The Court's opinion in Nevada Dept. of HR v. Hibbs holds that the mandatory leave requirements of FMLA are congruent and proportional to patterns of gender discrimination in employee benefits Congress sought to redress. Hence, Congress could abrogate the states SI by permitting suits for monetary damages against a state. I think it fair to say that CJ Rehnquist's opinion for the Court puts a much softer focus on congruence and proportionality than the Court has in the recent past, particularly on congruence. The provision of FMLA being challenged doesn't pertain directly to gender discrimination at all but to the granting of a benefit to both husbands and wives. In other words, it doesn't prevent discrimination in the awarding of benefits, but mandates the provision of benefit, albeit on a non-discriminatory basis. By treating the conferral of a benefit as a congruent prophylactic measure designed to prevent gender discrimination, the opinion does seem to buck the trend evidenced in more recent 11th Amendment cases by making the congruence analysis somewhat more "Congress friendly." But I doubt this signals a new direction. The CJ emphasizes that the underlying right -- freedom from gender discrimination in employee benefits -- is one involving heightened scrutiny & hence seems to limit the scope of the decision's softer (or alterered) focus to similar judicially recongized classifications and rights, i.e., those requiring heightened scrutiny. So I think it is a little departure, but not a major shift. I must say though that this opinion seems to represent the CJ's most passioned statement against gender discrimination.
Allan Ides Ann Althouse wrote: > 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 �state�s rights� cases. But is it? > > I haven�t read it yet. > > Ann
