I think the key difference between Rehnquist's opinions in Hibbs and Morrison is that he believed that the FMLA was about sex equality and did not believe that the civil rights provision of VAWA was about sex equality. In previous rulings, the Court had recognized that when states discriminate against women by perpetuating stereotypes about them as primary caregivers who belong outside the public workplace, that violates the equal protection clause. That was the kind of discrimination that Congress was trying to address with the FMLA. In contrast, in Morrison Rehnquist did not appear to believe that violence against women was a civil rights issue rather than a family law issue, even though Congress said that it thought violence against women, or at least the state's failure to protect women againt that violence, was a civil rights issue.
Rebecca E. Zietlow Professor of Law University of Toledo College of Law (419) 530-2872 [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> -----Original Message----- From: Mark Tushnet [mailto:[EMAIL PROTECTED] Sent: Wednesday, May 28, 2003 1:57 PM To: [EMAIL PROTECTED] Subject: Re: FMLA abrogation upheld I'm getting confused on the Morrison/Hibbs point, so here's a post aimed at attempting to straighten out my own thinking. Any corrections/guidance are welcome. 1. Morrison's commerce clause holding: lots of evidence before Congress, etc., but all going to whether violence against women has a substantial aggregate effect on commerce, and therefore irrelevant because violence against women is not a commercial activity subject to the cumulative effects test/principle. 2 (a). Morrison's fourteenth amendment holding: evidence of failures in state law enforcement systems, arguably violating the constitutional rights of victims of gender-based violence, but a remedy aimed at the perpetrators of the violence isn't congruent with the constitutional violations. 2 (b) Morrison's fourteenth amendment holding: Congress has the power under section five to make it criminal -- and so to provide a civil remedy -- for a private person to interfere with rights protected by section one , but gender-based violence doesn't do so. 3. Hibbs's fourteenth amendment holding: sufficient evidence of constitutional violations by state agencies to justify a remedy that is congruent with the violations (targeted at the violators, that is, the states) and proportional to them (that is, not overly broad, etc.) If this understanding of the cases is right, where's the doctrinal tension?
