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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