Untitled Document

Brzonkala v. Virginia Polytechnic, 169 F.3d 820 (4th Cir. 1999).

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

March 3, 1998, Argued
March 5, 1999, Decided

SUBSEQUENT HISTORY:
Certiorari Granted September 28, 1999, Reported at: 1999 U.S. LEXIS 4744, 1999 U.S. LEXIS 4745.

DISPOSITION: AFFIRMED.

JUDGES: Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges. Judge Luttig wrote the opinion, in which Chief Judge Wilkinson and Judges Widener, Wilkins, Niemeyer, Hamilton, and Williams joined. Chief Judge Wilkinson wrote a concurring opinion. Judge Niemeyer wrote a concurring opinion. Judge Motz wrote a dissenting opinion, in which Judges Murnaghan, Ervin, and Michael joined.

OPINIONBY: LUTTIG

OPINION: [*825] OPINION

LUTTIG, Circuit Judge:

We the People, distrustful of power, and believing that government limited and dispersed [*826] 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. . . . These simple truths of [**4] 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 "to 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 "no 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.

. . . .

VAWA establishes, in the single section at issue before us today, a federal substantive right in "all persons within the United States . . . to be free from crimes of violence motivated by gender." 42 U.S.C. § 13981(b). See infra Part II. And, to enforce this substantive right, section 13981(c) creates a private cause of action against any "person . . . who commits a crime of violence motivated by gender," 42 U.S.C. § 13981(c), and allows any party injured by such a crime to obtain compensatory damages, punitive damages, and injunctive, declaratory, or other appropriate [**10] relief, id.

II.

III.

After the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), but before the Court's decision two years ago in City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997), the appellants defended section 13981 primarily as a valid exercise of Congress' enforcement authority under Section 5 of the Fourteenth Amendment. Since the decision in City of Boerne, the appellants have resorted to defending the section primarily as a valid exercise of Congress' power under the Commerce Clause. Therefore, we address ourselves first to this defense of the statute.

In United States v. Lopez, the Supreme Court held that Congress had exceeded its power to regulate interstate commerce in enacting the Gun-Free School Zones Act of 1990 ("GFSZA"), 18 U.S.C. § 922(q). In so holding, the Court reaffirmed that, although the Commerce Clause represents a [**21] broad grant of federal authority, that authority is not plenary, but subject to outer limits. See, e.g., Lopez, 514 U.S. at 556-57, 567-68. . . . Under the principles articulated by the Court in Lopez, it is evident that 42 U.S.C. § 13981, like the Gun-Free School Zones Act, does not regulate an activity sufficiently related to interstate commerce to fall even within the broad power of Congress under the Commerce Clause.

In demarcating the limits of congressional power to regulate activities that do not themselves constitute interstate commerce, the Court in Lopez made clear that such power does not extend to the regulation of activities that merely have some relationship with or effect upon interstate commerce, but, rather, extends [**22] only, as is relevant here, to those activities "having a substantial relation [*831] to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce." Lopez, 514 U.S. at 558-59 (emphases added) . . . .

Furthermore, the Court made explicit that whether an activity "substantially affects" interstate commerce such that it may be regulated under the Commerce Clause "is ultimately a judicial rather than a legislative question." Id. at 557 n.2 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964) ( Black, J., concurring)) . . . .

In clarifying [**24] the content of this legal test, the Court specifically identified two types of laws that it had upheld as regulations of activities that substantially affect interstate commerce: (1) "regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce," Lopez, 514 U.S. at 561 (majority), and (2) regulations that include a jurisdictional element to ensure, "through case-by-case inquiry," that each specific application of the regulation involves activity that in fact affects interstate commerce, id.

That the Court's focus on the failure of the Gun-Free School Zones Act either to regulate economic activity or to include a jurisdictional element was intended to demarcate the outer limits-- or, at the very least, the presumptive outer limits, see infra Part III.C -- of congressional power under the substantially affects test is explicitly confirmed throughout the majority and concurring opinions. . . .

B.

In contrast to the statutes that the Supreme Court has previously upheld as permissible regulations under the substantially affects test, see Lopez, 514 U.S. at 560; id. at 580 ( Kennedy, J., concurring), but analogously to the Gun-Free School Zones Act, see id. at 551 (majority), section 13981 neither regulates an economic activity nor contains a jurisdictional element. Accordingly, it cannot be sustained on the authority of Lopez, nor any of the Court's previous Commerce Clause holdings, as a constitutional exercise of Congress' power to regulate interstate commerce.

[*834] 1.

Appellants do not contend that section 13981 regulates economic activity. Nor could they. The statute does not regulate the manufacture, transport, or sale of goods, the provision of services, or any other sort of commercial transaction. Rather, it regulates violent crime motivated by gender animus. Not only is such conduct clearly not commercial, it is not even economic in any meaningful sense. While some violent crimes, such as robbery, may be economically motivated and thus at least arguably "economic" in a loose sense, section 13981 is not directed toward such crimes, but instead is expressly [**31] limited to "crimes of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." . . . . The statute thus explicitly excludes from its purview those violent crimes most likely to have an economic aspect -- crimes arising solely from economic motives-- and instead addresses violent crime arising from the irrational motive of gender animus, a type of crime relatively unlikely to have any economic character at all.

. . . .

Not only is violent crime motivated by gender animus not itself even arguably commercial or economic, it also lacks a meaningful connection with any particular, identifiable economic enterprise or transaction. . . . Furthermore, unlike guns in school zones, violence arising from gender animus lacks even a meaningful connection with any specific activity that might arguably be considered economic or commercial in the loosest sense. . . .

. . . . section 13981 itself does not regulate even arguably economic activity.

[*836] It follows, then, that section 13981, even more clearly than the Gun-Free School Zones Act struck down in Lopez, does not fall "within the fair ambit of the Court's practical conception of commercial regulation," Lopez, 514 U.S. at 573-74 ( Kennedy, J., concurring), but is, rather, a "statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms," Lopez, 514 U.S. at 561 (majority). To hold otherwise would divest the words 'commerce' and 'economic' of any real meaning. Cf. id. at 565 (rejecting definition of "commercial" activity broad enough to encompass the operation of schools as "lacking any real limits because, depending on the level of generality, any activity can be looked upon as commercial"). Accordingly, section 13981 cannot be sustained on the authority of cases such as Wickard, which have upheld "regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Id. at 561.

Similarly, and as appellants concede, section 13981 does not have an "express jurisdictional [**40] element which might limit its reach to a discrete set of [gender-motivated violent crimes] that additionally have an explicit connection with or effect on interstate commerce." Id. at 562. . . .

Because section 13981 neither regulates an economic activity nor includes a jurisdictional element, it cannot be upheld on the authority of Lopez or any other Supreme Court holding demarcating the outer limits of Congress' power under the substantially affects test. . . .

[*837] C.

. . . . Lopez affirms that we must evaluate carefully the implications of our holdings upon our federal system of government and that we may not find an activity sufficiently related to interstate commerce to satisfy the substantially affects test in reliance upon arguments which, if accepted, would eliminate all limits on federal power and leave us "hard pressed to posit any activity by an individual that Congress is without power to regulate." Lopez, 514 U.S. at 564; see also id. at 567 (admonishing that courts are not to "pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States"). This is so especially when the regulated activity falls within an area of the law "where States historically have been sovereign," id. at 564, and countenance of the asserted federal power would blur "the boundaries between the spheres of federal and state authority" and obscure "political responsibility," [**44] id. at 577 ( Kennedy, J. concurring).

. . . .

We could perhaps reconcile with these "first principles" of federalism a holding that Congress may regulate, even in the absence of jurisdictional elements, noneconomic activities that are related to interstate commerce in a manner that is clear, relatively direct, and distinct from the type of relationship that can be hypothesized to exist between every significant activity and interstate commerce. See, e.g., United States v. Bird, 124 F.3d 667, 677 n.11 (5th Cir. 1997) . . . .

In this case, however, we can discern no such distinct nexus between violence motivated by gender animus and interstate commerce. Indeed, to sustain section 13981 as a constitutional exercise of the Commerce power, not only would we have to hold that congressional power under the substantially affects test extends to the regulation of noneconomic activities in the absence of jurisdictional elements, but we would also have to conclude that violence motivated by gender animus substantially affects interstate commerce by relying on arguments that lack any principled limitations and would, if accepted, convert the power to regulate interstate commerce into a general police power.

Echoing the government's arguments in Lopez, the appellants argue that violence motivated by gender animus imposes medical and legal costs upon its victims; discourages those who fear such violence from traveling, working, or transacting business at times or in places that they consider unsafe (thereby deterring some interstate travel, employment, and transactions); and, as a result, inhibits the productivity of its actual or potential [**47] victims and decreases the supply and demand for interstate products. See Br. of Appellant Brzonkala at 37; cf. Supp. Br. of Appellant Brzonkala at 3 (noting effects of gender-motivated violence "on employment, health care, housing, criminal justice, interstate travel and consumer spending"). These arguments closely resemble, and are functionally equivalent to, the arguments advanced by the government in Lopez:

. . . . As in Lopez, appellants rely in essence on the costs of violent crime (including the deterrence of interstate travel and other similar interstate activities) and on decreased national productivity (including reduced employment, production, and demand), both of which ultimately affect the national economy, and presumably interstate commerce as well. But as the arguments are the same, so also does the Supreme Court's categorical rejection in Lopez of such attenuated links to interstate commerce again control:

We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories [**49] that the Government presents in support of [the GFSZA], it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.
Id. at 564 (citation omitted); see also id. at 600 [*839] ( Thomas, J., concurring) ("When asked at oral argument if there were any limits to the Commerce Clause, the government was at a loss for words."). n8

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n8 We reject Brzonkala's contention that the link here is more direct than in Lopez because section 13981 regulates actual violence rather than the possession of guns, which could, but would not necessarily, lead to violence. See Br. of Appellant Brzonkala at 38. As is apparent from their arguments, however, many of the economic effects of gender-motivated violence upon which the appellants rely arise, as in Lopez, not from actual violence, but rather from the fear of such violence. And, unlike in Lopez, in which the potential violence threatened education, a specific enterprise with clear links to the economy, see Lopez, 514 U.S. at 624 ( Breyer, J., dissenting) ("The immediacy of the connection between education and the national economic well-being is documented by scholars and accepted by society at large in a way and to a degree that may not hold true for other social institutions. It must surely be the rare case, then, that a statute strikes at conduct that (when considered in the abstract) seems so removed from commerce, but which (practically speaking) has so significant an impact upon commerce."), gender-motivated violence affects no such specific enterprise. Thus, the manner in which any given act of gender-motivated violence affects the economy will depend on the specific circumstances of its victim. It is clear that here, as in Lopez, the relationship between the regulated conduct and interstate commerce is attenuated, and that any slight difference in the number of "steps" in the relationship is both artificial and insignificant.

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It is unsurprising that appellants must resort to such arguments. Just as it is impossible to link violence motivated by gender animus with any particular, identifiable economic transaction or enterprise, see supra Part III.B.1, it is similarly impossible to link such violence with a particular interstate market or with any specific obstruction of interstate commerce. Cf. Hoffman, 126 F.3d at 587 (noting close and direct relationship between obstruction of abortion clinic entrances and the interstate commercial market in reproductive health care services); Leshuk, 65 F.3d at 1112 (noting relationship between the manufacture of marijuana and the interstate market in illegal drugs). Rather, to the extent violence motivated by gender animus affects interstate commerce, it does so only in the same way that any other significant problem does. Like violence in schools, violent crime generally, and many other less visible though still significant problems, violent crime motivated by gender animus undoubtedly imposes costs on, and decreases the productivity of, its victims. As with other such problems, to the extent violent crime motivated by gender animus is widespread, [**51] these costs and productivity losses in the aggregate will ultimately, though indirectly, affect the national economy. Cf., e.g., Carol Krucoff, Get Moving, Wash. Post, Aug. 12, 1997, Health Section, at 12 (quoting director of Center for Disease Control as predicting annual savings of $ 4 billion in medical costs if only one-fourth of sedentary people were to exercise); 140 Cong. Rec. S14211 (1994) (statement of Sen. Hatfield) (estimating annual cost of accidents, medical problems, and reduced productivity, due to insomnia at between $ 92.5 and $ 107.5 billion). And, presumably, any adverse effect on the national economy will eventually also affect interstate commerce.

However, though the Supreme Court has, in cases such as Wickard, relied on relatively sweeping and permissive reasoning of this kind -- including looking to the aggregate effects of entire classes of activities and indulging in attenuated chains of inferences -- to find that intrastate economic activity substantially affects interstate commerce, Lopez clearly forecloses either reliance upon such authority or application of such analysis to sustain congressional regulation of noneconomic activities [**52] such as the conduct reached by section 13981. . . . To extend such reasoning beyond the context of statutes regulating economic activities and uphold a statute regulating noneconomic activity merely because that activity, in the aggregate, has an attenuated, though real, effect on the economy, and therefore presumably on interstate commerce, would be effectively to remove all limits on federal authority, and to render unto Congress a police power impermissible under our Constitution. See, e.g., id. at 564. n9

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n9 Brzonkala selectively quotes from our opinion in Hoffman to support her argument that Congress may regulate violence motivated by gender animus, despite its noneconomic character, solely because of its ultimate economic effects, see Supp. Br. of Appellant Brzonkala at 4. That case, however, does not support her position. Compare id. (stating that this court has upheld regulation of an activity that "was 'closely connected with, and had a direct and profound effect on, the interstate commercial market.'") (quoting Hoffman, 126 F.3d at 586-87), with Hoffman, 126 F.3d at 587 (explaining that regulated activity "is closely connected with, and has a direct and profound effect on, the interstate commercial market in reproductive health care services" (emphasis added)). It is plain that we did not uphold the statute in Hoffman because the regulated conduct affected the national economy, but rather because it directly affected a specific interstate market and was also "closely and directly connected with an economic activity." Id.

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This case, in fact, draws into sharp relief the sweeping implications for our federal system of government that would follow were we, in reliance on such reasoning, to extend congressional power under the substantially affects test to the regulation of noneconomic conduct remote from interstate commerce. For here, not only could the logic of the arguments upon which the appellants must rely justify congressional regulation of any significant activity, but the regulation in support of which these arguments are marshaled also intrudes upon areas of the law "to which States lay claim by right of history and expertise." Id. at 583 ( Kennedy, J., concurring). Thus, in this case, concerns of federalism, far from hypothetical, are immediate and concrete. First, although 42 U.S.C. § 13981(c) provides a civil remedy, the underlying conduct to which the remedy attaches is violent crime, see id. § 13981(d)(2), conduct that has traditionally been regulated by the States through their criminal codes and laws of intentional torts. . . . [T]his federal involvement will inescapably lead to changes in the allocation of state law enforcement and judicial resources, and even in substantive [**56] state law, by altering the underlying enforcement realities against which all such allocative and legislative decisions are made. Thus, it is clear that the balance between federal and state responsibility for the control of violent crime is implicated not only by federal criminal statutes, but also by any federal sanction for such crime, even in the form of civil remedy. See Chief Justice William H. Rehnquist, Welcoming Remarks: National Conference on State-Federal Judicial Relationships, 78 Va. L. Rev. 1657, 1660 (1992) (noting section 13981's "potential to create needless friction and duplication among the state and federal systems"); cf. Lopez, 514 U.S. at 582 ( Kennedy, J., concurring) (approving argument that "injection of federal officials into local problems causes friction and diminishes accountability of state and local governments" (citation omitted)).

. . . .

Thus, not only does section 13981 provide a federal remedy for violent crime in addition to those remedies already provided by the laws of the States -- thereby increasing the total penalty for such crime -- it also provides such a remedy for violence that the States [*842] would leave unpunished, whether for reasons of state criminal-law policy, prosecutorial discretion, or state tort-law policy. And the statute deliberately disregards the limits of state criminal and civil law, purportedly in response to the States' failure properly to enforce their criminal and tort laws against gender-motivated violent criminals. See infra Parts III.D.2, IV. By responding to this alleged failure of the States not with a remedy against the States or their officers, [**60] as would a civil rights statute properly enacted pursuant to Section 5 of the Fourteenth Amendment, see infra Part IV.A, but instead with a remedy against the violent criminals themselves, Congress not only has encroached upon the States' ability to determine when and how violent crime will be punished, see Lopez, 514 U.S. at 581 (Kennedy, J., concurring) (noting States' abilities "as laboratories for experimentation to devise various solutions" for problems whose "best solution is far from clear"); id. at 583 (GFSZA impermissibly "forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and experience"), but in so doing has blurred the boundary between federal and state responsibility for the deterrence and punishment of such crime. Accordingly, the citizens of the States will not know which sovereign to hold accountable for any failure to address adequately gender-motivated crimes of violence. . . . Moreover, it is undisputed that a primary focus of section 13981 is domestic violence, a type of violence that, perhaps more than any other, has traditionally been regulated not by Congress, but by the several States. See, e.g., infra at 49-50 (discussing congressional findings on the extent and effects of domestic violence). Though such violence is not itself an object of family law -- an area of law that clearly rests at the heart [**62] of the traditional authority of the States, see Lopez, 514 U.S. at 564 -- issues of domestic violence frequently arise from the same facts that give rise to issues such as divorce and child custody, which lie at the very core of family law. . . .

. . . .

[*843] Section 13981 also sharply curtails the States' responsibility for regulating the relationships between family members by abrogating interspousal and intrafamily tort immunity, the marital rape exemption, and other defenses that may exist under state law by virtue of the relationship that exists between the violent actor and victim. See § 13981(d)(2)(B); cf. Br. of Intervenor United States at 12 (noting that, "as of 1990, seven states still did not include marital rape as a prosecutable offense, and an additional 26 states allowed prosecutions only under restricted circumstances"). Although Congress may well be correct in its judgment that such defenses represent regrettable public policy, the fact remains that these policy choices have traditionally been made not by Congress, but by the States. By entering into this most traditional area of state concern, Congress has not only substantially reduced the States' ability to calibrate the extent of judicial supervision of intrafamily violence, see Lopez, 514 U.S. at 581 ( Kennedy, J., concurring), but has also substantially obscured the boundaries of political responsibility, freeing those States that would deny a remedy [**65] in such circumstances from accountability for the policy choices they have made, see id. at 576-77.

The sweeping intrusion of section 13981 into these areas of traditional state concern well illustrates the essentially limitless nature of congressional power that would follow if we were to accept, as sufficient to justify federal regulation under the Commerce Clause, the type of connection with interstate commerce on which appellants rely in this case. Under such an understanding, the only conceivable limit on congressional power to regulate an activity would be the significance of that activity, because any significant activity or serious problem will have an ultimate, though indirect, effect upon the economy, and therefore, at least presumptively, upon interstate commerce as well. While we do not question the significance of the problems posed by violence arising from gender animus, Lopez confirms that such significance, standing alone, simply does not provide a meaningful limitation on federal power, and that a problem does not become a constitutionally permissible object of congressional regulation under the Commerce Clause merely because it is serious. . . .

. . . .

In short, to hold that an attenuated and indirect relationship with interstate commerce of the sort asserted here is sufficient to bring within Congress' power to regulate such commerce the punishment of gender-motivated violent crime, an activity that has nothing to do with commerce and that has traditionally been regulated by the States, we would have to do what the Supreme Court has never done, and what the Lopez Court admonished us not to do: "pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States" and "conclude that the Constitution's enumeration of powers does not presuppose [**70] something not enumerated, and that there never will be a distinction between what is truly national and what is truly local." Id. at 567-68 (citations omitted). Like the Supreme Court, "this we are unwilling to do." Id. at 568.

To the extent that appellants even acknowledge the precedential force of Lopez, see infra Part III.E, they attempt to distinguish that decision primarily in two ways. First, they argue that here, unlike in Lopez, the relationship between the regulated activity and interstate commerce upon which they rely is not just identified by them alone, but is also documented by congressional findings to which we are obliged to defer. Second, they contend that section 13981 regulates conduct implicating civil rights, that civil rights is an area of manifest federal concern, and that therefore the regulation of the conduct here, despite its noneconomic character and its lack of a close connection to interstate commerce, does not offend the first principles of federalism. Appellants argue that these distinctions are sufficient grounds for upholding the constitutionality of section 13981 under the Commerce Clause. We disagree.

It is true that [**71] section 13981, unlike the Gun-Free School Zones Act as originally enacted, is accompanied by congressional findings regarding the extent and effects of the [*845] problem it addresses. However, though Congress' legislative expertise is entitled to deference, Lopez is unmistakable that our deference is not, and cannot be, absolute. And the principles articulated in that decision leave little doubt that the findings here are simply inadequate to sustain section 13981 as a constitutional exercise of Congress' power under Article I, Section 8.

(a)

The Lopez Court acknowledged that "legislative findings, and indeed even congressional committee findings," may assist the courts in determining constitutionality under the Commerce Clause. Lopez, 514 U.S. at 562; see also id. at 563 (noting the lack of findings that "would enable [the Court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye"). The Court emphasized, however, that "simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily [**72] make it so." Id. at 557 n.2 (citation omitted). Rather, because the question of whether particular activities "affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question," id., we cannot sustain a statute solely on the strength of a congressional finding as to the factual relationship between a particular activity and interstate commerce. Instead, we must undertake an "independent evaluation" . . . .

. . . .

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose anything not enumerated, and that there never will be a distinction between what is truly national [**80] and what is truly local. This we are unwilling to do.
. . . .

In fairness to [appellants], however, they are far more abashed in their reliance upon congressional findings than are our dissenting colleagues, who are [**81] quite candid about their prostrate deference to congressional pronouncements. The dissenters begin and end their Commerce Clause analysis by posing the dispositive question as "whether . . . Congress exceeded its constitutional authority in enacting" section 13981. In the immediately following two sentences, they then provide what, from their following discussion, we know is for them the answer -- namely, that Congress did not exceed its authority, because "Congress directly addressed this very question" and on the basis of findings and evidence concluded that, in fact, it did act constitutionally in enacting section 13981. See infra at 173. n15 And only [*848] as an afterthought (literally) -- and, for it, an empty one at that, see id. at 70-72 -- does the dissent even acknowledge that the courts must ensure compliance with the Constitution. Id. at 173-174, 191. So far from Lopez, appellants would not even dare to venture.

. . . .

Lopez, then, cannot reasonably be understood to contemplate absolute deference to legislative findings, either in theory or in practice. As the opinion instructs, such findings can clarify the factual relationship that exists between conduct that a statute seeks to regulate and interstate [**88] commerce. However, because constitutionality under the substantially affects test turns ultimately not on mere empirical fact but on law, unless the relationship so clarified is sufficient to satisfy the legal requirements of that test, the statute cannot be sustained.

(b)

When viewed not with absolute deference, but rather "as part of our independent evaluation of constitutionality under the Commerce Clause," Lopez, 514 U.S. at 562, it is apparent that the congressional findings on which appellants rely cannot establish that section 13981 is a permissible regulation under the substantially affects test.

In the first place, although the appellants cite hearings and committee reports from at least three different Congresses-- raising the reasonable question of which Congress found what, a question we would be forced to pursue if we believed findings constituted a formal procedural requirement -- many of the congressional findings on which the appellants rely describe only indirectly the relationship between gender-motivated violent crime and interstate commerce. Although the committee reports recite numerous findings that violence against women generally, and domestic violence [**89] in particular, are significant problems, see, e.g., S. Rep. No. 103-138, at 38 (1993) (rape and murder statistics); id. at 41-42 (family violence); H.R. Rep. No. 103-395, at 26 (1993) (domestic violence statistics); S. Rep. No. 101-545, at 37 (1990) (same); H.R. Rep. No. 103-395, at 25 (violent [*850] crime generally), and even that domestic violence and other violence against women affects the economy, see, e.g., S. Rep. No. 103-138, at 41 (estimating "health care, criminal justice and other social costs of domestic violence" at $ 5 to $ 10 billion annually)); S. Rep. No. 101-545, at 33 ("Partial estimates show that violent crime against women costs this country at least 3 billion . . . dollars a year."), neither of these propositions clarifies the impact of gender-motivated violence against women -- as opposed to all violence against women -- on the economy. . . .

. . . .

Therefore, as a court, we cannot avoid our duty to evaluate independently the constitutionality of section 13981 under the Commerce Clause.

The legislative record in this case, considered as a whole, shows that violence against women is a sobering problem and also that such violence ultimately does take a toll on the national economy. The record also supports an inference that some portion of this violence, and the toll that it exacts, is attributable to gender animus. And Congress' specific findings regarding the relationship between gender-motivated violence and interstate commerce, though somewhat conclusory, cf. Lopez, 514 U.S. at 612 n.2 ( Souter, J., dissenting) (noting that the findings added by Congress to the GFSZA were made "at such a conclusory level of generality as to add virtually nothing to the record"), depict the manner in which such violence affects interstate commerce -- primarily by imposing medical, legal, and other costs upon its victims; by discouraging those who fear such violence from traveling, working, or transacting business at times [**95] or in places that they deem unsafe (thereby deterring some interstate travel, employment, and transactions); and, as a result, by inhibiting the productivity of its actual or potential victims and decreasing the supply and demand for interstate products.

This legislative record no doubt supports the wisdom and legitimacy of many of the measures Congress enacted in the Violence Against Women Act, such as the expenditure of federal funds, the criminalization of violence against women with an explicit interstate nexus, and the amendment of the Federal Rules of Evidence to better accommodate the victims of such violence. And, given the sweeping view of Congress' power to regulate interstate commerce suggested by the committee reports and the express statutory-purpose provision, it is not surprising that Congress believed the relationship between gender-motivated crimes of violence and interstate commerce sufficient to support, under the Commerce Clause, the regulation of this noneconomic activity, even in the absence of a jurisdictional element.

However, although appellants repeatedly assert that the relationship described by these findings is direct, see, e.g., Br. of Intervenor [**96] United States at 19, 28, 30-31; Reply Br. of Intervenor United States at 10, 12-13, it quite simply is not. Rather, it is almost precisely analogous to the attenuated, though undoubtedly real, relationship asserted to exist between guns in school zones and interstate commerce, see Lopez, 514 U.S. at 563-64 (rejecting arguments of costs of crime, decreased travel, and decreased national productivity as insufficient to bring the regulation of guns in school zones within the Commerce power), or, for that matter, to that which undoubtedly exists between any significant activity and interstate commerce. That the relationship here is asserted not by appellants alone, but also by Congress, cannot be dispositive. As noted, the Supreme Court did not reject the [*852] government's arguments in Lopez because they lacked formality. Nor did it reject them because it did not understand them or because it questioned their factual validity. Rather, the Supreme Court held that the Commerce power could not be extended to the regulation of activities having only such an attenuated relationship with interstate commerce without granting Congress an unlimited police power inconsistent with a Constitution [**97] of enumerated and limited federal powers. Here, as in Lopez, the power that Congress has asserted is essentially limitless; the existence of findings or documentation, standing alone, does not provide the type of meaningful limitation on congressional power required by a Constitution that withholds from Congress "a general police power of the sort retained by the States." Id. at 567.

Appellants also argue that section 13981 is a "civil rights" statute, see 42 U.S.C. § 13981(a) (noting purpose of Act "to protect the civil rights of victims of gender motivated violence"), and as such cannot offend the first principles of federalism because civil rights represents an area of "quintessential federal responsibility." Supp. Br. of Intervenor United States at 6; see also Br. of Intervenor United States at 32 (same).

It is unquestionably true that Congress has traditionally assumed an essential role in enacting legislation to protect civil rights and to root out discrimination and its vestiges. However, the Congress has never asserted a general authority, untethered to any specific constitutional power, to enact such legislation. And the Supreme Court has never upheld [**98] such legislation solely for the reason that it is civil rights in character. Appellants do not contend otherwise, nor do they really even contend seriously that the Court should do so. Instead, as would be expected under our Constitution of enumerated powers, the Court has upheld such legislation, as all other legislation, only when it has been enacted in exercise of a specific power conferred upon Congress by the Constitution. . . . In fact, the Court has not hesitated to invalidate even the most paradigmatic of civil rights initiatives, like the Civil Rights Acts of 1871 and 1875, when there was lacking such support in [**99] the Constitution. See United States v. Harris, 106 U.S. 629, 27 L. Ed. 290, 1 S. Ct. 601 (1883); Civil Rights Cases, 109 U.S. 3, 27 L. Ed. 835, 3 S. Ct. 18 (1883).

Unlike those civil rights laws that have been readily enacted by Congress and readily sustained by the Supreme Court, however, section 13981 is untethered to, and otherwise unsupported by, any such enumerated power. Although appellants attempt to justify section 13981 as a legitimate exercise of Congress' power over interstate commerce, the intrastate, noncommercial violence reached by the section, and its consequences, are far removed from interstate "commercial concerns that are central to the Commerce Clause." Lopez, 514 U.S. at 583 ( Kennedy, J., concurring).

Moreover, the conduct targeted by section 13981 bears little resemblance to the discriminatory state denial of equal protection or other conduct that is the concern of the Reconstruction Amendments. See infra Part IV. Although assertedly enacted out of concern, in part, for inadequate state law enforcement, the particular shortcomings ascribed by Congress to the States are not so much intentional -- and thus unconstitutional -- discrimination by [**100] the States, but rather the failure, despite "fervent" and "sincere" efforts, S. Rep. No. 102-197, at 39; S. Rep. No. 101-545, at 33, to eradicate the "subtle prejudices" and "stereotypes" that prevent the victims of gender-motivated crimes from obtaining legal vindication in the state courts, S. Rep. No. 102-197, at 39. And the legislation does not even address these shortcomings directly by regulating the States or their [*853] officials, but, instead, creates a cause of action against private individuals. . . .

And, not only does section [**101] 13981 regulate wholly intrastate and private conduct, but the conduct regulated also falls within the most traditional of state concerns. That is, Congress' motive notwithstanding, the legislation indisputably shifts power from the States to the federal government, blurring the "distinct and discernable lines of political accountability" required by our Constitution. See Lopez, 514 U.S. at 576 ( Kennedy, J., concurring). n17

. . . .

If we were to hold that a statute like section 13981, which regulates purely private, noneconomic activity at the very core of traditional state concern and has only the most attenuated relation to interstate commerce, could nonetheless be sustained under the Commerce Clause based upon no more than the kind of generalized findings of state shortcomings made here, then Congress could circumvent the constitutional limits on federal power imposed by both the Commerce Clause and the Fourteenth Amendment, see infra Part IV, and claim a general police power, because charges that States have failed fully to eradicate or remedy bias can be made about nearly every area of traditional state concern. . . . In [*854] fact, the very findings on which appellants rely in this case would, themselves, justify not only section 13981, but the federalization of all crimes against women, see, e.g., S. Rep. No. 103-138, at 49 (citing studies concluding "that crimes disproportionately affecting women are often treated less seriously than comparable crimes affecting men"). For that matter, they would justify federal regulation, and even occupation, of the entire field of family law, including divorce, alimony, child custody, and the equitable division of property. See S. Rep. No. 102-197, at 43 n.40 (citing studies of state task forces on gender bias that find bias and state failings throughout the entire area of domestic relations and family law); S. Rep. No. 103-138, at 49 n.52 (similar).

. . . .

IV.

Although in the wake of City of Boerne appellants have returned to defend section 13981 primarily as a constitutional exercise of Congress' power under the Commerce Clause, they still contend alternatively, though now less enthusiastically, that section 13981 is a constitutionally legitimate exercise of Congress' power under Section 5, [*862] one of the explicit bases upon which section 13981 was enacted. See 42 U.S.C. § 13981(a) (describing statute as adopted "pursuant to the affirmative power of Congress to enact this part . . . under section 5 of the Fourteenth Amendment . . .").

The Fourteenth Amendment, of course, provides in pertinent part as follows:

Section 1. No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

Section [**132] 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
U.S. Const. amend. XIV, §§ 1, 5. Appellants maintain that Congress properly invoked Section 5 in enacting section 13981 because Congress concluded that bias and discrimination against women in the state criminal justice systems "often deprive[ ] victims of crimes of violence motivated by gender of equal protection of the laws and the redress to which they are entitled" and that section 13981 was "necessary to guarantee equal protection of the laws." H.R. Conf. Rep. No. 103-711, at 385, reprinted in 1994 U.S. Code Cong. & Admin. News 1839, 1853. The remaining issue for us, therefore, is whether section 13981 is "appropriate legislation" to "enforce" the substantive constitutional guarantee that "no State . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, §§ 1, 5. In light of Supreme Court precedent, and particularly given the Court's recent decision in City of Boerne, we hold that it is not.

Section 13981 creates a cause of action against private parties who commit acts of gender-motivated violence, and that [**133] action may be pursued without regard to whether the State connived in those acts or otherwise violated the particular plaintiff's constitutional rights. To sustain section 13981 under Section 5 of the Fourteenth Amendment, therefore, we would have to hold that Section 5 permits Congress to regulate purely private conduct, without any individualized showing of unconstitutional state action. Because, under the Amendment's text, its history, and a consistent line of Supreme Court precedent dating from just after the Amendment's ratification to the present, it is established that Congress may not regulate purely private conduct pursuant to its Fourteenth Amendment enforcement power, we cannot so hold.

Section 1 of the Fourteenth Amendment, which defines the rights "enforceable" by Congress through "appropriate legislation," provides that "no State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1 (emphasis added). The Supreme Court observed in United States v. Guest, 383 U.S. 745, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966), that this prohibition is directed exclusively to the States:

The Equal Protection [**134] Clause does not add anything to the rights which one citizen has under the Constitution against another. . . . This has been the view of the Court from the beginning [and] it remains the Court's view today.
Id. at 755 (internal quotation marks and citations omitted). In the thirty years since Guest, not only the Court as a whole but nearly every Member of the Court individually has expressly embraced this longstanding view as to the state action limitation of the Amendment.

. . . .

In reaching this conclusion, the Court first canvassed the language and meaning [**145] of the Fourteenth Amendment and concluded both that Section 1 of that Amendment imposes an obligation only upon the States and that Section 5 of the same authorizes Congress to enforce the guarantees of Section 1 only against the States themselves:

[The Fourteenth Amendment] is a guaranty of protection against the acts of the State government itself. It is . . . not a guaranty against the commission of individual offenses; and the power of Congress . . . to legislate for the enforcement of such a guaranty, does not extend to the passage of laws for the suppression of crime within the States. The enforcement of the guaranty does not require or authorize congress to perform "the duty that the guaranty itself supposes it to be the duty of the State to perform, and which it requires the State to perform."
Id. at 638 (internal quotation marks omitted; emphasis added); see also id. at 638-39 ("The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, or from denying to any person the equal protection of the laws; but this provision does not add anything to the rights of one citizen [**146] against another. . . . The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, and no more. The power of the national government is limited to this guaranty." (citation omitted)). . . .

. . . .

Finally, and in stark contrast to the approach urged on us by appellants, the Court emphasized, as it had in Harris, that a court entertaining a Section 5 challenge is not simply to defer to the apparent conclusion of Congress that the statute is within its constitutional powers, but rather is duty-bound to form "an independent judgment" regarding the constitutionality of the statute and to "exercise [that judgment] according to the best lights" available to the court. Id. at 10. Exercising such judgment, the Court held that the provisions of the 1875 Act were not a permissible exercise of Section 5 power, and inter alia affirmed the judgments for the defendants, including the defendant in the private cause of action.

. . . .

Thus, . . . it is now well established that, under the Fourteenth Amendment, Congress may adopt "appropriate legislation" to "enforce" its affirmative prohibitions against state action and action taken under color of state law. Congress may also regulate the conduct of nominally private persons who act in connivance with the State or whose conduct receives the "imprimatur of the State." And, although the Supreme Court has never so held and has not addressed the issue in recent years, it has left open the possibility that Congress may regulate private conduct pursuant to a statute that applies only on an individualized showing of a State's violation of the Fourteenth Amendment. But Congress may not regulate purely private conduct under the Fourteenth Amendment. On this the Court has never wavered.

City of Boerne, Harris, the Civil Rights Cases, and the principles underlying these cases confirm beyond question that section 13981 cannot be sustained under the Enforcement [**158] Clause of the Fourteenth Amendment. Section 13981 unmistakably regulates private action; it creates a cause of action against private individuals who commit acts of gender-motivated violence. Under section 13981, liability is not limited to the States, to their officials, to those who act under color of state law, or even to those who actively conspire with state officials. See 42 U.S.C. § 13981(c). . . .

[*870] Further, like the statutes invalidated in Harris and the Civil Rights Cases, section 13981 is not limited to take effect only upon an individualized showing of unconstitutional state action. Indeed, liability under section 13981 attaches without regard to whether the State adequately enforced its applicable criminal or civil laws. The statute even applies where, as here, no prior criminal or state civil complaint was even filed. 42 U.S.C. § 13981(d)(2)(A) (cause of action may lie without regard to whether the predicate acts of violence "have actually resulted in criminal charges, prosecution, or conviction"); id. § 13981(e)(2) ("nothing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action"). Like the law invalidated by the Supreme Court in Harris, section 13981 is "directed exclusively against the action of private persons, without reference to the laws of the States or their administration by her officers." Harris, 106 U.S. at 640. Section 13981 imposes liability for gender-motivated [**160] acts of violence, regardless of whether the predicate act of violence occurs in a State that at the time has "the justest laws" and authorities "ever ready to enforce such laws," Civil Rights Cases, 109 U.S. at 14, or whether it occurs in a State that has unconstitutionally turned a blind eye toward or deliberately contributed to or participated in the particular act of violence.

The absence of any such jurisdictional limitations confirms that section 13981 . . . but rather is "primary and direct" legislation that "takes immediate and absolute possession of the subject of" individual acts of violence. Id. at 19. This is precisely the type of statute that the Supreme Court warned over a century ago would, if held valid under Section 5 of the Fourteenth Amendment, authorize a congressional "municipal code" through which the federal government could [**161] act directly upon all the rights of life, liberty, and property of all citizens and thereby eliminate altogether any role for the several States.

Accordingly, although we afford section 13981 the full presumption of constitutionality due an enactment of a coordinate branch of the federal government, we must hold, in spite of the "strenuous[ ] insistence" of the government to the contrary, see Harris, 106 U.S. at 637, that section 13981 simply cannot be sustained under Section 5 of the Fourteenth Amendment.

In obvious recognition of these fundamental principles, as well as the import, for the arguments they advance, of Harris, the Civil Rights Cases, and the modern precedents reaffirming the broader holdings of these cases as to the scope of Section 1 and Section 5, appellants attempt variously to argue that Harris and the Civil Rights Cases are distinguishable, that they have been sub silentio overruled or qualified, and that they have been explicitly repudiated by the Supreme Court and other authorities. But none of these arguments is availing, as appellants themselves appear to understand.

. . . .

Evidently aware of the speciousness of these distinctions and, ultimately, of the fundamental premise on which they rest, appellants argue in the alternative that Harris and the Civil Rights Cases have been tacitly overruled by, or at least qualified by analogy to, the distinct line of cases holding that Congress may, as a "prophylactic" measure under Section 5, proscribe some conduct that does not violate Section 1 of the Fourteenth Amendment. . . .

Appellants are doubtless correct that Congress may, pursuant to Section 5, prophylactically regulate or proscribe certain state conduct that does not violate Section 1 of the Fourteenth Amendment. In the prophylactic cases, however, the Court has only upheld federal statutes that prohibited state action; it has never upheld statutes, like section 13981, that prohibited private action. [**176] None of the prophylactic cases (nor any other Supreme Court case) holds or suggests that Congress may employ such a rationale to reach purely private conduct.

. . . .

In summary, although appellants expressly contend that Harris and the Civil Rights Cases are distinguishable, have tacitly been overruled or modified, and have been repudiated by subsequent authorities, it is apparent from the character of each of these arguments and the "authorities" upon which they rely that appellants really have no argument other than that we should ignore these decisions because they are "too old" to be controlling. To the point of histrionics, in fact, appellants incant that Harris and the Civil Rights Cases are simply "outdated," Reply Br. of Appellant Brzonkala at 9, "century-old," Reply Br. of Appellant Brzonkala at 10, from the"1870's [sic] and 1880's," Br. of Intervenor United States at 22 n.11, "19th century" cases, Reply Br. of Intervenor United States at 3, and of little interest to "modern courts," Br. of Appellant Brzonkala at 31, or those with "modern" views about the proper scope of Congress' powers. Id.

Indeed, the government in its principal brief cites Harris and the Civil Rights Cases but once, and that citation is a parenthetical embedded within footnote. Br. of Intervenor United States at 22. As we are [**200] confident appellants appreciate, however, especially in light of the Supreme Court's recent explicit reliance upon both Harris and the Civil Rights Cases in City of Boerne, we are not at liberty simply to conclude that these cases do not represent the Court's current view of congressional power to regulate exclusively private conduct under Section 5. If Harris and the Civil Rights Cases are to be overruled, which the present Supreme Court apparently has no inclination to do, such must come from that Court itself. See, e.g., Rodriguez de Quijas v. Shearson/American Express Inc., 490 U.S. 477, 484, 104 L. Ed. 2d 526, 109 S. Ct. 1917 (1989).

Given the scope of the Fourteenth Amendment's guarantees as articulated by the Supreme Court and explained above, it is apparent [*881] in light of the Supreme Court's recent pronouncement in City of Boerne that section 13981 is not "appropriate legislation" to "enforce" those guarantees, because section 13981 is neither sufficiently aimed at safeguarding the Equal Protection rights guaranteed by that Amendment nor an appropriate means to protect those rights. In fact, as we noted, so crippling to appellants' [**201] Section 5 defense of section 13981 is the Court's intervening decision in City of Boerne, that both appellants now defend section 13981 primarily under the Commerce Clause, and only secondarily under Section 5, whereas before the panel of this court, immediately after the Court's decision in Lopez, they quite understandably defended the statute primarily as an exercise of Congress' Section 5 authority and only secondarily as a valid exercise of Congress' Commerce power under Article I, Section 8.

According to appellants, section 13981 is a legitimate exercise of Congress' Section 5 powers because it is designed and operates to enforce the Equal Protection Clause by remedying sex discrimination in the enforcement of state laws. This argument turns entirely on a congressional finding in a House Conference Report that "bias and discrimination in the criminal justice system[s of the States] often deprives victims of crimes of violence motivated by gender of equal protection of the laws and the redress to which they are entitled" and that section 13981 is "necessary to guarantee equal protection of the laws." H.R. Conf. Rep. No. 103-711, at 385, reprinted in 1994 U.S. [**202] Code Cong. & Admin. News at 1853; see also S. Rep. No. 103-138, at 55 (asserting that section 13981 "provides a necessary remedy to fill the gaps and rectify the biases of existing State laws"). Appellants insist that this legislative history confirms that Congress enacted section 13981 for the purpose of enforcing the Equal Protection Clause, and that, as long as we can perceive any rational basis for Congress to have enacted section 13981 as a means to that end, we should defer to Congress' considered judgment and uphold the statute. See, e.g., Br. of Appellant Brzonkala at 33 (criticizing district court for "substituting its own judgment about a suitable remedy" by engaging in means-end analysis of section 13981 and for "defying its obligation to defer to Congress' construction of the problem as long as it could perceive a basis upon which the Congress might resolve the conflict" (emphasis added and citation omitted)); Br. of Intervenor United States at 26-27 ("Congress itself found evidence of widespread equal protection violations . . . [and] though the district court might have preferred a different remedy, the choice was Congress's to make."); id. at [**203] 27 ("'It is not for [a court] to review the congressional resolution of these factors. It is enough that [it] be able to perceive a basis upon which the Congress might resolve the conflict as it did.'") (quoting Katzenbach v. Morgan, 384 U.S. at 653). The underlying premise of this argument is that Congress possesses such "exceptionally broad discretion" to legislate pursuant to Section 5, Supp. Br. of Intervenor United States at 7, and that, at least in practice, it is for Congress to decide whether a statute is "appropriate legislation" to "enforce" the Fourteenth Amendment.

The Supreme Court has made clear, however, that we cannot simply defer to these congressional findings or conclusions; rather, we must arrive at an independent judgment as to the constitutionality of section 13981. . . .

By invalidating the Religious Freedom Restoration Act, the Supreme Court in City of Boerne reaffirmed the principle that, in order to secure a federal government of limited and enumerated powers, id., congressional legislation enacted pursuant to Section 5 must be carefully scrutinized by the courts to ensure that Congress is truly enforcing the provisions of the Fourteenth Amendment, rather than redefining the substance of those provisions under the guise of enforcement. [**205] Id. at 2164. Although acknowledging that "the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law" is not always "easy to discern," id., the Court emphasized that this distinction "exists and must be observed," id. (emphases added). To this end, the Court declared that a court entertaining a Section 5 challenge can uphold the statute only if there exists a "congruence and proportionality between the [constitutional] injury to be prevented or remedied and the means adopted to that end," id., or, in other words, only if the statute is actually aimed at, and is a closely tailored means of, enforcing a provision of Section 1. The Supreme Court then applied this "congruence and proportionality" test to the Religious Freedom Restoration Act and concluded that the statute exceeded Congress' powers under Section 5, both because it appeared from the Act's legislative history that the statute was aimed at remedying those constitutionally permissible burdens imposed upon religion by generally applicable and religion-neutral laws rather than any unconstitutional laws that targeted [**206] religion, id. at 2168-69, and also because the Act's "sweeping coverage" of all state laws regardless of subject matter, level of government, and without any geographic restriction or termination mechanism, was "so out of proportion to a supposed remedial or preventive object" as to betray the non-remedial character of that statute. Id. at 2170.

City of Boerne therefore eliminates the fundamental premise of appellants' arguments, namely, that a court cannot independently evaluate Congress' decision that section 13981 is "appropriate legislation" to "enforce" the Equal Protection Clause. . . .

. . . .

Application of the principles set forth in City of Boerne to section 13981 reveals that section 13981 clearly represents an illegitimate exercise of Section 5 authority, because it is neither aimed at violations of the Equal Protection Clause nor a closely tailored means of correcting any such violations.

(a)

First, it is clear under City of Boerne that we cannot simply defer wholesale to Congress' purely legal conclusion that "bias and discrimination in the criminal justice system[s of the States] often deprives victims of crimes of violence motivated by gender of equal protection of the laws and the redress to which they are entitled." H.R. Conf. Rep. No. 103-711, at 385, reprinted in 1994 U.S. Code Cong. & Admin. News at 1853; see also S. Rep. No. 103-138, at 55 ("the criminal justice system is not providing equal protection of the laws of women in the classic sense") (quoting Prof. Cass Sunstein). Indeed, as a legal conclusion, this particular finding may be worthy of little, if any, deference. The finding is an essentially verbatim recitation of the congressional testimony of a single law professor, and it was added to the legislative history only after [**210] that law professor testified that such a "finding" would be instrumental in defending the constitutionality of section 13981 under Section 5. n32 This [*884] finding thus appears to be less a considered congressional judgment as to the constitutionality of section 13981 than legal boilerplate belatedly appended to the House Conference Report in an effort to insulate section 13981 from judicial review. Moreover, even if this finding did represent a considered congressional judgment as to the constitutionality of section 13981, the soundness of that judgment is drawn into question by the fact that Congress also "found" -- contrary to Supreme Court precedent applying the Equal Protection Clause only to state action -- that purely private acts of violence against women also "threaten women's equal protection of the laws." S. Rep. No. 103-138, at 55. Therefore, instead of deferring wholesale to Congress' conclusion that section 13981 is aimed at, and a remedy for, violations of Equal Protection, we must examine the legislative history and structure of section 13981 to determine the basis of Congress' conclusion.

. . . .

The legislative history of section 13981, like that of the Religious Freedom Restoration Act invalidated in City of Boerne, reveals that section 13981 was not enacted as a remedy for action that violates, or may violate, the Constitution. Although this legislative history does establish that the States enforce and apply certain laws in a manner that may ultimately prevent the victims of gender-motivated violence from obtaining vindication through the criminal or civil systems, the portions of the legislative history cited by appellants do not demonstrate that Congress "[was] concerned," City of Boerne, 117 S. Ct. at 2169, with the type of purposeful discrimination against women in the enforcement of facially neutral laws that could give rise to an equal protection violation. Personnel Adm'r. v. Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979) (holding that Equal Protection Clause sex-discrimination challenge to facially neutral law must fail without a showing of purposeful discrimination); cf. Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976); Village of Arlington Heights v. Metropolitan Hous. Corp, 429 U.S. 252, [**212] 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977).

Although appellants are doubtless correct that the legislative history of the Violence Against Women Act -- a statute that includes but is not limited to section 13981 -- comprises an impressive array of reports and hearings detailing the scope of the problem of violence against women, these extensive findings are, in the final analysis, of little value in the Section 5 inquiry. Many of them do not relate to burdens imposed by state action . . . .And, most importantly, even if we were to concede that the legislative history detailed state discrimination of some sort, the record recites few, if any, specific findings that the States are engaging in unconstitutional discrimination against women in the enforcement or application of their criminal [**213] and civil laws. . . . Furthermore, although the legislative history also discusses some specific features of state laws that need reform, neither appellant has cited any portion of this massive legislative history indicating that the failure of the States to adopt such reforms is the result of purposeful and unconstitutional discrimination against women.

. . . .

If anything, the hearings and reports on section 13981 bear out that the States and state law enforcement officials are not purposefully discriminating against women in the enforcement of laws against gender-motivated crimes of violence, but rather that they have undertaken the "most fervent," S. Rep. No. 102-197, at 39, and "sincere efforts . . . to assist . . . victims of rape and domestic violence," S. Rep. No. 101-545, at 33, and that despite such efforts, "subtle prejudices" and "stereotypes," S. Rep. No. 102-197, at 39, among society at large continue to prevent women [**215] from filing criminal complaints, bringing suit, and otherwise obtaining vindication through the legal system. . . .

The structure of section 13981 and other provisions of the VAWA further confirm the lack of congruence between the statute and its asserted aim of addressing purposefully unequal law enforcement by the States. Most telling, of course, is the fact that section 13981 directly regulates only private individuals who commit acts of violence and subjects those individuals to liability for the harms resulting from that violence. That is, the statute does not regulate the actions of the States or any other action taken under color of state law, much less remedy or correct [**217] the States' discriminatory enforcement or application of their laws. For example, if a State consistently refuses to prosecute rapists because of its gender animus against their female victims, the victim's ability to obtain some small measure of justice through federal damages suits against the rapist would hardly eliminate or correct the State's constitutional violations. . . . That section 13981 provides a remedy only against private individuals who commit violent crimes is significant, and perhaps dispositive, evidence that section 13981 does not truly aim at correcting unequal and unconstitutional enforcement of the laws by the States, but aims instead only to remedy or deter the underlying acts of violence to which that liability attaches.

Other features of the statute likewise belie the suggestion that section 13981 is designed to remedy purposeful discrimination against women by the States. For example, section 13981 vests the [**218] state courts with concurrent [*886] jurisdiction over section 13981 claims. 42 U.S.C. § 13981(e)(3). This mandatory concurrent jurisdiction provision is hard to square with the asserted rationale that section 13981 was designed to remedy unconstitutional state discrimination. . . .

. . . .

The conclusion that Congress did not design section 13981 as a remedy for purposeful discrimination against women by hostile state courts is also borne out by features of the VAWA whose constitutionality is not at issue here. For example, in addition to creating a private cause of action, other provisions of the VAWA appropriated approximately $ 1.6 billion in federal funds, subject to enhancement, to help the States eliminate the causes and effects of rape and domestic violence. 42 U.S.C. § 3796gg (law enforcement); id. § 300w-10 (education and prevention programs); id. § 10402(a) (battered women's shelters). Such a generous subsidy to the state governments casts serious doubt upon any suggestion that the Congress that enacted section 13981 was truly concerned with purposeful and unconstitutional deprivations of Equal Protection rights at the hands of hostile state governments.

In sum, the combined effect of the legislative history, the structure of section 13981, and the other provisions of VAWA is to disprove any contention that section 13981 was actually aimed at purposeful acts of unconstitutional sex discrimination. . . . To the contrary, these materials establish that Congress' true concerns in enacting VAWA were to deter or remedy individual and private acts of violence and to raise public consciousness about the seriousness of violent crimes against women by sending a national signal of opposition to this class of violent crime. Although these are unquestionably worthy public policy goals, they are not sufficient in and of themselves to render section 13981 a legitimate exercise of Congress' power under Section 5 of the Fourteenth Amendment.

(b)

Even if section 13981 were intended as a means to remedy unconstitutional discrimination by the States, it, much like the provisions of the Religious Freedom Restoration Act invalidated in City of Boerne, is so out of proportion to any possible unconstitutional state action at which it might conceivably be aimed as to exceed congressional power to [*887] "enforce" the Fourteenth Amendment. Liability under section [**222] 13981 attaches to all felonious acts of violent crime motivated by gender, 42 U.S.C. § 13981(c), and the provision creates a statutory right and a cause of action to enforce that right for all persons in the United States who suffer from such violent crime. Id. § 13981(b) (conferring upon "all persons within the United States" the statutory right to be free from gender-based crimes); id. § 13981(c) (creating cause of action for the same). This sweeping coverage is in no way tailored to the asserted ends of equal enforcement of the laws. . . .

(c)

The Supreme Court concluded its Section 5 analysis in City of Boerne by observing that, if it were to uphold the Religious Freedom Restoration Act as an appropriate exercise of Section 5, such would "contradict[ ] vital principles necessary to maintain separation of powers and the federal balance," id. at 2172, namely, that the federal government not be accorded a general police power but rather [**227] be confined to its limited and enumerated powers, id. at 2162 ("Under our Constitution, the Federal Government is one of enumerated powers."); id. (citing The Federalist No. 45). Or, as Justice Kennedy explained in the analogous context of construing 42 U.S.C. § 1985(3), "essential considerations of federalism are at stake here. The federal balance is a fragile one, and a false step in interpreting § 1985(3) risks making a whole catalog of ordinary State crimes a concurrent violation of a single congressional statute . . . ." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 287, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993) ( Kennedy, J., concurring) (emphases added). We are convinced that we would disrupt the "vital" "federal balance," and essentially confer upon Congress a general police power, were we to hold that section 13981 is a legitimate exercise of congressional remedial power under Section 5.

If the congressional findings cited here suffice to render section 13981 a legitimate enforcement of the Fourteenth Amendment, then in effect the federal government could constitutionally regulate every aspect of society, even including those areas traditionally [**228] thought to be reserved exclusively to the several States, such as general criminal and domestic relations law. See supra Part III.C. For example, if section 13981 were an appropriate means to remedy gender-motivated bias in the States, then the federal government could similarly adopt a general federal criminal code to replicate or preempt the existing criminal laws of the fifty States in order to root out any such bias. Presumably, the very same or similar legislative record of section 13981 could support an analogous finding that all state criminal laws are infused with gender bias. See, e.g. , S. Rep. No. 102-197, at 44 ("gender bias permeates the court system and . . . women are most often its victims" (internal quotation omitted)). And many of the same state gender-bias task forces that were cited in section 13981's legislative history also appear to find gender bias in state domestic-relations law. Compare Br. of Appellees Morrison and Crawford at 33 n.12 (citing various state task force conclusions of gender bias in domestic relations law), with S. Rep. No. 102-197, at 43 n.40, and S. Rep. No. 103-138, at 49 n.52 (citing these and other task forces' [**229] conclusions on gender bias in state criminal systems). Thus, if section 13981 were constitutional under Section 5, then presumably the federal government could adopt and enforce a federal divorce and domestic relations code. And federal preemption, or even occupation, of other substantive fields of law, such as tort and contract law, would soon follow. . . .

We cannot conclude, therefore, that section 13981 is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment.

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