I'm not seeing this tension. As I wrote before, the key is not the amount of evidence but that it be evidence of the right thing.
It was not enough in Garrett to have evidence of discrimination against the disabled, even evidence of such discrimination by the state; it was necessary to have irrational discrimination against the disabled, because that is the applicable standard for discrimination to be unconstitutional within the meaning of Section 1, which the Court claimed control over back in Boerne. Discriminating in family leave, giving more to women and being restrictive for men, is rational (though here, surely, clever lawyers have a great opportunity to do some clever work). The evidence in Hibbs was enough because of heightened scrutiny: the same amount of evidence would work because now it was evidence of the right thing. I don't think it takes special lawyer-style cleverness to see Hibbs and Garrett as consistent. On the pregnancy discrimination problem that you raise, that may be one of those areas where the Court might say, we didn't see it on our own, but the congressional record makes it possible to see something that was not "visible to the naked eye," to use a phrase Rehnquist used in Lopez to refer to the ability of Congress to supplement what the Court on its own would be able to see. I imagine the Justices will also be more likely to see the discrimination with the help of congressional findings because the original decision to say that discrimination against the pregnant was not discrimination against women was a fairly embarrassing failure of vision, even for the naked judicial eye. Ann "Jack Balkin" <[EMAIL PROTECTED]> wrote: > I think there is a tension between Garrett and Hibbs, of two sorts. The > first has to do with the nature of the claim, the second is the way that > the record is read. The obvious distinction that sex discrimination is > subject to heightened scrutiny while disability discrimination is not begs > an important question. For what has to be established is that the sort of > discrimination that Congress is trying to remedy in the FMLA is the sort of > intentional sex discrimination that the Court recognizes as subject to > heightened scrutiny. That is, it has to be consistent with Geduldig and > Feeney. If you agree with Geduldig and Feeney (I do not) there is a very > plausible argument (of the sort made by the lower courts) that at most what > Congress was addressing was a case of disparate impact against women, not > invidious sex discrimination, and if there is any intentional > discrimination that the FMLA is responding to, it is against pregnancy, > which is not a protected category. There are, I think, a number of ways to > get around this problem, but Rehnquist does not address them. Indeed, he > dodges the whole set of very tricky questions as to why we know this is sex > discrimination at all given Geduldig and Feeney. > > The elephant in the room in Rehnquist's discussion of Hibbs is the > constitutionality of the application of the Pregnancy Discrimination Act to > state employers. We may assume that after Hibbs (which, BTW, deals with > family leave, not parental leave) that the PDA is constitutional as applied > to state employers. But if that's so, somebody's got some explaining to > do, because the PDA is a pretty direct response to Geduldig. The > legislative record in the PDA may not have been as much "in your face" to > the Court as RFRA was, but it was pretty clear why it was passed. The second tension has to do with the record. I think it's pretty clear > that two very different approaches are being employed in Garrett and > Hibbs. In Hibbs, Rehnquist draws on studies of discrimination by private > employers and federal employers to show that there is discrimination by > state employers, and he uses evidence that states discriminated in awarding > leaves for taking care of children to show that states might also > discriminate in their policies regarding leaves to take care of sick > relatives. In other words, he allows Congress considerable leeway in what > is sufficient evidence of sex discrimination to justify the FMLA. > > Two years ago, Rehnquist wrote the majority opinion in the Garrett case, > which concerned disability discrimination. In that case, he read the record > extremely narrowly. He excluded almost all evidence of discrimination > against the disabled as irrelevant because it was from employers other than > state employers, and because it was evidence of discrimination against the > disabled of a different sort than the precise statutory provision that was > before the Court. He refused to assume that societal discrimination or even > discrimination by local governments suggested that states might also > discriminate, and he refused to accept the proposition that because states > might discriminate against the disabled in some ways they would > discriminate in other ways. In short, he rejected the very sorts of > inferences and arguments that he accepted in Hibbs. Not surprisingly, > Justice Kennedy's dissent calls him on this, and points out that according > to the standards used in Garrett, the case should come out the other way. > > Can very clever lawyers make these two cases live together? Of course they > can. That is what very clever lawyers do. But are these cases in some > tension with each other? Yes, they are. > > Jack Balkin > > > > At 12:00 AM 5/29/2003 -0700, you wrote: >> Date: Wed, 28 May 2003 14:26:09 -0700 >> From: Lynne Henderson <[EMAIL PROTECTED]> >> Subject: Re: FMLA abrogation upheld >> MIME-Version: 1.0 >> Content-Type: text/plain; charset="iso-8859-1" >> Content-Transfer-Encoding: 7bit >> >> In reply to Mark: >> I don't believe I was saying anything different--obviously under the >> *majority's* application of "congruence and proportionality", the fact that >> failure by states didn't justify allowing a cause of action agains tprivate >> parties as a remedy for state discrimminaton is part of the reasoning. But >> look at how the Court evaluated the evidence of state discrimination--it was >> far less deferential, more in the *garrett* mode, than it is in *Hibbs*. If >> the Court had found that providing a cause of action was necessary to >> supplement state failures, more along the lines of earlier cases like SOuth >> Carolina v. Katzenbach or Ore. v. Mitchell on literacy tests, , then it >> would have had to acknowledge the strong evidence of state gender bias. (I >> know, I know, Rehnuquist reads the voting cases differently but they can be >> read broadly---no one found that each state had discriminated against people >> via litercy tests, and even *Morgan* can be read more broadly with a >> straight face) Indeed, Rehnquist's assertion that "congress's findings >> indicate that the problem of discrimination against the victims of >> gender-motivated crime does not exist in all States or even most States" is >> just wrong, along the lines of saying only a "hadful" of examples of state >> discrimination against the disabled existed in *Garrett.* further, there >> is plenty of evidence to believe Viriginia discrimnated against Christy >> Brzonkala, but under *McClesky*, you'd never be able to prove it. drat, >> wrong again! >> *That* is the kind of analysis of the record I was getting at. >> Lynne >> ----- Original Message ----- >> From: "Mark Tushnet" <[EMAIL PROTECTED]> >> To: <[EMAIL PROTECTED]> >> Sent: 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? >>> >> Date: Wed, 28 May 2003 16:44:52 -0500 >> From: Ann Althouse <[EMAIL PROTECTED]> >> Subject: Re: FMLA abrogation upheld >> MIME-Version: 1.0 >> Content-Type: multipart/alternative; >> boundary="Boundary_(ID_zhNL+/aqhHvWlXKU1X1Fuw)" >> >> Yes, that is an important point about the record Congress needs to >> assemble. It seems to me that the Court's critics have made too much about >> the supposedly onerous requirements of a legislative record, both in the >> 14th amendment cases and in the commerce clause cases (see Souter's dismay >> at the insufficiency of a "mountain of evidence" in Morrison). The key is >> not the amount of evidence but that it be evidence of the right thing, as >> Hibbs shows. >> >> Ann
