Scalia wants each state to be considered individually, so that the question would be here whether Nevada had a widespread pattern of sex discrimination in parental leave. This kind of particularity wasn't required before, however. There is some connection to the Voting Rights Act case City of Rome, which Boerne characterized as having an appropriately proportional remedy in part because the statute itself had a geographic limitation in it. But Scalia certainly takes this a step further, positing a notion of "no guilt by association" and saying that no state loses its sovereignty because of the constitutional violations of another state. Seemingly, just as we ought to treat people as individuals, we ought not "treat 'the States' as some sort of collective entity." Interesting, but new, isn't it?
Ann
"Lynne Henderson" <[EMAIL PROTECTED]> wrote:
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 -----
From: Ann Althouse <mailto:[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
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 Ñstate?s rightsÇ cases. But is it?
I haven?t read it yet.
Ann
