n1 The criminal provisions of the Violence Against Women Act, which are not at issue here, have been uniformly sustained against constitutional challenge by the courts of appeals. See, e.g., United States v. Gluzman, 154 F.3d 49 (2d Cir. 1998), cert. denied, 119 S. Ct. 1257 (1999); United States v. Wright, 128 F.3d 1274 (8th Cir. 1997), cert. denied, 523 U.S. 1053 (1998); United States v. Bailey, 112 F.3d 758 (4th Cir.), cert. denied, 522 U.S. 896 (1997).

n2 A "crime of violence" is defined in 18 U.S.C. 16 as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another" or "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

n3 The congressional reports noted that the full extent of the problem is difficult to measure. 1990 S. Rep. 31-32. Estimates indicate that only 50% of rapes and fewer than 10% of sexual assaults are reported. See Women and Violence: Hearings Before the Senate Comm. on the Judiciary, 101st Cong., 2d Sess., Pt. 1, at 12 (1990); see also Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 6 (1992) (1992 H. Jud. Hearing).

n4 The legislative record also identified other ways in which gendermotivated violence affects interstate commerce and the national economy. The cost of medical care for victims of domestic violence, for example, was estimated at more than $ 100 million a year. 1990 S. Jud. Hearings 58. And as many as 50% of the women and children who are homeless in this country are fleeing domestic violence. 1990 S. Rep. 37.

n5 The quoted statement is contained in a July 22, 1993, letter, signed or concurred in by 38 state attorneys general, that was submitted to the House Judiciary Committee in support of the Violence Against Women Act. 1993 H. Jud. Hearing 34-36; see also Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong., 1st Sess. 37-38 (1991) (resolution unanimously adopted by National Association of Attorneys General endorsing the 1990 version of the Act). Some state officials opposed the Act. See 1993 H. Jud. Hearing 77-84 (letter and resolution of Conference of Chief Justices opposing civil remedy provision of the Act).

n6 Chief Judge Wilkinson and Judge Niemeyer, both of whom joined the majority opinion, also wrote separate concurrences. See Pet. App. 168a-189a (Wilkinson, C.J., concurring) (concluding that striking down Section 13981 as exceeding Congress's constitutional authority is not improper judicial activism); id. at 189a-209a (Niemeyer, J., concurring) (proposing that in order for a regulation of intrastate activity to be sustained as substantially affecting interstate commerce, "(1) the target of [the regulation] must be interstate commerce, even though it may not be the purpose of the regulation, and (2) the effect that the activity has on interstate commerce must be proximate and not incidental").

n7 The power to regulate intrastate activity that has a substantial effect on interstate commerce is confirmed by Congress's constitutional authority "to make all Laws which shall be necessary and proper for carrying into Execution" its enumerated powers. Art. I, §  8, Cl. 18. See New York v. United States, 505 U.S. 144, 158-159 (1992) ("The Court's broad construction of Congress' power under the Commerce * * * Clause[] has, of course, been guided * * * by the Constitution's Necessary and Proper Clause.").

n8 The testimony specifically noted the impact of domestic violence on the productivity of two major corporations engaged in interstate commerce: Polaroid Corporation and E.I. DuPont de Nemours & Company. See Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong., 1st Sess. 16 (1993) (1993 S. Jud. Hearing) (noting Polaroid employees' "tardiness, poor job performance, increased medical claims [and] interpersonal conflicts in the workplace" as a result of domestic violence); 1990 S. Jud. Hearings 58 (noting DuPont's need to develop programs to deal with the domestic violence that affected many of its employees).

n9 See also, e.g., 1991 S. Jud. Hearing 86 (testimony of Professor Burt Neuborne) (Women "tend to choose their jobs with one eye looking over their shoulder about their safety. They can't work late like men can work; they can't work overtime; they can't take jobs in localities that are considered to be dangerous.").

n10 See also, e.g., 1990 S. Jud. Hearings, Pt. 2, at 80 (letter from International Union, United Automobile Workers of America) ("The threat of violence has made many women understandably afraid to walk our streets or use public transportation.").

n11 See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 33 (1994) (noting the "commuter railroad connecting New York City to Northern New Jersey"); Washington Metro. Area Transit Auth. v. Johnson, 467 U.S. 925, 927 (1984) (noting the "rapid transit system (Metro) for the District of Columbia and the surrounding metropolitan region" of Maryland and Virginia).

n12 Some victims of domestic violence are reduced to property crimes in order to pay for necessities. See Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong., 2d Sess. 30 (1990) (noting that a substantial portion of the women inmates in the Massachusetts prison system are domestic violence victims who were prosecuted for writing bad checks to pay for shelter, groceries, and children's clothing); cf. Perez, 402 U.S. at 156 (noting that Congress's determination that extortionate credit transactions affect interstate commerce was based, in part, on evidence that "the loan shark racket * * * coerces its victims into the commission of crimes against property").

n13 Cf. United States v. Shubert, 348 U.S. 222, 226 (1955) (recognizing that the production, distribution, and exhibition of motion pictures are activities that involve interstate commerce for purposes of the Sherman Act) (citing cases).

n14 Cf. Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 329 (1991) (recognizing that a conspiracy that affects a hospital's "purchases of out-of-state medicines and supplies as well as its revenues from out of state insurance companies would establish the necessary interstate nexus" for purposes of the Sherman Act) (internal quotation marks and citations omitted).

n15 Although the provisions of the Civil Rights Act of 1964 at issue in Heart of Atlanta Motel and McClung contain a jurisdictional element (e.g., a restaurant is subject to the statute only if it "serves or offers to serve interstate travelers or a substantial portion of the food which it serves * * * has moved in commerce," 42 U.S.C. 2000a(c)), the existence of those elements was not central to the Court's analysis in either case. The Court instead focused on whether the underlying regulated activity, the denial of service on account of race, sufficiently affected interstate commerce. See, e.g., McClung, 379 U.S. at 304-305 (observing that "the absence of direct evidence connecting discriminatory restaurant service with the flow of interstate food * * * is not, given the evidence as to the effect of such practices on other aspects of commerce, a crucial matter").

n16 After the Fifth Circuit invalidated the GFSZA for want of findings, Congress amended the statute to add findings about the effect on commerce of gun possession near schools. See 514 U.S. at 563 n.4. Those findings were not based upon a legislative record, however; the government did not rely upon the findings in defending the statute, and this Court did not address or even describe the findings. Ibid.; see id. at 612 n.2 (Souter, J., dissenting) (dismissing "these particular afterthoughts" as "conclusory").

n17 The court of appeals' second rationale was that Section 13981 undermined federalism principles in the same manner as did the GFSZA in Lopez. That aspect of the court's decision is discussed in Part C below.

n18 Section 13981 also precludes supplemental federal jurisdiction over state-law disputes concerning divorce, alimony, equitable distribution of property, and child custody. 42 U.S.C. 13981(e)(4). Nor may an action be removed from state court to federal court based on a claim under Section 13981. 28 U.S.C. 1445(d).

n19 See Fullilove v. Klutznick, 448 U.S. 448, 502-503 (1980) (Powell, J., concurring) (Congress, unlike the courts, "has no responsibility to confine its vision to the facts and evidence adduced by particular parties"; instead, Congress has a "broader mission to investigate and consider all facts and opinions that may be relevant to the resolution of an issue."); see also United States v. Gainey, 380 U.S. 63, 67 (1965) ("significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it").

n20 See 1991 S. Rep. 39 (noting that "witnesses testified that stereotypes like 'she asked for it,' 'she made it up,' or 'no harm was done' are frighteningly common"); id. at 44 (noting the "suspicion" with which rape victims are treated); id. at 47 (noting the pervasive "stereotypes" such as that "people who are raped precipitate [it] in some way, whether it be by dress, having a drink in a bar, accepting a ride in a car or accepting a date").

n21 The record before Congress contained many other examples of bias against victims of gender-motivated violence in state justice systems. See, e.g., 1990 S. Jud. Hearings, Pt. 1, at 65 ("Cultural stereotypes of women's role in marriage and in society daily distort courts' application of substantive law. Women uniquely, disproportionately and with unacceptable frequency must endure a climate of condescension, indifference and hostility.") (quoting Report of the New York Task Force on Women in the Courts, 15 Fordham Urb. L. J. 11, 17-18 (1986-1987)); 1992 H. Jud. Hearing 70 (testimony of a Florida assistant state attorney) ("Since many [police] officers consider domestic violence to be a private matter, something other than real crime, the failure to properly investigate the case is tolerated and, in fact, in some departments it is even encouraged."); Connecticut Task Force on Gender, Justice and the Courts, Report 103-104 (1991) (3% of state judges surveyed "believe that a husband who hits his wife has usually been nagged or otherwise pushed over the edge by her," 6.6% "believe that a woman deserves what she gets if she stays with a man who batters her," and 20.7% "believe that husbands who force sex on their wives are * * * not really rapists"); Illinois Task Force on Gender Bias in the Courts, Gender Bias in the Courts 125 (1990) ("some criminal justice personnel blame female victims for their exercise of judgment, as though they 'assumed the risk' of sexual assault"); Final Report of the Iowa Equality in the Courts Task Force 151 (1993) ("judges may question the character of the [domestic abuse] victim or tend to blame the victim for not leaving the abuser"); Kentucky Task Force on Gender Fairness in the Courts, Equal Justice for Women and Men 29 (1992) (the "judicial response to domestic violence" is influenced by "stereotypical attitudes and beliefs," with "a substantial number of judges" still "down-playing the seriousness of domestic violence and manifesting a tendency to side with the husband"); Louisiana Task Force on Women in the Courts, Final Report 99-100 n.157 (1992) ("attempts to blame the victim for the crime are not uncommon," citing examples of such attitudes by a police officer and a judge); Final Report of the Michigan Supreme Court Task Force on Gender Issues in the Court 35 (1989) ("attitudes [based on stereotypes] limit the effectiveness of the protection provided by law"); Final Report of the Rhode Island Committee on Women in the Courts 36 (1987) ("there are other barriers which prevent victims from obtaining effective relief, barriers created primarily by the attitudes of some judges, court personnel and deputy sheriffs"); Utah Task Force on Gender and Justice, Report to the Utah Judicial Council S-15 (1990) (police officers' "stereotypes about men and women" affect their response to domestic violence). Other state task force reports not specifically cited by Congress made similar findings. See, e.g., Report of the Missouri Task Force on Gender and Justice 37-38 (1993) ("[a] number of witnesses * * * criticized judges' attitudes and the way they handle domestic violence issues," such as "asking the victims what they had done to provoke their partners to hit them" and even "asking women in court if they like being beaten"); Texas Gender Bias Task Force, Final Report 5 (1994) ("Victims of domestic violence face discriminatory attitudes from law-enforcement personnel, prosecutors, judges, and law-makers. Domestic violence is viewed as less serious than other criminal acts, women's experiences are minimized, victims' credibility often is questioned, and battered women are sometimes blamed for causing the abuse.").

n22 Congress recognized that many state officials have made efforts to reform their justice systems. But those efforts do not, as the court of appeals appeared to believe (see Pet. App. 155a), make the continuing discrimination by other state actors within the system any less unconstitutional. Congress found that "despite States' most fervent efforts at legislative reform, these stereotypes persist and continue to distort the criminal justice system's response to violence against women." 1991 S. Rep. 39.

n23 Moreover, even if it were not possible to identify any individual state officials or state employees who acted with discriminatory intent, a systemic bias against women, which the States acknowledged but failed to correct, would violate equal protection. Such a systemic bias is not comparable to the inadvertent disparate impact of a nondiscriminatory system as in Washington v. Davis, 426 U.S. 229 (1976). The systemic bias acknowledged here by the States is necessarily the product of the intentional actions of a multitude of widely dispersed decision-makers. The inability to identify the particular biased actors should not defeat the congressional finding that women have been denied the equal protection of the laws. See id. at 241.

n24 Section 13981 prevents discrimination by, inter alia, enabling victims of gender-motivated violence to avoid resorting to the state justice systems that, in Congress's judgment, would often treat their complaints in a biased manner. Section 13981 remedies discrimination by, inter alia, providing a means of vindication for victims who did resort to state justice systems and who, in Congress's judgment, would often experience bias in those systems.

n25 For similar reasons, Congress could decline to make proof of state discrimination an element of Section 13981's cause of action. Indeed, such proof would have made the federal remedy much more costly and cumbersome for plaintiffs and much more intrusive into state functions. See Flores, 521 U.S. at 526 (the "new, unprecedented remedies" of the Voting Rights Act upheld in South Carolina v. Katzenbach, 383 U.S. 301 (1966), "were deemed necessary given the ineffectiveness of the existing voting rights laws * * * and the slow, costly character of case-by-case litigation").

n26 See 17 Stat. 13 (making it a crime for two or more persons, "either directly or indirectly," to "deprive any person or any class of persons of the equal protection of the laws").

n27 See 18 Stat. 336 (establishing a right in all persons to "the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement," and making it a crime to violate that right).

n28 This case therefore does not present the question framed by the court below (see, e.g., Pet. App. 97a), namely, when, if ever, Section 5 legislation may address private conduct in the absence of a congressional finding of unconstitutional state action. Compare United States v. Guest, 383 U.S. 745, 755 (1966) ("rights under the Equal Protection Clause itself arise only where there has been involvement of the State or one acting under the color of its authority," which "is not to say, however, that the involvement of the State need be either exclusive or direct"), with id. at 762 (Clark, J, concurring) ("§  5 empowers the Congress to enact laws punishing all conspiracies--with or without state action--that interfere with Fourteenth Amendment rights"), and id. at 782 (Brennan, J., dissenting) (same).

n29 For similar reasons, Section 13981 does not suffer from the defects that the Court perceived in the Patent Remedy Act, which was held in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S. Ct. 2199 (1999), not to be permissible Section 5 legislation. In Florida Prepaid, the Court emphasized that "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations." Id. at 2207. Congress did identify a pattern of constitutional violations in enacting Section 13981. Moreover, in Florida Prepaid, the Court noted the Patent Remedy Act's "indiscriminate scope," which would expose a State to liability for "an unlimited range of state conduct." Id. at 2210. Section 13981 does not operate against the States at all. And Section 13981 narrowly defines the private conduct that may give rise to liability. See 42 U.S.C. 13981(d) and (e).