The deferential tone is due to the fact that the Court had previously recognized gender based classifications as a suspect class, and that Congress was attempting to remedy the type of sex based stereotypes that the Court had previously found to violate the equal protection clause. Because the Court had already identified the type of discrimination that Congress was attempting to remedy in the FMLA, it appears to be consistent with the congruence and proprtionality analysis of Kimel and Garrett, in which the ADA and the ADEA failed the test because the Court had not previously identified the discrimination that Congress was trying to address.
Rebecca Zietlow -----Original Message----- From: Allan Ides [mailto:[EMAIL PROTECTED] Sent: Wednesday, May 28, 2003 3:28 PM To: [EMAIL PROTECTED] Subject: Re: FMLA abrogation upheld I think your description is accurate & I think there is no doctrinal tension; nor, as I posted on the fedcourts list, do I think there was anything particularly suprising about CJ Rehnquist being in the majority given his more recent views on gender discrimination. I do think, however, that the approach to congruence and proportionality adopted in Hibbs adopted a more deferential tone, though that may be a product of the underlying right having been judicially recognized. Allan Ides ----- Original Message ----- From: Mark Tushnet <[EMAIL PROTECTED]> Date: Wednesday, May 28, 2003 10:57 am 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?
