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Nevada v. Hibbs, a step backward

By Robert S. Sargent Jr.
web posted June 9, 2003

On May 27, in a disappointing decision (Nevada v. Hibbs), the Supreme Court ruled that the Family Medical Leave Act of 1993 (FMLA), a federal law, trumped state sovereignty as expressed in the 11th Amendment: "The judicial power of the United States shall not be construed to extend to any suit on law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." William Hibbs, a Nevada resident and employee of the Nevada Dept. of Human Resources, sued the state of Nevada over violations of FMLA. The fact that he is not a "citizen of another state" seems to grant Mr. Hibbs the right to sue his own state, but jurisprudence says no.

In 1996, in Seminole Tribe v. Florida, Justice Rehnquist, for the majority, wrote: "'We have understood the 11th Amendment to stand not so much for what it says, but for the presupposition…which it confirms.' That presupposition…has two parts: first, that each State is a sovereign entity…and second, that 'it is inherent in the nature of sovereignty not to be amenable to the suit of an individual (my emphasis) without its consent.'" (Internal quotes are from previous decisions.) The "citizen of another state" becomes any "individual." Since an individual cannot sue a state, why can Mr. Hibbs?

In the summary to Nevada v. Hibbs, it says, "Congress may abrogate the State's 11th Amendment immunity from suit in federal court if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under Sec. 5 of the 14th Amendment." This seems reasonable. Sec. 5 says: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." So, if Nevada is violating a part of the 14th Amendment, in this case, the Equal Protection Clause, it can be sued in Federal Court. But what does FMLA, which allows employees to take up to 12 weeks of unpaid leave for serious medical reasons, have to do with the Equal Protection Clause?

The argument here is that states have allowed women to take medical leave, especially when having children, but have not allowed men to have any medical leave. FMLA corrects gender-discrimination, which, so it was argued, violates the Equal Protection Clause. This brings up a couple of questions. Is gender-discrimination a violation of the Equal Protection Clause? Did Congress write FMLA to correct gender-discrimination, or to hand out an entitlement?

We all know the history of the 14th Amendment. It was written to prevent the discrimination of ex-slaves. If a state wrote a law that applied to white people, it must apply to black people. If the state wrote a law applying to disabled white folks, it must apply to disabled black folks. And this is allowed. States that (from the summary) "make age- or disability-based distinctions (can) pass equal protection muster if there is a rational basis for enacting them." But "the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than the rational-basis test." This is "judged under a heightened review standard." That gender-based distinctions somehow come under the Equal Protection Clause, and are somehow more important under our Constitution than other kinds of discrimination is pure political correctness.

To the other question of was it merely an entitlement, Michael Kinsley, in the Washington Post wrote, "Even odder is Rehnquist's insistence that sex discrimination is what the FMLA is all about. Fighting stereotypes about women may have been one reason for guaranteeing this benefit to both genders but the main reason was the benefit itself." (My emphasis) Even liberals can see that this was an entitlement, not a law to prevent gender-based discrimination! Justice Kennedy (joined by Scalia and Thomas) in his dissent, pointed out "…the inescapable fact that the federal scheme (FMLA) is not a remedy (for discrimination) but a benefit program." How could Rehnquist not concur?

Since the mid-nineties, there have been a series of cases in which the Rehnquist Court instructed Congress that it couldn't disregard the 11th Amendment. This was revolutionary in the sense that before these cases, Congress completely disregarded the Amendment knowing the Supreme Court would ignore it with them. In this case, Justice Rehnquist took a step back putting a blot on what was up to now, a proud record of consistency.

Robert S. Sargent, Jr. can be reached at rssjr@citcom.net.

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