Re: Family and Medical Leave Act upheld

[Chris SCHROEDER]

The CJ's opinion applies the "congruent and proportional" analysis of Boerne, Garrett, etc. to the FMLA.  So it is not a departure.  It is the first S.Ct. to uphold a statute under that analysis.  So it is a departure.  Take your pick.   More seriously, there are several items worth immediate note.  In applying that analysis, the opinion depends heavily on the specific context of the FMLA, and I think the opinion will not generate terribly much agreement on what features of the Act were essential to the holding.  Garrett is distinguished, of course, because gender discrimination receives heightened scrutiny, making it easier to find evidence of prior State misbehavior.  (The Court says that Congress had evidence of a "long and extensive history of sex discrimination with respect to leave administration by the States."  The Ninth Circuit opinion suggests the State-specific evidence was pretty skimpy, though.)   Some had thought that the sticking point for the FMLA would be a demonstration that the particular ? and in a certain sense arbitrary ? prophylactic measures it contains, like the 12 week leave period (why not 6 or 9 or 18) were proportional.  Or to turn the issue around, some thought that having to grapple with that question would expose the weaknesses inherent in this kind of analysis.  The Court's opinion, however, did not dwell on the specific prophylactic provisions, but seems to concentrate on the legislation being aimed at the right thing ? the "fault line" between work and family.   Chris. >>> [EMAIL PROTECTED] 05/27/03 12:20PM >>> So the Supreme Court upheld the Family and Medical Leave Act and Chief Justice Rehnquist wrote the majority opinion. (Three dissents anyway, with Justice Kennedy joining Scalia and Thomas.) http://www.nytimes.com/aponline/national/AP-Scotus-Family-Leave.html According to the Associated Press report, this is a departure from recent so-called ³stateΉs rights² cases. But is it? I havenΉt read it yet. Ann