Section 5 constraints on Congress through the lens of article III and the constitutionality of the Employment Non-Discrimination Act.

• Author: Konnoth, Craig
• Position: COMMENT

INTRODUCTION

The Employment Non-Discrimination Act (ENDA), (1) which would prohibit state and most private employers from discriminating against their employees based on sexual orientation and gender identity, is now stalled in Congress. (2) While this may only be a short-term setback, some worry about the long-term viability of certain ENDA provisions. What Congress eventually gives, courts can take away. (3) Commentators fear that under recent precedent, the Supreme Court will find that Congress has exceeded its enforcement powers under Section 5 of the Fourteenth Amendment and invalidate provisions in ENDA that render states liable to suits by their employees for discrimination. Because the rationale behind the Court's new and evolving Section 5 analysis is unclear, activists are unsure what arguments will convince the Court of the constitutionality of the state-suit provisions.

Section 1 of the Fourteenth Amendment protects individuals from state infringement of constitutional rights. (4) Under Section 5 of the Amendment, Congress can "enforce" Section i by, for example, subjecting states to lawsuits when they violate rights. (5) Under existing jurisprudence, the Court upholds legislation under Section 5 only if it fulfills two conditions. First, Congress cannot expand the scope of a substantive constitutional right beyond the limits that the Court has set for that right. Second, before stripping states of sovereign immunity and rendering a state liable to suit for violations of a certain right, Congress must document evidence that the state has violated the right in the past. Part I of this Comment describes how ENDA meets these two requirements, as Congress has collected evidence of specific incidents of state discrimination against lesbian, gay, and bisexual (LGB) (6) employees that would probably be unconstitutional under the Court's existing antidiscrimination jurisprudence.

However, as Part II explains, key Justices have indicated that Section 5 legislation may have to fulfill a third condition to be constitutional. In recent cases, these Justices have expressed discomfort with legislation that prohibits unconstitutional behavior that states have already forbidden. Congress, they feel, should not displace state schemes, even when there is evidence of discrimination against state employees, if states are already acting to prevent this discrimination. This potential third requirement has hitherto been ignored in the literature. Advocates, however, are concerned that ENDA may flunk this requirement, as many states have already outlawed LGB discrimination.

Commentators have struggled to understand what animates the Court's jurisprudence in the Section 5 arena. After pointing out that text and precedent cannot justify its analysis, some commentators suggest that the Court is merely demoting Congress to the role of a quasi-administrative agency in this area by forcing it to collect evidence to justify its regulations. As I explain, this analogy is problematic for several reasons, including its failure to explain why certain Justices become troubled when Congress displaces existing rights-protecting state legislation with federal legislation.

Yet it is clear that key Justices are seeking to impose certain limits upon Congress's powers vis-a-vis the states and that they are still in the process of defining the structure and logic of these limits. In Part III, I argue that this logic resembles that which courts use to restrain themselves from interfering with the political branches of government. (7) Section 5 requirements that focus on existing state remedies are analogous to Article III mootness constraints: just as courts cannot consider controversies that have been resolved, so too must Congress's power to strip states of sovereign immunity be limited when states themselves are taking steps to remedy the problem. Yet courts will examine a controversy when defendants voluntarily cease their wrongdoing if they are capable of resuming it. Similarly, Congress should be able to remedy unconstitutional discrimination that the discriminator is voluntarily correcting, especially if the discriminator may resume discriminating.

In this Comment, I do not seek to justify the new Section 5 requirement that I identify. Rather, I merely delineate its limits: just as mootness doctrine is limited in its application in certain cases, so too must these restraints on Section 5 legislation be limited when states voluntarily put in place measures that are subject to repeal.

1. THE FIRST TWO CONSTRAINTS: JUDICIAL SUPREMACY AND PROOF OF EXISTING VIOLATIONS

   The Court began developing its new Section 5 jurisprudence in 1997 with City of Boerne v. Flores. (8) In an earlier case, the Court had limited the First Amendment's protections against state infringement of religious practices. (9) Invoking its Section 5 power, Congress sought to overrule the Court by expanding the rights of religious institutions against states. In Boerne, the Court struck down this legislative attempt to expand First Amendment rights beyond the limits that the Court had set. Congress, it held, cannot legislate into existence constitutional rights unrecognized by the Court.

   The Court is unlikely to overturn ENDA by finding that it expands individuals' rights against state sexual orientation discrimination beyond the limits the Court has prescribed. While the Supreme Court has never squarely prohibited state discrimination against LGB employees under the Equal Protection Clause, both the D.C. Circuit and the Supreme Court have long hinted that federal employees may enjoy constitutional protection against dismissal because of their sexual orientation-even when national security concerns are involved. (10) After Lawrence v. Texas, (11) ENDA's position is even more secure. Lawrence's analysis was unclear, and a circuit split exists, as to the level of scrutiny employed in that case. (12) However, if the sodomy statute in Lawrence "furthered no legitimate state interest," therefore flunking even rational basis scrutiny, states would be hard-pressed to justify LGB discrimination in state employment. (13)

   According to the second requirement of" the Court's Section 5 jurisprudence, Congress can subject a state to suit for discrimination only if it collects evidence of past unconstitutional state discrimination. The Court first developed this requirement in Kimel v. Florida Board of Regents, (14) when the Court struck down Age Discrimination in Employment Act (ADEA) (15) provisions that allowed employee suits against states. Subsequently, University of Alabama v. Garrett (16) invalidated key Americans with Disabilities Act (ADA) (17) provisions. Most recently, the Court in Tennessee v. Lane (18) approved ADA provisions that putatively enforced disabled individuals' due process right to court access. Similarly, in Nevada v. Hibbs, (19) the Court found that the state-suit provisions of the Family and Medical Leave Act (FMLA) (20) vindicated state employees' rights against sex discrimination.

   In each of these cases, the Justices siding with the states reviewed the preenactment evidence before Congress and found insufficient proof of state discrimination to warrant legislation stripping states of their sovereign immunity. The Kimel majority emphasized the need to find a "pattern of constitutional violations" that had been committed "'by the States'" (21) and disparaged the actual evidence, which "consist[ed] almost entirely of isolated sentences clipped from floor debates and legislative reports." (22) The Garrett Court criticized Congress's failure to find a "pattern of unconstitutional discrimination" that "deal[t] with the activities of States." (23) Similarly, Justice Kennedy's dissent in Hibbs focused on the "paucity of evidence" of state discrimination. (24)

   ENDA is likely to satisfy this second evidentiary requirement, as well. Congress now benefits from hindsight that it lacked in writing the ADEA, ADA and FMLA--all passed before the Court decided Boerne.(25) With ENDA, Congress has been careful to insert evidence of anti-gay state discrimination into the legislative record, soliciting extensive testimony about LGB employment discrimination by states. For example, it entered into the record a year-long, fifty-state study conducted by the Williams Institute, a think tank on LGBT issues, which concluded that "there is a widespread and persistent pattern of unconstitutional discrimination against LGB[]state government employees, as well as against local government employees." (26) Similarly, Professor William Eskridge testified that history revealed...