I agree. ----- Original Message ----- From: "Zietlow, Rebecca E." <[EMAIL PROTECTED]> Date: Wednesday, May 28, 2003 12:35 pm Subject: Re: FMLA abrogation upheld
> 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? >
