The Supreme Court’s Blindness to Gender Violence

The Supreme Court continues its pushback on women’s rights with the cases Counterman and Rahimi.

Rep. Ayanna Pressley (D-Mass.) announces a joint resolution to affirm the ratification of the Equal Rights Amendment on Jan. 31, 2023 in Washington, D.C. In April, she also filed a discharge petition, which seeks to compel the House of Representatives to vote on H.J. Res. 25 to remove the arbitrary deadline for ratification. (Drew Angerer / Getty Images)

If you thought the Supreme Court’s decision overturning Roe v. Wade was the end of the Court’s war on women, think again. Now gender violence laws are under attack. Case in point: last term’s decision in Counterman v. Colorado striking down a stalking conviction as unconstitutional. This upcoming term, the Court is poised to deal another blow to domestic violence laws, in a case about guns: United States v. Rahimi.

Though the Court drapes its opinions in the language of liberalism—of free speech and rights—the result is the same: The Constitution somehow becomes the enemy of popular laws devised to protect women. The only way to push back against these Court rulings is for Congress to take the steps necessary to affirm the Equal Rights Amendment.

The petitioner in Counterman, Billy Raymond Counterman, sent at least hundreds of Facebook messages to C.W., a local musician in Denver whom he had never met. Some of the messages were deemed “prosaic” by the Court, like when he wrote, “Good Morning Sweetheart.”

Then there were messages showing Counterman was surveilling C.W.: “Was that you in the white Jeep?” and “A fine display with your partner.”

And then there were the death threats: “Fuck off permanently”; “Staying in cyber life is going to kill you”; and “You’re not being good for human relations. Die.”

Not surprisingly, a Colorado jury convicted Counterman of stalking.

But the Supreme Court reversed Counterman’s conviction based on the First Amendment. Traditionally, the First Amendment has had an exception for “true threats.” Many laws criminalize threats: Threaten the president, for example, and that is a federal felony. No one thinks those laws violate the First Amendment. Most of our laws against hate crimes, along with civil rights laws, employ the legal standard of true threats (for instance, a white supremacist saying, “We will kill you if you vote”). Yet the Supreme Court found Colorado’s stalking law unconstitutional because it would “chill” speech.

Though the Court drapes its opinions in the language of liberalism—of free speech and rights—the result is the same: The Constitution somehow becomes the enemy of popular laws devised to protect women.

A March for our Lives demonstration against gun violence in Washington, D.C., on March 24, 2018. (Emilee McGovern / SOPA Images / LightRocket via Getty Images)

A reasonable observer might ask, “Don’t we want to chill threatening speech? Why would the Court protect stalking? Didn’t Counterman abuse his right of speech?”

Unfortunately, the use of the First Amendment to undermine protections for women (and potentially everybody else) is old news. When sexual harassment first emerged, it was considered a trivial matter of “he said, she said” (remember Anita Hill’s treatment in the Clarence Thomas Supreme Court confirmation hearings).

When the Violence Against Women Act was first proposed, the American Civil Liberties Union opposed it, again based on speech (I know, I was there). As many legal scholars now recognize, the First Amendment has become a sword, not a shield—insulating harm, not shielding dissent.

In a partial dissent in Counterman, Justice Sonia Sotomayor explained that stalking is by definition patterned conduct, like domestic violence; each individual instance alone may seem trivial, but when put together they can terrorize. What Sotomayor should have added is that the Supreme Court has been trivializing violence against women for 20 years.

In 2000, in United States v. Morrison, the Court struck down as unconstitutional a federal civil remedy against sexual harassers and assaulters (think disgraced Hollywood mogul Harvey Weinstein) on the grounds that the problem was too big to handle, and the law would only lead to women lying in divorce cases.

In Castle Rock v. Gonzales, the Court held that even if Colorado law re- quired the police to make an arrest in a domestic violence case, the police could choose not to do so.

This upcoming term, the Court is set to hear the Rahimi case, which may make it harder to take guns away from do- mestic abusers. The government charged Zackey Rahimi with violating a decades-old federal law making it a felony to possess a weapon once a court has issued a domestic violence protective order against you. Rahimi is an alleged drug dealer who police say engaged in five shootings in and around Arlington, Texas, in December 2020 and January 2021. When police searched his home, Rahimi admitted that he possessed weapons and that he was the subject of a civil protective order barring him from going near his girlfriend and from possessing a gun.

Yet the Fifth U.S. Circuit Court of Appeals held that the law charging Rahimi with unlawful gun possession violated his constitutional rights—the right to own a weapon under the Second Amendment.

For years, Justice Thomas has argued that the Second Amendment should not be a “second class right,” meaning that it should be applied as strictly as the First Amendment, with few exceptions. With the Court so fixed on the absolute rights conferred by the First Amendment, it is pretty easy to see why many are worried that the Court will uphold the Fifth Circuit’s ruling.

U.S. Circuit Judge James Ho wrote a concurring opinion dismissive of civil protective orders, suggesting that the state could not take away guns unless an individual was convicted of domestic violence. Of course, convictions are rare compared to the volume of protective orders issued, and could take years. We know that the presence of guns in an abusive home is a recipe for murder (of men and women). If the Supreme Court takes the position that guns can be taken away only after a criminal conviction for domestic violence, then the Constitution is on murder’s side.

In a historic move, the California Legislative Women’s Caucus (LWC) has filed an amicus curiae (friend-of-the-court) brief in the case of U.S. v. Rahimi, formally calling on the Supreme Court to uphold civil restraining orders that have proven to be effective in protecting women and reducing gun violence. “Our domestic violence orders and red flag laws save thousands of lives each year. If the Supreme Court were to invalidate these essential gun violence prevention laws, untold numbers of people, especially women, will die,” said state Sen. Nancy Skinner, chair of the LWC.

As I said to the press before my testimony on the ERA in the House of Representatives, “Be afraid.” And that was before Dobbs. And do not expect rebalancing the Court with more seats to be a realistic fix for this state of affairs: Franklin Delano Roosevelt’s own Democrats fought him in 1937 when he sought to change the Court’s composition and add justices to the bench.

The only answer is for women to return to a newly vital project since Dobbs: the Equal Rights Amendment. Sen. Ben Cardin (D-Md.) and Rep. Ayanna Pressley (D-Mass.) have upped the ante, introducing a joint resolution to confirm the amendment’s ratification. We have never been closer.

This story originally appeared in the Fall 2023 issue of Ms. magazine. Join the Ms. community today and you’ll get Ms. issues delivered straight to your mailbox.

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Victoria F. Nourse is a law professor and the director of the Center for Congressional Studies at Georgetown University Law Center. The story of her role in drafting VAWA was told on NPR’s Throughline.