in the supreme court of the united statessblog.s3.amazonaws.com/wp-content/uploads/2011/09/...brief...

No. 10-1016

IN THE

Supreme Court of the United States

DANIEL COLEMAN,Petitioner,

—v.—

MARYLAND COURT OF APPEALS, Frank Broccolina, State CourtAdministrator, Larry Jones, Contract Administrator,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW

IN SUPPORT OF PETITIONER

d

YOSEF J. REIMER

MAURA M. KLUGMAN

MELODY WELLS

KIRKLAND & ELLIS LLP601 Lexington AvenueNew York, New York 10022(212) 446-4800

JON GREENBAUM

Counsel of Record

JANE DOLKART

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1401 New York Avenue, NW, Suite 400

Washington, D.C. 20005(202) [email protected]

Attorneys for Amicus Curiae Lawyers’

Committee for Civil Rights Under Law

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TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. THE CIVIL WAR AMENDMENTS GRANT CONGRESS THE POWER TOENFORCE THOSE AMENDMENTS IN ORDER TO PROTECT THE RIGHTS GUARANTEED UNDER THOSE AMENDMENTS . . . . . . . . . . . . . . . . 4

II. THE COURT MUST EXAMINE THE RIGHT AT ISSUE, THE HISTORY OF STATE UNCONSTI-TUTIONAL CONDUCT, AND DECIDE IF THE CONGRESSIONAL LEGISLATION IS CONGRUENT AND PROPORTIONAL . . . . . . . . . . . . . . . . . . 8

A. Deference to Congress is AppropriateWhere the Right At Issue Is Subject to Heightened Scrutiny Review . . . . 10

B. When The Protected Right Is A Core Fourteenth Amendment Right,It Is Easier To Show A Pattern OfUnconstitutional Conduct By The States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TABLE OF CONTENTSPAGE

iiPAGE

C. Legislation Is Congruent andProportional Where There Is A Need To Protect Rights Subject To Heightened Scrutiny Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

III. CONGRESS PROPERLY EMPLOYED ITS POWER UNDER THE FOUR-TEENTH AMENDMENT WHEN ITENACTED THE SELF-CARE PRO-VISION OF THE FMLA IN ORDER TO PROTECT AGAINST GENDER DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


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Adarand Constructors, Inc. v. Mineta,534 U.S. 103 (2001) . . . . . . . . . . . . . . . . . . . . . . 1

Bd. of Trs. of Univ. of Ala. v. Garrett,531 U.S. 356 (2001) . . . . . . . . . . . . . . . . . . . . .passim

City of Boerne v. Flores,521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . .passim

City of Rome v. U.S.,446 U.S. 156 (1980) . . . . . . . . . . . . . . . . . . . . . . 11

Craig v. Boren,429 U.S. 190 (1976) . . . . . . . . . . . . . . . . . .12, 22, 24

Employment Div., Department of Human Resources v. Smith,494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . 17

Ex parte Com. of Virginia,100 U.S. 339 (1879) . . . . . . . . . . . . . . . . . . . . . .5, 6, 8

Fitzpatrick v. Bitzer,427 U.S. 445 (1976) . . . . . . . . . . . . . . . . . . . . . . 6, 7

Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank,527 U.S. 627 (1999) . . . . . . . . . . . . . . . . . .11, 13, 14

Heller v. Doe,509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . . 13

Katzenbach v. Morgan,384 U.S. 641 (1966) . . . . . . . . . . . . . . . . . .6, 7, 8, 11

TABLE OF AUTHORITIESPAGECases


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Kimel v. Fla. Bd. of Regents,528 U.S. 62 (2000) . . . . . . . . . . . . . . . . . . . . . .passim

Lopez v. Monterey Cnty.,525 U.S. 266 (1999) . . . . . . . . . . . . . . . . . . . . . . 1, 6

Medical Bd. of California v. Hason,537 U.S. 1028 (2002), cert. dismissed, 538 U.S. 958 (2003) . . . . . . . . . . . . . . . . . . . . . . 1

Mississippi Univ. for Women v. Hogan,458 U.S. 718 (1982) . . . . . . . . . . . . . . . . . . . . . . 12

Nevada Dep’t of Human Res. v. Hibbs,538 U.S. 721 (2003) . . . . . . . . . . . . . . . . . . . . .passim

Northwest Austin Mun. Util. Dist. No. 1 v. Holder,129 S. Ct. 2504 (2009) . . . . . . . . . . . . . . . . . . . 1

Oregon v. Mitchell,400 U.S. 112 (1970) . . . . . . . . . . . . . . . . . . . . . . 4, 11

South Carolina v. Katzenbach,383 U.S. 301 (1966) . . . . . . . . . . . . . . .5, 11, 13, 16

Tennessee v. Lane,541 U.S. 509 (2004) . . . . . . . . . . . . . . . . . . . . .passim

Statutes

29 U.S.C. § 2601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

29 U.S.C. § 2612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

29 U.S.C. § 2617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


vPAGE

Other Authorities

100 Cong. 16 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Legislative History of the PregnancyDiscrimination Act of 1978 . . . . . . . . . . . . . . 23

Rep. No. 95-331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

S. Rep. No. 102-68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Constitional Provisions

U.S. CONST. amend. XIII . . . . . . . . . . . . . . . . . . . . 4

U.S. CONST. amend. XIV . . . . . . . . . . . . . . . .4, 5, 8, 10

U.S. CONST. amend. XV . . . . . . . . . . . . . . . . . . . . . . 4, 5


STATEMENT OF INTEREST

The Lawyers’ Committee for Civil Rights UnderLaw (the “Lawyers’ Committee”) submits thisbrief, with the consent of the parties,1 in supportof Petitioner’s argument that Congress properlyexercised its powers under the Fourteenth Amend-ment when it enacted the self-care leave provisionof the Family and Medical Leave Act (“FMLA”).Specifically, the Lawyers’ Committee submits thisbrief to argue that Congress is entitled to sub-stantial deference when Courts review legislationenacted under Section 5 of the Fourteenth Amend-ment that is intended to enforce a core FourteenthAmendment right.

The Lawyers’ Committee was formed in 1963 atthe request of President Kennedy to involve pri-vate attorneys in the effort to ensure the civilrights of all Americans. The Lawyers’ Committeehas been involved as amicus curiae or counsel inseveral cases before the Court involving the scopeof Congress’ legislative power. See, e.g., NorthwestAustin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct.2504 (2009); Tennessee v. Lane, 541 U.S. 509(2004); Nevada Dep’t of Human Res. v. Hibbs, 538U.S. 721 (2003); Medical Bd. of California v.Hason, 537 U.S. 1028 (2002), cert. dismissed, 538U.S. 958 (2003); Adarand Constructors, Inc. v.Mineta, 534 U.S. 103 (2001); Lopez v. MontereyCnty., 525 U.S. 266 (1999). In addition, theLawyers’ Committee frequently advocates in sup-

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1 Counsel for the Lawyers’ Committee authored thisbrief in its entirety. No person or entity other than theLawyers’ Committee, their staff, or their counsel made amonetary contribution to the preparation or submission ofthis brief.

port of the prevention of gender discrimination.Consequently, the Lawyers’ Committee has aninterest in advancing Congress’ power to enactlegislation to protect the Fourteenth Amendment’ssafeguards.

SUMMARY OF ARGUMENT

The power granted to Congress under Section 5of the Fourteenth Amendment permits Congressto enforce the rights guaranteed therein throughthe enactment of “appropriate legislation.” U.S.CONST. amend. XIV, § 5. Congress’ power toensure the Fourteenth Amendment’s constitu-tional guarantees through Section 5 is a “broadpower indeed.” Lane, 541 U.S. at 519. But thisenforcement power is limited, as Congress maynot create rights or change the nature of existingrights. See City of Boerne v. Flores, 521 U.S. 507,519 (1997). As a result, the Court has set forth athree-step inquiry for the Court to follow whendetermining if Congress has properly exercised itsSection 5 powers. First, the Court must identifythe right at issue. Second, the Court must exam-ine whether Congress has identified a history ofunconstitutional conduct by the States that jus-tifies its remedial measure. Third, the Court mustdecide whether the challenged legislation is con-gruent and proportional to the targeted violation.Importantly, the Court defers to Congress when itexercises its Section 5 powers to protect a rightsubject to heightened scrutiny. Indeed, both of theCourt’s recent decisions that considered legisla-tion enacted to protect rights subject to height-ened scrutiny upheld such legislation. SeeTennessee v. Lane, 541 U.S. 509 (2004) (holding

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that Congress’ enactment of Title II of the Amer-icans with Disabilities Act was a valid exercise ofCongress’ Section 5 powers); Nevada Dep’t ofHuman Res. v. Hibbs, 538 U.S. 721 (2003) (findingthat Congress properly exercised its Section 5powers in enacting the family-care leave provisionof the Family and Medical Leave Act).

By enacting the self-care provision of the Fam-ily and Medical Leave Act based on the evidence ofdiscrimination before it, Congress sought toenforce the right to be free from gender discrimi-nation, a right subject to heightened scrutiny.Consequently, the Court should defer to Congress’decision to enact that legislation, and find thatthe self-care provision of the Family and MedicalLeave Act is a valid application of Congress’ Four-teenth Amendment enforcement powers. Indeed,because Congress’ intent to abrogate the States’sovereign immunity is clear and because Congresshas properly sought to enforce the right to be freeof gender discrimination, the Lawyers’ Committeerespectfully urges the Court to uphold Congress’use of its Section 5 powers and reverse the deci-sion below.

ARGUMENT

The question before the Court is whetherCongress acted appropriately pursuant to itsFourteenth Amendment enforcement authority toprevent gender discrimination by abrogatingstates’ sovereign immunity when it enacted 29U.S.C. § 2612(a)(1)(D), the “self-care provision” ofthe Family and Medical Leave Act (“FMLA”). TheLawyers’ Committee respectfully requests that theCourt confirm that the application of the three-

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part standard of review set forth in City of Boernev. Flores, 521 U.S. 507 (1997), requires substantialdeference to Congress’ actions pursuant to Section5 of the Fourteenth Amendment where Congressseeks to protect a right subject to heightenedscrutiny review, and as a result, Congress appro-priately exercised its Fourteenth Amendmentpowers in this case.

I. THE CIVIL WAR AMENDMENTS GRANTCONGRESS THE POWER TO ENFORCETHOSE AMENDMENTS IN ORDER TOPROTECT THE RIGHTS GUARANTEEDUNDER THOSE AMENDMENTS.

In the five years following the Civil War, theUnited States amended the Constitution byadding the Thirteenth, Fourteenth, and FifteenthAmendments. These Amendments (collectively,the “Civil War Amendments”) changed the Con-stitutional landscape through the provision ofnew, far-reaching rights: the Thirteenth Amend-ment abolished slavery, the Fourteenth, inter alia,guaranteed broader citizenship rights and pro-vided for equal protection and due process, andthe Fifteenth prohibited voting discrimination onthe basis of race. U.S. CONST. amend. XIII, § 1;U.S. CONST. amend. XIV, § 1; and U.S. CONST.amend. XV, § 1. Together, the Civil War Amend-ments were directed at ending racial discrimina-tion and preventing States from encroaching onthe rights guaranteed therein. See Oregon v.Mitchell, 400 U.S. 112, 127 (1970). The Civil WarAmendments were indisputably targeted at theStates. For example, the Fourteenth Amendmentlimited the States’ abilities to “make or enforce

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any law which shall abridge the privileges orimmunities of citizens of the United States; norshall any State deprive any person of life, liberty,or property, without due process of law; nor denyto any person within its jurisdiction the equal pro-tection of the laws.” U.S. CONST. amend. XIV, § 1.Similarly, the Fifteenth Amendment provided thatthe rights of citizens to vote “shall not be deniedor abridged . . . by any State on account of race,color, or previous condition of servitude.” U.S.CONST. amend. XV, § 1 (emphasis added).

To ensure that the federal government wouldhave the authority to effectuate the Civil WarAmendments, the Amendments contain explicitlanguage providing that Congress shall havepower to enforce these articles by “appropriatelegislation,” a positive grant of power to Congressabsent in any of the previous Constitutionalamendments. See U.S. CONST. amend. XIII, § 2;U.S. CONST. amend. XIV, § 5; and U.S. CONST.amend. XV, § 2. This language gives Congress the“full remedial powers” necessary to make the pro-tections offered by the Civil War Amendments“fully effective” through the passage of legislation.South Carolina v. Katzenbach, 383 U.S. 301, 326(1966) (quoting Ex parte Com. of Virginia, 100U.S. 339, 345 (1879).).

The Supreme Court has made clear that whenCongress appropriately exercises its FourteenthAmendment enforcement powers to limit stateauthority, Congress is not infringing upon statesovereignty:

The prohibitions of the Fourteenth Amend-ment are directed to the States, and theyare, to a degree, restrictions of State power.

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It is these which Congress is empowered toenforce, and to enforce against State action,however put forth, whether that action beexecutive, legislative, or judicial. Suchenforcement is no invasion of Statesovereignty. No law can be, which the peopleof the States have, by the Constitution of theUnited States, empowered Congress toenact.

Fitzpatrick v. Bitzer, 427 U.S. 445, 454 (1976)(quoting Ex parte Com. of Virginia, 100 U.S. at345); see also Lopez v. Monterey Cnty., 525 U.S.266, 282 (1999) (the Civil War Amendments “bytheir nature contemplate some intrusion intoareas traditionally reserved to the States”). Infact, Section 5 was included in the FourteenthAmendment to grant Congress the broad powersexpressed in the Necessary and Proper Clause.See Katzenbach v. Morgan, 384 U.S. 641, 650 n. 9,(1966) (further explaining that earlier drafts ofthe Fourteenth Amendment employed “necessaryand proper” terminology to describe the scope ofCongressional power under the Amendment).

Consistent with Congress’ ability to protectagainst state intrusion on the rights protected bythe Civil War Amendments, this Court has longheld that state sovereign immunity can be validlyabrogated by Congress under the “appropriate leg-islation” provision of Section 5 of the FourteenthAmendment. Fitzpatrick v. Bitzer, 427 U.S. at 456(“Congress may, in determining what is ‘appro-priate legislation’ for the purposes of enforcing theFourteenth Amendment, provide for private suitsagainst States or state officials which are consti-tutionally impermissible in other contexts.”).

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Congress may do so when it both “unequivocallyintends to do so and acts pursuant to a valid grantof constitutional authority.” Bd. of Trs. of Univ. ofAla. v. Garrett, 531 U.S. 356, 363 (2001) (internalquotation and citation omitted). Indeed, “theEleventh Amendment, and the principle of statesovereignty which it embodies. . . , are necessarilylimited by the enforcement provisions of § 5 of theFourteenth Amendment.” Fitzpatrick 427 U.S. at456 (citation omitted).

Nor is Congress limited to abrogating theEleventh Amendment only when it seeks to makeactivity prohibited by the Fourteenth Amendmentillegal. As the Court has repeatedly reasoned,Congress has the authority both to remedy and todeter violation of rights guaranteed under theFourteenth Amendment by “prohibiting a some-what broader swath of conduct, including thatwhich is not itself forbidden by the Amendment’stext.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81(2000) (reviewing the extent of Congress’ powersunder Section 5 of the Fourteenth Amendment);see also Nevada Dep’t of Human Res. v. Hibbs, 538U.S. 721 (2003) (same); City of Boerne v. Flores,521 U.S. 507, 536 (1997) (same); Katzenback v.Morgan, 384 U.S. at 658, (same). Thus, by enact-ing “appropriate legislation,” Congress may pro-tect the substantive guarantees of the FourteenthAmendment and enact forward-looking legislationto prevent violations of the rights guaranteed bythe Fourteenth Amendment. See Boerne, 521 U.S.at 518 (affirming Congress’ Section 5 powers).

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II. THE COURT MUST EXAMINE THERIGHT AT ISSUE, THE HISTORY OFSTATE UNCONSTITUTIONAL CONDUCT,AND DECIDE IF THE CONGRESSIONALLEGISLATION IS CONGRUENT ANDPROPORTIONAL.

It is well-established that Congressional powerunder Section 5 of the Fourteenth Amendment isbroad in scope:

Whatever legislation is appropriate, thatis, adapted to carry out the objects theamendments have in view, whatever tendsto enforce submission to the prohibitionsthey contain, and to secure to all personsthe enjoyment of perfect equality of civilrights and the equal protection of the lawsagainst State denial or invasion, if notprohibited, is brought within the domainof congressional power.

Ex parte Com. of Virginia, 100 U.S. 339, 345-46(1879). In fact, because Section 5 is a “positivegrant” of legislative power to Congress “[i]t is forCongress in the first instance to determinewhether and what legislation is needed to securethe guarantees of the Fourteenth Amendment[such that] its conclusions are entitled to muchdeference.” Boerne, 521 U.S. at 517, 536, (citingKatzenback v. Morgan, 384 U.S. at 651) (internalquotation marks omitted); see also Tennessee v.Lane, 541 U.S. 509, 518-20 (2004) (“This enforce-ment power, as we have often acknowledged, is abroad power indeed. . . When Congress seeks toremedy or prevent unconstitutional discrimina-tion, Section 5 authorizes it to enact prophylactic

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legislation proscribing practices that are dis-criminatory in effect, if not in intent, to carry outthe basic objectives of the Equal ProtectionClause.”) (internal citation and quotation omit-ted).

But there are limits to that enforcement power.When a Congressional act redefines the Consti-tution, as opposed to enforcing it, Congress hasoverstepped its bounds: “Congress does notenforce a constitutional right by changing whatthe right is. It has been given the power ‘toenforce,’ not the power to determine what consti-tutes a constitutional violation.” Boerne, 521 U.S.at 519. The Supreme Court has given Congress“wide latitude” in determining “the line betweenmeasures that remedy or prevent unconstitutionalactions and measures that make a substantivechange in the governing law.” Id. at 519-20.

In reviewing whether Congress has exceeded itswide latitude in drawing the line between enforce-ment and substantive redefinition, the Court’sBoerne decision and its progeny have set forth athree-step inquiry: (1) the Court must identify theright at issue, (2) examine whether Congress hasidentified a history of unconstitutional conduct bythe States that justifies the remedial measure,and (3) finally decide whether or not the chal-lenged legislation is congruent and proportional tothe targeted violation. See Boerne, 521 U.S. 507;see also Lane, 541 U.S. at 522-530; Garrett 531U.S. at 365-374.

As compared to the Thirteenth (abolition ofslavery) and Fifteenth Amendments (eliminationof racial discrimination in voting), both of whichinvolve narrowly defined rights, the Fourteenth

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Amendment protection of equal protection and dueprocess is more general in nature. The Court, inits Fourteenth Amendment jurisprudence, has rec-ognized that a handful of core Fourteenth Amend-ment rights such as the right to be free from racialand gender discrimination and the right of accessto the courts, are entitled to heightened protectionfrom discriminatory state action. In contrast, theCourt has been deferential to state actors—apply-ing a rational basis test—regarding a host of otheralleged rights that the Court has found are notsubject to heightened scrutiny.

The Court has applied this distinction betweencore Fourteenth Amendment rights and otherrights in the Boerne line of cases: the Court hasshown substantial deference to Congress whenCongress is enforcing a core Fourteenth Amend-ment right and little deference when it has not.The distinction is entirely logical becauseCongress is more likely to be appropriately exer-cising its Fourteenth Amendment authority whenit is protecting a core Fourteenth Amendmentright, and more likely to be redefining the Four-teenth Amendment when it is not.

A. Deference to Congress is AppropriateWhere the Right At Issue Is Subject toHeightened Scrutiny Review.

The Court was clear in Boerne that “[t]he appro-priateness of remedial measures must be consid-ered in light of the evil presented.” 521 U.S. at530. Consequently, the first step the Court takeswhen reviewing Congress’ enactment of remedial,prophylactic legislation requires the Court to“identify the constitutional right or rights that

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Congress sought to enforce” when it enacted thechallenged legislation. Lane, 541 U.S. at 522; seealso Garrett, 531 U.S. at 365 (explaining that thecourt must “identify with some precision the scopeof the constitutional right at issue”); Fla. PrepaidPostsecondary Educ. Expense Bd. v. Coll. Sav.Bank, 527 U.S. 627, 652 (1999) (noting that “thefirst step of the inquiry . . . is to determine whatinjury Congress sought to prevent or remedy withthe relevant legislation”). In fact, in both of thepost-Boerne cases to consider a right subject toheightened scrutiny, the Court deferred toCongress’ findings and upheld the law in ques-tion.2 See Hibbs, 538 U.S. 721 (upholding the fam-ily care provision of the FMLA as a measure toprevent gender discrimination in the workplace);Lane, 541 U.S. 509 (upholding the right of accessto the courts requirement under Title II of theAmericans with Disabilities Act).3

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2 Even prior to Boerne, the Court consistently upheldlegislation intended to protect a right subject to heightenedscrutiny review. See South Carolina v. Katzenbach, 383 U.S.301, 308 (1966) (upholding suspension of literacy tests andsimilar voting requirements under Congress’ parallel powerto enforce the provisions of the Fifteenth Amendment as ameasure to combat racial discrimination in voting); Katzen-bach v. Morgan, 384 U.S. 641, 643-47 (1966) (upholding banon literacy tests that prohibited certain people schooled inPuerto Rico from voting); Oregon v. Mitchell, 400 U.S. 112,117-18 (1970) (upholding 5-year nationwide ban on literacytests and similar voting requirements for registering tovote); City of Rome v. U.S., 446 U.S. 156, 161 (1980) (uphold-ing 7-year extension of the Voting Rights Act’s requirementthat certain jurisdictions preclear any change to a “standard,practice, or procedure with respect to voting.”).

3 The Lane court explained that the Court has upheldTitle II as it applies to the fundamental right of access to the

In Hibbs, the Court upheld the constitutionalityof the family-care provision of the FMLA. TheCourt recognized that in enacting the FMLA,Congress was attempting to prevent gender dis-crimination, thereby triggering a heightened levelof scrutiny. See Hibbs, 538 U.S. at 736.4 The Courtreached a similar conclusion in Tennessee v. Lanewhen it upheld Title II of the Americans with Dis-abilities Act. There, the Court considered whetheror not Title II of the Americans with DisabilitiesAct was a proper exercise of Congress’ Section 5power. The Lane Court observed that Title II “isaimed at the enforcement of a variety of basicrights . . . that call for a standard of judicialreview at least as searching, and in some cases

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courts, which has been recognized, as set forth below, as callingfor a “standard of judicial review at least as searching, and insome cases more searching, than the standard that applies tosex-based classifications” which call for a heightened level ofscrutiny. See Lane, 541 U.S. at 529.

4 States may not use gender-based classificationsunless the classification both “serves important govern-mental objectives” and is “substantially related to theachievement of those objectives.” Hibbs, 538 U.S. at 736(internal quotation and citation omitted). Requiring aheightened level of review for gender-based classificationsprohibits States from employing gender “as an inaccurateproxy for other, more germane bases of classification.” Craigv. Boren, 429 U.S. 190, 198 (1976). Significantly, prior to therecognition that the right to be free from gender discrimi-nation is subject to a heightened level of review, States wereable to use “archaic and overbroad generalizations,” such asthe stereotype that women belonged in the home, to justifylegislation. Id. Now, and as a result of heightened scrutinyreview, a proponent of gender discrimination must establishan “exceedingly persuasive justification” for sex-based clas-sification to be valid. Mississippi Univ. for Women v. Hogan,458 U.S. 718, 724 (1982).

more searching, than the standard that applies tosex-based classifications.” Lane, 541 U.S. at 529.Indeed, the Court placed emphasis on the natureof the right that Congress sought to protect, ulti-mately finding it “clear beyond peradventure thatinadequate provision of public services and accessto public facilities was an appropriate subject forprophylactic legislation.” Id; see also South Car-olina v. Katzenbach, 383 U.S. at 308-313 (uphold-ing the Voting Rights Act of 1965 and deferring toCongress because racial classifications are pre-sumptively invalid).

Notably, where the Court has struck down Sec-tion 5 legislation post-Boerne, the legislation atissue did not seek to protect rights subject toheightened scrutiny. For instance, in Garrett andKimel, the Court reviewed legislation targetedtoward age- and disability-based discrimination,both of which are only subject to rational basisreview. See Garrett, 531 U.S. at 366-67; Kimel,528 U.S. at 86; see also Fla. Prepaid PostsecondaryEduc. Expense Bd. v. Coll. Sav. Bank, 527 U.S.627 (1999) (striking down legislation intended toprotect against patent infringements). Classifi-cations protected only by rational basis review arepermissible “if there is a rational relationshipbetween the disparity of treatment and some legit-imate governmental purpose.” Heller v. Doe, 509U.S. 312, 320 (1993) (citation omitted). Whilenever suggesting that Congress is not entitled todeference when it enacts legislation pursuant toSection 5 of the Fourteenth Amendment, theCourt explained that where a right is only subjectto rational basis review, a States’ legislation con-cerning that right need only be justified by a

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rational explanation, forcing changes to suchstatutes to “come from positive law and notthrough the Equal Protection Clause.” Garrett,531 U.S. at 368.

In sum, the Court has made clear that whenCongress seeks to protect a right subject to height-ened scrutiny, and consequently enacts legislationpursuant to Section 5 of the Fourteenth Amend-ment, it is entitled to substantial deference fromthe Court under step one of the Court’s three-parttest.

B. When The Protected Right Is A CoreFourteenth Amendment Right, It IsEasier To Show A Pattern Of Uncon-stitutional Conduct By The States.

Second, the Court must “examine whetherCongress identified a history and pattern ofunconstitutional [conduct] by the States” that jus-tified the enactment of the remedial measure.Garrett, 531 U.S. at 368. Legislation that “perva-sively prohibits constitutional state action in aneffort to remedy or to prevent unconstitutionalstate action,” and which does not seek to protect aright subject to heightened scrutiny, will not sur-vive the Court’s review if there is no pattern orhistory of the States acting unconstitutionally. SeeBoerne, 521 U.S. at 532-33 (striking down theReligious Freedom and Restoration Act due inpart to the absence of any documented instancesof State constitutional violations) (emphasisadded); see also Fla. Prepaid, 527 U.S. at 640(striking down the Patent and Plant Variety Pro-tection Remedy Clarification Act becauseCongress failed to identify any “pattern of patent

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infringement by the States, let alone a pattern ofconstitutional violations” that justified the Act’sbroad coverage); Kimel, 528 U.S. at 89 (strikingdown the Age Discrimination in Employment Actand holding that Congress failed to identify “anypattern of age discrimination by the States, muchless any discrimination whatsoever that rose tothe level of constitutional violation.”). Indeed, ifthe right at issue is not subject to heightenedscrutiny, the Court will strike down legislationwhere the record falls “far short of even suggest-ing the pattern of unconstitutional discriminationon which Section 5 legislation must be based.”Garrett, 531 U.S. at 370.

Where, however, the Court has already foundunder step one of its three-part test that Congress’legislation seeks to protect a right subject toheightened scrutiny, the Court has not been asdemanding on Congress in determining whetherthere is a history and pattern of unconstitutionalconduct by the States. In Hibbs, the Court statedthat “[b]ecause the standard for demonstratingthe constitutionality of a gender-based classifi-cation is more difficult to meet than our rational-basis test . . . it was easier for Congress to show apattern of state constitutional violations.” Hibbs,538 U.S. at 736. In Lane, the Court explained thatCongress’ enactment of the family-leave provisionof the FMLA was upheld in Hibbs “as a valid exer-cise of Congress’ § 5 power to combat unconstitu-tional sex discrimination, even though there wasno suggestion that the State’s leave policy wasadopted or applied with a discriminatory purposethat would render it unconstitutional. . . .” Lane,541 U.S. at 519. Similarly, in Lane, the Court

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upheld Title II of the ADA because it sought toprotect the fundamental right of access to thecourts with persons with disabilities where theevidence relating to that specific issue consisted ofa report from the United States Commission onCivil Rights, a report from a Congressionallyappointed task force, and anecdotal evidence pro-vided at a Congressional hearing. Lane, 541 U.S.at 527. These determinations in Hibbs and Laneare consistent with the well-established principlethat “[i]n identifying past evils, Congress obvi-ously may avail itself of information from any pro-bative source,” Katzenbach, 383 U.S. at 330,including “statistical, legislative, and anecdotalevidence,” Lane, 541 U.S. at 529, as well as evi-dence of discriminatory effects. Put simply, whenCongress legislates to protect rights subject toheightened scrutiny review, the Court has beendeferential in evaluating whether Congress hasestablished a pattern of unconstitutional conduct.

C. Legislation Is Congruent and Pro-portional Where There Is A Need ToProtect Rights Subject To HeightenedScrutiny Review.

Once the Court has determined the right atissue and examined the pattern and history ofconstitutional violations, the court concludes itsinquiry by deciding whether the challenged leg-islation constitutes “an appropriate response” tothe identified “history and pattern” of unconsti-tutional conduct and resolving whether or not thelegislation is “congruent and proportional to thetargeted violation.” Lane, 541 U.S. at 530; see alsoGarrett, 531 U.S. at 374; Hibbs, 538 U.S. at 737.Put another way, when Congress adopts legisla-

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tion to enforce rights guaranteed by the Four-teenth Amendment, “[t]here must be a congruenceand proportionality between the injury to be pre-vented or remedied and the means adopted [byCongress] to that end.” Boerne, 521 U.S. at 520.

The Supreme Court applied the congruence andproportionality test for the first time in City ofBoerne. In Boerne, Congress made clear its inten-tion to legislatively overrule a constitutionalinterpretation of the Supreme Court and theCourt found that Congress exceeded its powers. In Employment Div., Department of HumanResources v. Smith, 494 U.S. 872 (1990), a dividedSupreme Court had held that the Free ExerciseClause did not protect members of a Native Amer-ican church who lost their jobs and denied unem-ployment benefits because they had used peyote.Congress enacted the Religious Freedom Restora-tion Act of 1993 (RFRA) as a “direct response” tothe Smith decision, and in its findings, stated thatthe Smith decision changed the standard for inter-preting the Free Exercise Clause and thatCongress was restoring the pre-Smith standard.Boerne, 521 U.S. at 515. The Supreme Court foundthat in enacting RFRA, Congress was essentiallytrying to usurp the role of the Court as constitu-tional interpreter:

Our national experience teaches that theConstitution is preserved best when eachpart of the Government respects both theConstitution and the proper actions anddeterminations of the other branches.When the Court has interpreted the Con-stitution, it has acted within the provinceof the Judicial Branch, which embraces

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the duty to say what the law is. Marburyv. Madison, 1 Cranch, at 177. When thepolitical branches of the Government actagainst the background of a judicial inter-pretation of the Constitution alreadyissued, it must be understood that in latercases and controversies the Court willtreat its precedents with the respect duethem under settled principles, includingstare decisis, and contrary expectationsmust be disappointed. RFRA was designedto control cases and controversies, such asthe one before us; but as the provisions ofthe federal statute here invoked arebeyond congressional authority, it is thisCourt’s precedent, not RFRA, which mustcontrol.

Id. at 535-36; Lane, 541 U.S. at 520 (describingthat Congress’ “very purpose” in enacting RFRAwas to work a substantive change in the Consti-tution).

Boerne emphasized, however, that Congress mayact within its powers when it enacts remedial leg-islation under Section 5 to prevent “the mischiefand wrong which the Fourteenth Amendment wasintended to provide against.” Boerne, 521 U.S. at532 (internal quotation and citation omitted).Nowhere is Congress’ power to legislate strongerthan when it legislates to protect rights that aresubject to heightened scrutiny review. Congressmay, for instance, use Section 5 to enact “strongremedial and preventative measures to respond tothe widespread and persisting deprivation of con-stitutional rights resulting from this country’s his-tory of racial discrimination.” See id. at 526.

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Consequently, it is not surprising that the twostatutes the Court has upheld under the congru-ence and proportionality test both sought to protect a class or right that, like racial classifi-cations, is subject to heightened judicial scrutiny.See Hibbs, 538 U.S. at 724 (suspect gender clas-sifications); Lane, 541 U.S. at 533-34 (fundamen-tal right of access to the courts). In fact, sinceBoerne, the only statutes that the Court has foundto be disproportionate to the harms they sought toredress were statutes that sought to protect rightssubject only to rational basis review. See, e.g.,Garrett, 531 U.S. at 367 (holding that the Four-teenth Amendment itself does not require “specialaccommodations for the disabled, so long as[States’] actions towards such individuals arerational”); Kimel, 528 U.S. at 83-84 (holding thatthe Fourteenth Amendment allows the States todiscriminate on the basis of age where the ageclassification is rational). Thus, the Court hasdeferred to Congress’ decision to legislate in orderto protect rights subject to heightened scrutinyreview, and has found that the legislation was“congruent and proportional” to the harm itsought to redress.

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III. CONGRESS PROPERLY EMPLOYED ITSPOWER UNDER THE FOURTEENTHAMENDMENT WHEN IT ENACTED THESELF-CARE PROVISION OF THE FMLAIN ORDER TO PROTECT AGAINSTGENDER DISCRIMINATION.

As set forth above, Congress may enforce rightsprotected by the Fourteenth Amendment and in sodoing, may abrogate the States’ Eleventh Amend-ment immunity. To accomplish this, Congressmust (1) make its intention to abrogate unmis-takably clear in the language of the statute, and(2) act pursuant to a valid exercise of its powerunder Section 5 of the Fourteenth Amendment.See Hibbs, 538 U.S. at 726. The Court has alreadyheld that Congress’ intent to abrogate the States’Eleventh Amendment immunity in enacting theFMLA is “not fairly debatable” because the FMLAenables employees to seek damages “against anyemployer (including a public agency) in any Fed-eral or State court of competent jurisdiction.” Id.(quoting 29 U.S.C. § 2617(a)(2)).5 The ability ofemployees to seek damages also applies to the Act’s self-care provision. See 29 U.S.C.§ 2617(a)(2). The only question before the Court,therefore, is whether Congress acted appropri-ately pursuant to its Fourteenth Amendment pow-ers when it passed the self-care leave provision ofthe FMLA.

The Family and Medical Leave Act of 1993, 29U.S.C. § 2601, et seq. provides employees up to

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5 The Court previously held that the use of identicallanguage in the Age Discrimination in Employment Act of1967 (“ADEA”) satisfied the clear statement requirement.See Kimel v. Fl. Bd. of Regents, 528 U.S. 62, 73-78 (2000).

twelve weeks of unpaid leave for medical reasonsor other qualifying exigencies. 29 U.S.C.§ 2612(a)(1). In enacting the FMLA, Congresssought to minimize “the potential for employmentdiscrimination on the basis of sex by ensuring gen-erally that leave is available . . . on a gender-neu-tral basis[,] and to promote the goal of equalemployment opportunity for women and men. . . .”29 U.S.C. §§ 2601(b)(4) and (5). As the Court rec-ognized in Hibbs, “[t]he FMLA aims to protect theright to be free from gender based discriminationin the workplace.” 538 U.S. at 728. To that end,the family-leave provision of the FMLA at issue inHibbs sought to eliminate gender discriminationby providing that both men and women were enti-tled to take a leave of absence for qualifying fam-ily reasons, as defined in the Act. See 29 U.S.C.2612(a)(1)(C) (referring to care of a gender-neutral“spouse.”) By requiring family leave for both gen-ders, the Court protected women (who are tradi-tionally more likely to take family leave thanmen) from discrimination, while preventing a sit-uation where employers would simply eliminatefamily leave entirely. See Hibbs, 538 U.S. at 728-35.

Applying the three-part standard of review tothe family-care leave provision of the FMLA, theCourt has already concluded that the family-careleave provision is a valid exercise of Congress’Section 5 powers. Hibbs, 538 U.S. at 737(“Congress’ chosen remedy, the family-care leaveprovision of the FMLA, is congruent and propor-tional to the targeted violation.”). In so doing, theCourt was deferential to Congress’ decision toenact legislation pursuant to Section 5 of the

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Fourteenth Amendment, particularly in light ofthe fact that “the standard for demonstrating theconstitutionality of a gender-based classificationis more difficult to meet than our rational-basistest.” Id. at 736. Ultimately, Hibbs recognized thatin enacting the family-care provision of the FMLA,Congress sought to protect against gender dis-crimination by creating “an across-the-board, routine employment benefit for all eligible employ-ees,” thereby ensuring “that family-care leavewould no longer be stigmatized as an inordinatedrain on the workplace caused by female employ-ees, and that employers could not evade leave obli-gations simply by hiring men.” Id. at 737.

The right to be free from gender discrimination,a right unquestionably subject to heightenedscrutiny review, is likewise at issue here. SeeCraig, 429 U.S. at 197. The FMLA’s self-care pro-vision seeks to prevent the very same problemthat the FMLA’s family leave provision sought toprevent: gender discrimination by employersagainst women, including women who are forcedto avail themselves of self-care leave due to preg-nancy and recovery from childbirth. Prior legis-lation, including the Pregnancy DiscriminationAct (“PDA”), did not guarantee job-protected leaveduring pregnancy. The PDA mandated that preg-nancy was to be treated the same as all other tem-porary disabilities. Thus, if an employer did notprovide any temporary disability leave theemployer was not required to provide pregnancyleave. Therefore, before the passage of the FMLA,a pregnant woman who needed to take pregnancy-related leave was not guaranteed that her jobwould still be there upon her return. One solution

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might have been to provide in the FMLA for preg-nancy-specific leave, but as the legislative recordclearly demonstrates, Congress was concernedthat creating a leave requirement that coveredpregnancy only, and not other forms of self-care,would create an incentive for employers to dis-criminate against women, particularly women whowere pregnant or of child-bearing age. See, e.g.,S. Rep. No. 102-68, at 35 (1991) (“Because the billtreats all employees who are temporarily unableto work due to serious health conditions in thesame fashion, it does not create the risk of dis-crimination against pregnant women posed by leg-islation which provides job protection only forpregnancy related disability.”). Instead, by allow-ing self-care leave for both men and women, theFMLA reduces the incentive—at the hiring stage—to discriminate against women who may one dayneed to take leave during pregnancy.6 Thus, theFMLA’s self-care provision prevents the genderdiscrimination that would result if the law onlyallowed women to take self-care recovery for preg-nancy and childbirth.7

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6 Similarly, in the passage of the PDA, Congress choseto treat pregnancy the same as all other temporary disabil-ities rather than provide specifically for pregnancy leave. SeeRep. No. 95-331, p. 4 (1977); Legislative History of the Preg-nancy Discrimination Act of 1978, p. 41 (1980) (CommitteePrint prepared for the Senate Committee on Labor andHuman Resources).

7 The amicus brief submitted by the National Part-nership for Women & Families further articulates the evi-dence necessitating Congress’ enactment of the self-careprovision of the FMLA in order to prevent gender discrimi-nation. The Lawyers’ Committee supports and endorses theposition taken by the National Partnership for Women &Families and their fellow amici.

In light of the right at issue, the application ofthe Boerne three-part test yields the inevitableconclusion that Congress properly abrogated theStates’ sovereign immunity when it passed theself-care provision of the FMLA. First, it is clearthat the right at issue, the right to be free fromgender discrimination, is subject to heightenedscrutiny. See Craig, 429 U.S. at 197. Congress’decision to enact the self-care provision of theFMLA is therefore entitled to deference from theCourt. See, e.g., Hibbs, 538 U.S. 721 (deferring toCongress where Congress sought to protectagainst gender discrimination); Lane, 541 U.S.509 (deferring to Congress where Congress soughtto ensure the fundamental right of access to thecourts). Second, because Congress enacted thisprovision to protect against gender discrimination,it is easier for Congress to demonstrate a historyand pattern of State constitutional violations. See,e.g., Hibbs, 538 U.S. at 736. Here, the legislativerecord contains ample examples of employers dis-criminating against pregnant women. See, e.g.,100 Cong. 16, 19 (1987) (testimony regarding howwomen lost their jobs after becoming pregnant orafter childbirth despite the passage of the PDA).Third, there can be no doubt that the self-careprovision of the FMLA is an “appropriateresponse” to unconstitutional gender discrimina-tion, and is congruent and proportional to the tar-geted violation: where Congress legislates toprotect a right subject to heightened scrutiny, theCourt should defer to Congress’ decision to use itsSection 5 powers to enforce the guarantees of theFourteenth Amendment. See, e.g., Lane, 541 U.S.at 530-31.

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The Lawyers’ Committee thus respectfully sub-mits that the Court should defer to Congress’ deci-sion to pass the self-care provision of the FMLAthrough its powers under Section 5 of the Four-teenth Amendment, and hold that, in light of theheightened scrutiny implicated by the right atissue, Congress properly abrogated the States’Eleventh Amendment sovereign immunity.

CONCLUSION

For all the foregoing reasons, the Lawyers’ Com-mittee respectfully requests that the Courtreverse the judgment of the Fourth Circuit, andhold that Congress validly exercised its Four-teenth Amendment powers when it enacted theself-care provision of the Family and MedicalLeave Act.

Respectfully Submitted,

JON GREENBAUM

Counsel of Record

JANE DOLKART

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1401 New York Avenue, NW, Suite 400

Washington, D.C. 20005(202) [email protected]

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YOSEF J. REIMER

MAURA M. KLUGMAN

MELODY WELLS

KIRKLAND & ELLIS LLP601 Lexington AvenueNew York, New York 10022(212) 446-4800

Attorneys for Amicus Curiae

Lawyers’ Committee for Civil

Rights Under Law

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