. The Morrison decision announced grand principles of federalism (deference to the states), but its history carried the stench of racism and judicial power politics. Its author, Chief Justice William Rehnquist, had spearheaded a lobbying effort against VAWA’s civil rights remedy trying to prevent it from passing.