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Another interesting--and maybe important--is that the Rehnquist opinion
does not go into the scrutiny of the record made on state sex-based
discrimination in Congress, in contrast to, say *Garrett*. Indeed, the
dissenters are protesting the failure to find indivudal state's
discrimination (Scalia), etc. It may be--who knows--that "formal"
gender and race discrimination are just more taken as givens
by at least 5 of the Justices (Stevens' concurrence is a little
strange on this point). Thus, while the extension of Title VII,
say, to states under sec. 5 was hardly supported by the kind of massive record
the Court has seemed to require since *Boerne*, that won't be
an available defense fo rstates which violate Title VII or, interestingly, the
PDA (despite *Geduldig*)
I don't think this signals much either way on *Grutter* and *Gratz* in
terms of alignments, however.
Lynne
----- Original Message -----
Sent: Tuesday, May 27, 2003 11:01
AM
Subject: Re: Family and Medical Leave Act
upheld
To me, it looks like an easing up on the
Boerne doctrine, as applied in the recent cases (Florida Prepaid, Kimel, and
Garrett). I note that the main dissenting opinion is written by Kennedy, who
wrote Boerne and who now sees Boerne as eroded.
Perhaps Fitzpatrick,
the pre-Boerne abrogation case, drove the result. I had been wondering, in
teaching and writing about the recent �5 cases, how Fitzpatrick (which, in a
unanimous 1976 case written by Rehnquist, upheld abrogation in a sex
discrimination Title VII case) could survive the new �5 treatment. But if you
begin with the proposition that Fitzpatrick is right, you've got to accept
Hibbs, because it is a more narrowly tailored law, focusing exactly on a spot
where sex stereotypes in the workplace are strongest: the intersection between
work and family.
(Does anybody think the voting pattern in Hibbs offers
any basis to speculate about Grutter and Gratz?)
Ann
"Chris
SCHROEDER" <[EMAIL PROTECTED]> wrote:
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
�state?s rights� cases. But is it?
I haven?t read it
yet.
Ann
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