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January 16, 2003

Supremes Go After Family Leave Act

Dahlia Lithwick at Slate does a good riff on Scalia trying to stage manage a legal attack on the Family and Medical Leave Act. At issue is whether the federal law can force state governments to offer family leave benefits to their employees, and whether those employees can sue their state governments to enforce those rights.

Now, if you read the 14th Amendment-- you know the whole "equal protection" clause -- you'd think Congress have the power to make sure women aren't discriminated against when they have a baby would be a slam dunk.

Okay, okay-- you may have heard about the XIth Amendment (notably passed BEFORE the 14th Amendment) which states that no "suit in law" can be "prosecuted against one of the United States by Citizens of another State." Of course, the kind of civil lawsuits are lawsuits by citizens of their own states, but the Supreme Court in its infinite originalist wisdom has decided to ignore the clear language of the 11th Amendment and block civil rights lawsuits against state governments. The Court has already struck down age discrimination laws and the American With Disabilities Act as applied to states.

But if states can't be sued, doesn't this make the 14th Amendment a dead letter as far as state government action is concerned? Oh, but the federal government can sue the states even if individual citizens can't, the rightwing will argue.

So you lose all right to sue yourself, but John Ashcroft's Justice Department will take care of you.

Makes you feel safe in your rights, doesn't it?

I wrote about the absurdity of the rightwing position after the last major federalist case here.

Posted by Nathan at January 16, 2003 02:27 PM

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Where does the supposed sex discrimination against women come in? I can see men are offered less time off. Is that why women are suffering? Because they get better rights? Perhaps they should give some of them up.

Case is brought by a man not a woman, but it's all about how awful women are discriminated against -- well isn't it always?

Posted by: DavidByron at January 16, 2003 10:54 PM

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