Congressional override of Geduldig

[Michael McConnell]

Brian Landsberg writes:

> This assumes that Boerne will cut off any reliance on the Fourteenth
> Amendment.  Given the history of discrimination against pregnant
> women and the relationship of pregnancy and sex, Congress could
> reasonably decide on a prophylactic rule here, even if [according to
> the Court] it could not in RFRA.  As I point out in my recent
> article on prophylactic rules [66 Tenn. L.Rev. 925, 964, n. 275],
> the Boerne Court said: "Legislation which deters or remedies
> constitutional violations can fall within the sweep of Congress
> enforcement power even if in the process it prohibits conduct which
> is not itself unconstitutional and intrudes into  legislative
> spheres of autonomy previously reserved to the states. *

Not unless this "history of discrimination" included unconstitutional
discrimination. If, as the Court has held, it is constitutional to
discriminate on the basis of pregnancy, then a history of such
discrimination does not justify Section Five legislation under the
Boerne interpretation.




-- Michael McConnell (U of Utah)