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Sisterhood on the Supreme Court

Linda Greenhouse has an interesting column this week on last month's 5-4 decision in which the Roberts Court poked a hole in the Family and Medical Leave Act. Coleman v. Court of Appeals of Maryland involved an FMLA provision requiring employers to provide up to 12 weeks of unpaid leave to employees who can't work because of a health condition. The five arch-conservatives took a statutory provision that was written to address sex discrimination and found a way to rule that it wasn't written to address sex discrimination. As a result, government employers that violate that section of the law have sovereign immunity and cannot be sued for damages.

Greenhouse notes that all three of the Court's women, along with the "the highly evolved" Justice Breyer, recognized that this was clearly a case about sex discrimination. However:

the remarkable thing is that the justices in the majority didn't see it that way. ... Justice Anthony M. Kennedy and his allies denied that this case had anything to do with sex discrimination. It was simply a case about state immunity from suit. The division on the court was thus not primarily one of ideology but of something even more fundamental: perception. ...

Congress debated the Family and Medical Leave Act for eight years before finally enacting it in 1993. ... Some argued that the law should explicitly require pregnancy leave, recognizing women's special need. Others warned that this would enshrine a stereotype, labeling women as more expensive, less desirable employees while in fact men and women take medical leave at almost identical rates.

The ultimate decision was to make the "self-care" medical leave portion of the law gender-neutral, and the legislative history makes the reason clear. "A law providing special protection to women," the House report explained, "in addition to being inequitable, runs the risk of causing discriminatory treatment." In other words, the self-care provision was rooted in Congress's desire to protect women against pregnancy discrimination while at the same time not wanting to inflict a new vulnerability.

Although Justice Ginsburg's dissent gave this essential background in detail, Greenhouse writes that the men in the majority simply ignore it.

The self-care provision "makes no reference to any distinction on the basis of sex," Justice Kennedy said, ignoring Justice Ginsburg's proof of why this was precisely the point. He continued, "There is nothing in particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination." ...

[Justice Ginsburg's] fact- and history-laden dissent in the latest case was, it seems to me, about as persuasive as they come. Justice Ginsburg's typical writing style is spare, but here she spoke with a passion that she usually keeps in check. [I see this] as a declaration that sisterhood on the Supreme Court is, if not powerful, at least keeping score.

This case serves as a reminder that the GOP's war on women is not confined to the political and legislative arenas.