masinter at NSU.ACAST.NOVA.EDU
Wed Sep 29 20:12:18 PDT 1999
DoJ will argue that states have abdicated their responsibility to provide
gender neutral protection from violence, justifying federal action under
section five. If states have discriminated against women by refusing to
treat violence against women on a par with violence against men, doesn't
section five empower Congress to provide a federal remedy?
I think the greater difficulty lies in Rehnquist's College Savings
opinion. I doubt congressional findings on state discrimination against
women re protection from violence can withstand that kind of scrutiny.
For that reason, the Court could affirm without resolving the state action
issue it has so carefully avoided in its treatment of section five power.
Michael R. Masinter 3305 College Avenue
Nova Southeastern University Fort Lauderdale, Fl. 33314
Shepard Broad Law Center (954) 262-6151
masinter at law.acast.nova.edu Chair, ACLU of Florida Legal Panel
On Wed, 29 Sep 1999, Suzanna Sherry wrote:
> I think Brzonkala is going to be a real test of the Court's
> commitment to states' rights and cabining federal power.
> The lack of Commerce Clause power follows pretty easily from Lopez,
> and there are almost certainly 5 votes for the 4th Circuit's
> But in order to affirm, the Court will have to find power
> lacking under the 14th Amendment. The Fourth Circuit relied on
> the 1883 Civil Rights Cases, holding that Congress could not
> regulate private conduct under section 5. Is the Court willing to
> reaffirm the Civil Rights Cases, with all the racial baggage that
> such a move would entail? Or can they find a way to finesse it by
> saying that the problem isn't private action but gender
> discrimination? I think it will be a really hard case to affirm--and
> I think there are at least 3 and maybe as many as 5 Justices who
> would dearly love to do so.
> Suzanna Sherry
> University of Minnesota Law School
> sherry at maroon.tc.umn.edu
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