In this article, Patrick O'Dare (QMUL) examines the interaction between gendered violence and state-action doctrine through a study of the 2000 Supreme Court ruling in United States v. Morrison.

The term “gendered state violence” raises the question of what is meant by the “state.” In American constitutional law, feminist legal scholars have heavily critiqued the state-action doctrine with its conception that civil rights protected by the U.S. Constitution extends only to governmental abuses as opposed to private actions. As Francis E. Olson notes, these criticisms of private/public distinctions are also shared internationally by feminist legal theorists. The historic categorisation of domestic violence as a “private” matter further raises questions about the implications of the state-action doctrine on feminist legal issues. It is also important to understand the historical development of the state-action doctrine in the context of Black civil rights. In a world where the state has a monopoly on “legitimate” violence, what are the constitutional concerns that arise when the state prevents some violent acts but overlooks others?

This question arose in legal literature in the wake of the Supreme Court’s ruling in United States v. Morrison (2000). Under Section §13981 of the Violence Against Women Act (VAWA), victims of “gender-motivated violence” could sue their attackers in federal court. Christine Brzonkala, then studying at the Virginia Polytechnic Institute (Virginia Tech), alleged that she had been sexually assaulted by two students. The University failed to expel the students and Brzonkala alleged that administrators did not take her report seriously. The case against the University was dismissed by the lower court but Brzonkala’s suit against her attackers eventually reached the Supreme Court, where the Court then ruled that Section §13981 of VAWA was unconstitutional because it targeted private violence and not state action. 

Brzonkala argued that VAWA was an appropriate exercise of Congress’s power to enforce the Equal Protection Clause of the Fourteenth Amendment, which mandates that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” In a 5-4 decision, the conservative majority rejected this argument by focusing on the word “State.” Writing for the Court, Chief Justice Rehnquist argued, “it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.” Rehnquist also reaffirmed Reconstruction-era precedents in which the Court had declared that attempts by the federal government to enforce the civil rights of Black Americans against private actors were unconstitutional, most notably in United States v. Cruikshank (1876) and The Civil Rights Cases (1883).

Cruikshank centred on the 1873 Colfax Massacre in which Louisianan white supremacists targeted and murdered Black people following a disputed election. The Supreme Court narrowly interpreted the scope of the newly created Fourteenth Amendment, which was designed to extend the rights of citizenship to Black people after the Civil War. As the Court wrote, “The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not … add anything to the rights which one citizen has under the Constitution against another.” 

Several years later in The Civil Rights Cases, Justice Bradley adopted the same approach, declaring that the Civil Rights Act of 1875 (which created criminal penalties for private businesses who refuse service on the basis of race) was unconstitutional because Congress lacked this power under the Fourteenth Amendment. For Bradley the Amendment did not abridge, “wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual…” Dissenting in The Civil Rights Cases, Justice Harlan argued that private businesses that acted as public accommodations were an effective part of the state, writing, “a keeper of an inn is in the exercise of a quasi-public employment. The law gives him special privileges, and he is charged with certain duties and responsibilities to the public.”

Writing in 2000, Chief Justice Rehnquist’s opinion in Morrison declared, “The force of the doctrine of stare decisis [the rule of precedent] behind these decisions,” was simply too compelling to rule in Brzonkala’s favour. However, Justice Breyer complained in his dissent that even accepting The Civil Rights Cases as controlling precedent, “The Federal Government’s argument, however, is that Congress used [Section §13981 of VAWA] 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.” Indeed Brzonkala specifically alleged that state actors (her public university) had failed to take her accusations seriously and, in doing so, denied her equal protection. The majority opinion failed to consider how the State effectively condones gender-based discrimination through both action and inaction by selectively punishing only some forms of violence but not others. In doing so it blurs the boundary between private and public acts of violence.

In Morrison, the Court relied on intersecting narratives of racial and gender-based violence as private matters, an evil of civil society divorced from governmental action. This perspective overlooks the complex ways the state shapes our everyday lives. In doing so, it has been used to disregard demands for equal protection from many marginalised groups.

Patrick O'Dare is a PhD student at Queen Mary, University of London, working on presidential power, bureaucracy, and the American political system.