Re: FMLA abrogation upheld

[Lynne Henderson]

I  respectfully  don't think that the question of insuperable barrier is resolved yet, even for discrimination against classes of people the Court has recognized as receiving protected statuts under the EP clause.  The treatment of the record on the section 5 issue in *US v. Morrison* by the majority, for example, still is good precedent, and despite the "shared social knowledge" of gender discrimination by state actors (those many gender bias task force reports for example, and years of scholarship and media reports on state-actors) against rape and domestic violence victims, four years of extensive hearings, etc., the majority said it wasn't enough to give victims of gender-based crimes a civil rights cause of action (a cause of action based on prior civil rights laws, I might point out)  You can argue "no state action" but then US v Gues tis no longer good law, etc.  the record on gender bias by states in *Hibbs* is not very strong, and the 9th Circuit really had to work at the gender stuff in a very good opinion (to my mind) by Marsha Berzon, etc.  I think *Hibbs* might be anomalous on the extent of legislative review of the record;  the deference coming perhaps from more judicial sympathy for the situation and the fact that they don't have to worry about the imagined flood of "trivial" cases under FMLA. (Maybe rehnquist, whose daughter is a professional, and who has had female clerks, has more insight into barriers for women;  maybe he switched ot keep Stevens from going after the eleventh amendment cases--but then Stevens would lose O'Connor maybe, etc.) But *Morrison* is in tension with *Hibbs* on extent of review in cases involving heightened scrutiny under  EP clause. It is helpful to have a little more elaboration on what "songruent" and "proportional" mean, after all this time . . . Lynne   [EMAIL PROTECTED]   ----- Original Message ----- From: Marci Hamilton To: [EMAIL PROTECTED] Sent: Wednesday, May 28, 2003 9:34 AM Subject: Re: FMLA abrogation upheld I don't think there is much question that Chief Justice Rehnquist has moderated his views to some degree over time (he gave up on nondelegation), and that being the Chief has contributed to that.  Having read the Hibbs opinion more than once now, I do think that it is a reiteration of the vision and doctrine first set forth in Boerne and completely consistent with the Court's repeated statements that the Civil Rights Acts were solid under it (despite the press's coverage saying Hibbs is a surprise).  The decision is also a repudiation of the viewpoint that the Court in Boerne set up an insuperable burden of proof for Congress.  The Court here essentially took judicial notice of widespread and persisting discrimination based on gender.  An extensive record is only necessary where there is not shared social knowledge of the widespread and persisting discrimination, or where the trend seems to be toward state protection of the right, which brings into question presumptions about discrimination. Marci