Supreme Court Shows Vulnerability with Close Decisions

By Liu, Elizabeth | National NOW Times, Summer 2000 | Go to article overview

Supreme Court Shows Vulnerability with Close Decisions


Liu, Elizabeth, National NOW Times


During the last term of the 20th century, the Supreme Court made it clear that women's equal rights still need to be guaranteed in our Constitution.

The Supreme Court's ruling that the civil remedy provision of the Violence Against Women Act (VAWA) was unconstitutional is a sharp reminder that the 14th Amendment does not provide a sufficient guarantee of equal protection for women.

Although NOW activists celebrated victories in an abortion rights case, which overturned a state abortion procedures ban, NOW was disappointed that the court ruled in favor of discrimination based on sexual orientation.

The close margin of 5-4 in all three of these cases, coupled with the likelihood that the next president will nominate two, possibly three, Supreme Court justices, indicates that the future of women's rights is at stake in the next presidential election.

In a disheartening loss, the Supreme Court, in Brzonkala v. Morrison, ruled 54 that the provision of VAWA that allows victims of gender-based violence to take private legal action in federal courts was unconstitutional. The petitioner in this case was Christy Brzonkala, a winner of NOW's Woman of Courage Award at this summer's National Conference. Despite extensive Congressional findings that violence against women has an enormous impact on interstate commerce, (for example, in restricting battered women's ability to travel and obtain employment), the Court ruled that the provision could not be sustained under the Commerce Clause. The Court also held that the civil rights remedy could not be sustained under the Equal Protection Clause of the Fourteenth Amendment because the Equal Protection Clause applies only to state action. The NOW Legal Defense and Education Fund argued persuasively that the state's failure to investigate and prosecute violence against women was indeed state action, and produced support from 35 states for the VAWA civil remedy but to no avail.

In Boy Scouts of America v. Dale, the Supreme Court disappointed again by ruling that the Boy Scouts could expel an adult Scout leader simply because he is gay. In another 5 to 4 opinion, the court said the Scouts enjoy a constitutionally protected right of "expressive association" and that this right would be undermined if the organization were forced to accept James Dale as an assistant scoutmaster.

Feminists did win two important reproductive rights cases. In Stenberg v. Carhart the Supreme Court, 5 to 4, struck down Nebraska's abortion procedures statute and exposed the deceptive and misleading nature of so-called partial birth abortion bans.

The court ruled that the Nebraska ban was so broad and vague that constitutionally protected abortion procedures performed before viability could also be prohibited under this law. The court also found that the Nebraska ban violated the Supreme Court precedents Roe v. Wade and Planned Parenthood v. Casey by failing to include an exception to preserve the health of the woman. …

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