Decided May 15, 2000

[For the facts of this case, and for the Court's analysis of the Commerce Clause issue, see Morrison on the "Powers of Congress" page on this website.]

Chief Justice Rehnquist delivered the opinion of the Court.

     In these cases we consider the constitutionality of 42 U. S. C. §13981, which provides a federal civil remedy for the victims of gender-motivated violence.....


     Because we conclude that the Commerce Clause does not provide Congress with authority to enact §13981, we address petitioners' alternative argument that the section's civil remedy should be upheld as an exercise of Congress' remedial power under §5 of the Fourteenth Amendment. As noted above, Congress expressly invoked the Fourteenth Amendment as a source of authority to enact §13981.

     The principles governing an analysis of congressional legislation under §5 are well settled. Section 5 states that Congress may " `enforce,' by `appropriate legislation' the constitutional guarantee that no State shall deprive any person of `life, liberty or property, without due process of law,' nor deny any person `equal protection of the laws.' " Section 5 is "a positive grant of legislative power" that includes authority to "prohibit conduct which is not itself unconstitutional and [to] intrud[e] into `legislative spheres of autonomy previously reserved to the States.' " However, "[a]s broad as the congressional enforcement power is, it is not unlimited." In fact, as we discuss in detail below, several limitations inherent in §5's text and constitutional context have been recognized since the Fourteenth Amendment was adopted.

     Petitioners' §5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence. This assertion is supported by a voluminous congressional record. Specifically, Congress received evidence that many participants in state justice systems are perpetuating an array of erroneous stereotypes and assumptions. Congress concluded that these discriminatory stereotypes often result in insufficient investigation and prosecution of gender-motivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence. Petitioners contend that this bias denies victims of gender-motivated violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated violence to both remedy the States' bias and deter future instances of discrimination in the state courts.

     As our cases have established, state-sponsored gender discrimination violates equal protection unless it " `serves "important governmental objectives and ... the discriminatory means employed" are "substantially related to the achievement of those objectives." ' " However, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government. Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful."

     Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment's provisions, United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883). In Harris, the Court considered a challenge to §2 of the Civil Rights Act of 1871. That section sought to punish "private persons" for "conspiring to deprive any one of the equal protection of the laws enacted by the State." We concluded that this law exceeded Congress' §5 power because the law was "directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers."

     We reached a similar conclusion in the Civil Rights Cases. In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the §5 enforcement power.

     The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur--and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.

     Petitioners contend that two more recent decisions have in effect overruled this longstanding limitation on Congress' §5 authority. They rely on United States v. Guest, 383 U. S. 745 (1966), for the proposition that the rule laid down in the Civil Rights Cases is no longer good law. In Guest, the Court reversed the construction of an indictment under 18 U. S. C. §241, saying in the course of its opinion that "we deal here with issues of statutory construction, not with issues of constitutional power." Three Members of the Court, in a separate opinion by Justice Brennan, expressed the view that the Civil Rights Cases were wrongly decided, and that Congress could under §5 prohibit actions by private individuals. Three other Members of the Court, who joined the opinion of the Court, joined a separate opinion by Justice Clark which in two or three sentences stated the conclusion that Congress could "punis[h] all conspiracies--with or without state action--that interfere with Fourteenth Amendment rights."  Justice Harlan, in another separate opinion, commented with respect to the statement by these Justices: "The action of three of the Justices who joined the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary."

     Though these three Justices saw fit to opine on matters not before the Court in Guest, the Court had no occasion to revisit the Civil Rights Cases and Harris, having determined "the indictment [charging private individuals with conspiring to deprive blacks of equal access to state facilities] in fact contain[ed] an express allegation of state involvement." The Court concluded that the implicit allegation of "active connivance by agents of the State" eliminated any need to decide "the threshold level that state action must attain in order to create rights under the Equal Protection Clause." All of this Justice Clark explicitly acknowledged.

     To accept petitioners' argument, moreover, one must add to the three Justices joining Justice Brennan's reasoned explanation for his belief that the Civil Rights Cases were wrongly decided, the three Justices joining Justice Clark's opinion who gave no explanation whatever for their similar view. This is simply not the way that reasoned constitutional adjudication proceeds. We accordingly have no hesitation in saying that it would take more than the naked dicta contained in Justice Clark's opinion, when added to Justice Brennan's opinion, to cast any doubt upon the enduring vitality of the Civil Rights Cases and Harris.

     Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves.

     But even if that distinction were valid, we do not believe it would save §13981's civil remedy. For the remedy is simply not "corrective in its character, adapted to counteract and redress the operation of such prohibited [s]tate laws or proceedings of [s]tate officers."  Or, as we have phrased it in more recent cases, prophylactic legislation under §5 must have a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Section 13981 is not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.

     In the present cases, for example, §13981 visits no consequence whatever on any Virginia public official involved in investigating or prosecuting Brzonkala's assault. The section is, therefore, unlike any of the §5 remedies that we have previously upheld. For example, in Katzenbach v. Morgan, 384 U. S. 641 (1966), Congress prohibited New York from imposing literacy tests as a prerequisite for voting because it found that such a requirement disenfranchised thousands of Puerto Rican immigrants who had been educated in the Spanish language of their home territory. That law, which we upheld, was directed at New York officials who administered the State's election law and prohibited them from using a provision of that law. In South Carolina v. Katzenbach, 383 U. S. 301 (1966), Congress imposed voting rights requirements on States that, Congress found, had a history of discriminating against blacks in voting. The remedy was also directed at state officials in those States.

     For these reasons, we conclude that Congress' power under §5 does not extend to the enactment of §13981.

Justice Breyer, with whom Justice Stevens joins, dissenting.

     Given my conclusion on the Commerce Clause question, I need not consider Congress' authority under §5 of the Fourteenth Amendment. Nonetheless, I doubt the Court's reasoning rejecting that source of authority. The Court points out that in United States v. Harris, and the Civil Rights Cases (1883), the Court held that §5 does not authorize Congress to use the Fourteenth Amendment as a source of power to remedy the conduct of private persons.  That is certainly so. The Federal Government's argument, however, is that Congress used §5 to remedy the actions of state actors, namely, those States which, through discriminatory design or the discriminatory conduct of their officials, failed to provide adequate (or any) state remedies for women injured by gender-motivated violence--a failure that the States, and Congress, documented in depth.

     Neither Harris nor the Civil RightsCases considered this kind of claim. The Court in Harris specifically said that it treated the federal laws in question as "directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers."

     The Court responds directly to the relevant "state actor" claim by finding that the present law lacks " `congruence and proportionality' " to the state discrimination that it purports to remedy. That is because the law, unlike federal laws prohibiting literacy tests for voting, imposing voting rights requirements, or punishing state officials who intentionally discriminated in jury selection, is not "directed ... at any State or state actor." Ante, at 26.

     But why can Congress not provide a remedy against private actors? Those private actors, of course, did not themselves violate the Constitution. But this Court has held that Congress at least sometimes can enact remedial "[l]egislation . . . [that] prohibits conduct which is not itself unconstitutional." The statutory remedy does not in any sense purport to "determine what constitutes a constitutional violation."  It intrudes little upon either States or private parties. It may lead state actors to improve their own remedial systems, primarily through example. It restricts private actors only by imposing liability for private conduct that is, in the main, already forbidden by state law. Why is the remedy "disproportionate"? And given the relation between remedy and violation--the creation of a federal remedy to substitute for constitutionally inadequate state remedies--where is the lack of "congruence"?

     The majority adds that Congress found that the problem of inadequacy of state remedies "does not exist in all States, or even most States." But Congress had before it the task force reports of at least 21 States documenting constitutional violations. And it made its own findings about pervasive gender-based stereotypes hampering many state legal systems, sometimes unconstitutionally so. The record nowhere reveals a congressional finding that the problem "does not exist" elsewhere. Why can Congress not take the evidence before it as evidence of a national problem? This Court has not previously held that Congress must document the existence of a problem in every State prior to proposing a national solution. And the deference this Court gives to Congress' chosen remedy under §5 suggests that any such requirement would be inappropriate.

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