* Professor of Law, Loyola Law School, Los Angeles. The author wishes to thank Catherine Fisk, Evan Gerstmann, Eve Hill, David Leonard, and Georgene Vairo for reading and commenting on earlier drafts of this Article and David Clifford for fine research assistance.
1 121 S. Ct. 955 (2001).
2 42 U.S.C.  12111–12117 (1990). The ADA prohibits employment discrimination against the disabled.
3 Section 5 of the Fourteenth Amendment reads: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV,  5.
4 See id.; see, e.g., infra note 5 and accompanying text.
5 See generally Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense. Bd., 527 U.S. 666 (1999); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999); City of Boerne v. Flores, 521 U.S. 507 (1997).
6 The exception was the first case in the series, City of Boerne, 521 U.S. at 507–66. The majority in City of Boerne included Chief Justice Rehnquist, Justice Kennedy (the author), Justice Thomas, and, for most of the opinion, Justice Scalia. These four Justices have been members of the five-Justice majority in the other recent Section 5 cases. See, e.g., Fla. Prepaid, 527 U.S. at 629. The fifth member of that group, Justice O’Connor, dissented in City of Boerne, although she agreed with the majority’s Section 5 analysis. See 521 U.S. at 544, 545 (O’Connor, J., dissenting). The City of Boerne majority also included Justices Stevens and Ginsburg, both of whom have dissented in subsequent Section 5 cases. See id. at 510; see also, e.g., Coll. Sav. Bank, 527 U.S. at 691–94. The line-up in City of Boerne was skewed by the Justices’ disagreement over the proper standard for analyzing the underlying right that Congress was purporting to enforce, the Free Exercise Clause, as incorporated against the states through the Fourteenth Amendment’s Due Process Clause.
7 See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 653 (1966) (holding that the proper standard for reviewing a congressional assertion of its Section 5 authority is whether the Court could perceive a basis for Congress’ decision that enforcement of the Fourteenth Amendment would be furthered by the challenged statute); id. at 653 (stating that the scope of Congress’ discretion under the Section 5 power was as broad as that under the Commerce Clause and other Article I grants of authority when combined with the Necessary and Proper Clause); South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966) (using the same analysis for Congress’ power to enforce the Fifteenth Amendment). The Court has indicated that the inquiry is the same for Congress’ powers to enforce both the Fourteenth and Fifteenth Amendments. See Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 967 n.8 (2001); Morgan, 384 U.S. at 651 (noting the identity of the tests involving the congressional power to enforce the Fourteenth and Fifteenth Amendments and Congress’ Article I powers); see also James Everard’s Breweries v. Day, 265 U.S. 545, 558–59 (1924) (employing the same analysis for Congress’ power to enforce the Eighteenth Amendment).
8 See Garrett, 121 S. Ct. at 963; Kimel, 528 U.S. at 81; Fla. Prepaid, 527 U.S. at 639; City of Boerne, 521 U.S. at 520.
9 See Garrett, 121 S. Ct. 964; Kimel, 528 U.S. at 88–89; Fla. Prepaid, 527 U.S. at 640; City of Boerne, 521 U.S. at 530–32.
10 See, e.g., Kimel, 528 U.S. at 62; City of Boerne, 521 U.S. at 507.
11 521 U.S. at 507.
12 42 U.S.C.  2000bb (1994).
13 See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); see also City of Boerne, 521 U.S. at 519.
14 In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 882, 883 (1990), the Court significantly reduced the scope of the protection granted religious expression under the Free Exercise Clause, holding that a generally applicable law that incidentally burdened religious expression would be subjected only to a very deferential test. In so doing, the Court rejected the test approach set forth in Sherbert v. Verner, 374 U.S. 398 (1963), in which the Court subjected such laws to strict scrutiny, to the extent they substantially burdened religious expression. RFRA attempted to overturn the result in Smith by mandating the strict scrutiny test (narrowly tailored to meet a compelling government interest) before state and local governments could take actions that substantially burdened religious expression. See 42 U.S.C.  2000bb-1.
15 See infra notes 70–83 and accompanying text (discussing the Court’s analysis in City of Boerne).
16 527 U.S. 627, 630 (1999).
17 See infra notes 85–92 and accompanying text (discussing the Court’s analysis in Florida Prepaid).
18 526 U.S. 666, 675 (1999).
19 See id. at 672–75.
20 See generally 528 U.S. 62 (2000).
21 See Kimel, 528 U.S. at 83 (citing Gregory v. Ashcroft, 501 U.S. 452 (1991)). See generally Vance v. Bradley, 440 U.S. 93 (1979); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam).
22 See infra notes 93–103 and accompanying text (discussing the Court’s analysis in Kimel).
23 121 S. Ct. 955, 963, 964 (2000); see, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442–46 (1985) (rejecting the application of heightened scrutiny to discrimination based on mental disability).
24 473 U.S. at 432.
25 See Heller v. Doe by Doe, 509 U.S. 312, 321–28 (1993) (upholding a statute that treated persons with mental retardation less favorably than those with mental illness).
26 See infra notes 104–127 and accompanying text (discussing the Court’s analysis in Garrett).
27 Obviously this is an oversimplification. Still, the basic outlines are now present: City of Boerne considered a fundamental due process right; College Savings Bank considered a right that was too tenuously linked to constitutionally protected “property” interests to be protected by the Due Process Clause; Kimel considered an equal protection argument that the Court had consistently rejected; and, Garrett considered one that the Court normally rejected, but had on one occasion accepted. See generally Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999); City of Boerne v. Flores, 521 U.S. 507 (1997). The situation the Court has not addressed since City of Boerne is legislation addressing an equal protection classification (such as gender or race) in which the Court has required application of strict judicial scrutiny.
28 ENDA was introduced in the 103d Congress. See H.R. 4636, 103d Cong. (1994).
29 See, e.g., infra note 31 and accompanying text.
30 The Republican Platform states that “we do not believe sexual preference should be given special legal protection or standing in law.” Republican Platform 2000, Renewing America’s Purpose Together (2000), at http://www.cnn.com/ELECTION/2000/conventions/ republican/features/platform.00/#19 (last visited Nov. 30, 2001).
31 ENDA was first introduced in the 103d Congress on June 23, 1994 and has been reintroduced every year since in at least one house. Most years the bill has died in committee; however, in 1996 the bill received its first floor vote and came within one vote of passage in the Senate. On July 31, 2001, the bill was reintroduced. As of September 28, 2001, the bill had forty-three co-sponsors in the Senate and 184 in the House, with members of both political parties serving as cosponsors.
32 See United States v. Morrison, 529 U.S. 598, 610 (2000) (striking down 42 U.S.C.  13981 (1994) as exceeding Congress’ power under the Commerce Clause, but noting that the commerce power allows Congress to enact laws regulating activities that substantially affect interstate commerce and determining that the “substantial effects” test authorizes regulation of economic activity that in the aggregate substantially affects interstate commerce); Unites States. v. Lopez, 514 U.S. 549, 559–60 (1995) (striking down the Gun-Free School Zones Act of 1990, but noting the same congressional power as explained in Morrison).
33 See 469 U.S. 528, 555–57 (1985) (holding that generally applicable laws can be constitutionally applied to the states in their capacity as participants in the national economy). The recent “anti-commandeering” cases do not disturb that result; they are more concerned with federal attempts to control the states in their capacities as governments. Compare generally Printz v. United States, 521 U.S. 898 (1997) (striking down federal attempt to direct a state’s law enforcement operations) and New York v. United States, 505 U.S. 144 (1992) (striking down federal attempts to direct a state’s legislative agenda) with Reno v. Condon, 526 U.S. 1111 (1999) (upholding a statute regulating the commerce in driver’s license information, as it did not require the states to regulate their citizens in any particular way).
34 Compare Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975) (holding back pay to be an integral part of the “primary objective” of Title VII).
35 See generally Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). Indeed, the Court has also held that Article I does not empower Congress to make states suable for retrospective relief in their own courts. See Alden v. Maine, 527 U.S. 406, 430–31 (1999).
36 See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that Section 5 gives Congress the power to abrogate state immunity from suits seeking retrospective relief).
37 See S. 1284, 107th Cong.  501 (2001); S. 1276, 106th Cong. (1999); H.R. 2355, 106th Cong. (1999); H.R. 1858, 105th Cong. (1999); S. 869, 105th Cong. (1997); S. 2238, 103d Cong. (1994). Because ENDA is not yet law, this Article will cite from different versions of ENDA, suggesting the implications if an ultimately enacted ENDA statute contained or lacked that particular type of provision.
38 517 U.S. 620, 635–36 (1996) (striking down Amendment 2, a Colorado constitutional provision prohibiting the state or its subdivisions from banning discrimination on the basis of sexual orientation).
39 See Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 963–64 (2001).
40 For convenience, this Article uses the term “homosexual” and “gay” interchangably, to denote gay, lesbian, or bisexual status or conduct (depending on the context). The analysis in this Article does not purport to address the employment rights of transgendered people as those rights might be protected by the Constitution, ENDA, or extant federal antidiscrimination law, most notably Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex.
41 384 U.S 641, 652 (1966).
42 See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 52–53 (1959).
43 Katzenbach v. Morgan, 384 U.S. 641, 652 (1966).
44 Id. at 650 (quoting McCulloch v. Maryland, 17 U.S. 4 Wheat. 316, 421 (1819)); see also id. (“By including section five the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause.”).
45 See South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966); see also Morgan, 384 U.S. at 651 (citing South Carolina for the McCulloch proposition).
46 See Morgan, 384 U.S. at 652–53.
47 See id. at 653–56.
48 See id. at 659, 668–70 (Harlan, J., dissenting).
49 See, e.g., EEOC v. Wyoming, 460 U.S. 226, 259–64 (1983) (Burger, C.J., dissenting) (arguing that application of the Age Discrimination Employment Act to state employers was authorized by neither the Commerce Clause nor as a provision enforcing Section 5 of the Fourteenth Amendment and specifically critiquing the theory that Congress can expand Fourteenth Amendment rights via Section 5); Archibald Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv. L. Rev. 91, 106 (1966) (describing this rationale as “a strikingly novel form of judicial deference to congressional power”).
50 See generally 400 U.S. 112 (1970). Other voting access provisions were upheld by larger majorities in this case.
51 See generally id.
52 See id. at 119–24 (opinion of Black, J.).
53 See id. at 126–30 (opinion of Black, J.).
54 See id. at 130 (opinion of Black, J.).
55 See Oregon, 400 U.S. at 152 (Harlan, J., concurring in part and dissenting in part).
56 See id. at 152, 200 (Harlan, J., concurring in part and dissenting in part); id. at 212 , 213 (Harlan, J., concurring in part and dissenting in part) (concluding that the only possible Section 5 justification for the statute lay in the possibility that states were engaged in invidious discrimination against 18-to-21 year-olds and rejecting that argument).
57 See id. at 152, 204–09 (Harlan, J., concurring in part and dissenting in part).
58 Id. at 281 (Stewart, J., concurring in part and dissenting in part).
59 See id. at 281, 285–92, 294, 296 (Stewart, J., concurring in part and dissenting in part) (viewing Morgan as giving congressional power under Section 5 “the furthest possible legitimate reach”).
60 See id. at 112. Other commentators disagree, finding in Oregon an implicit reaffirmation of Morgan’s broad power. See, e.g., Bonnie I. Robin-Vergeer, Disposing of Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S. Cal. L. Rev. 589, 718–23 (1996).
61 See supra notes 53–56 and accompanying text; see also supra note 58 and accompanying text. Justice Brennan, the author of Morgan, wrote in Oregon for himself and two other Justices and would have upheld the statute’s application to both federal and state elections. See Oregon, 400 U.S. at 229 (Brennan, J., concurring in part and dissenting in part). He characterized Morgan as resting on the superior fact finding capabilities of Congress when compared with those of the judiciary. See id. at 248–50 (Brennan, J., concurring in part and dissenting in part). Justice Douglas would also have upheld the statute in its entirety. See id. at 135 (Douglas, J., concurring in part and dissenting in part). He also relied on Morgan and would have applied that case’s deferential standard of review to Congress’ decision that lowering the voting age was appropriate in order to secure equal protection. See id. at 141–44 (Douglas, J., concurring in part and dissenting in part).
62 See generally City of Rome v. United States, 446 U.S. 156 (1980).
63 See generally City of Mobile v. Bolden, 446 U.S. 55 (1980).
64 See City of Rome, 446 U.S. at 177 (1980).
65 See Laurence Tribe, American Constitutional Law  5–14, at 338 (2d ed. 1988).
66 See City of Rome, 446 U.S. at 117.
67 See 446 U.S. at 173–78. It bears repeating that the Court has consistently viewed the enforcement provisions of the Fourteenth and Fifteenth Amendments to be identical, except of course for the subject matter to which such enforcement legislation can be addressed. See cases cited supra note 7.
68 384 U.S. 641, 650 (1966).
69 See discussion infra Part I.B.
70 See generally City of Boerne v. Flores, 521 U.S. 507 (1997).
71 See id. at 519.
72 See id. at 515 (discussing 42 U.S.C.  2000bb-1 (1994)).
73 Indeed, the Court saw in RFRA an attempt to move the law even beyond the Court’s pre-Smith jurisprudence, as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), toward an even more accommodating attitude toward religion. See City of Boerne, 521 U.S. at 535 (RFRA “imposes in every case a least restrictive means requirement—a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify.”). See generally Employment Div., Dep’t. of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). With respect to the less demanding test, see, e.g., Smith, 494 U.S. at 872. A fuller explanation of the Smith Court’s analysis and rejection of Sherbert’s strict scrutiny test is provided in City of Boerne, 521 U.S. at 512–16.
74 City of Boerne, 521 U.S. at 520.
75 Id. at 530–34.
76 This Article will not focus on the distinction, whatever it may be, between the “congruence” and “proportionality” requirements. As will become clear, both requirements speak to the same basic concern about the fit between the statute’s limits on state action and the constitutional violation it seeks to remedy.
77 See City of Boerne, 521 U.S. at 530–32, 535.
78 See id. at 531.
79 See id. at 532.
80 See id. at 530–32; City of Rome v. United States, 446 U.S. 156, 117, 177 (1980); Tribe, supra note 65.
81 See City of Boerne, 521 U.S. at 533, 534 (stating, after discussing the stringency of the strict scrutiny standard codified in RFRA, that “[w]e make these observations not to reargue the position of the majority in Smith [against using strict scrutiny in this area] but to illustrate the substantive alteration of its holding attempted by RFRA”).
82 See id. at 530, 531.
83 See id. at 532.
84 College Savings Bank, while also rejecting Section 5 as a valid basis for the challenged statute, was decided on an issue preliminary to the City of Boerne analysis. See generally Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 627 (1999); City of Boerne, 521 U.S. 507 (1997). In College Savings Bank, the Court held that the Lanham Act’s prohibition on false advertising did not give businesses a property right in avoiding the unfair competition such false advertising might cause. See 527 U.S. at 673. Because there was no property interest, and thus no right under the Due Process Clause, the Court did not have to consider whether the statute was an appropriate means for enforcing such a right. See id. at 675. In the same term the Court decided Kimel, it also decided United States v. Morrison, 529 U.S. 598 (2000), in which it held, inter alia, that the federal Violence Against Women Act (VAWA) did not constitute appropriate remedial legislation under Section 5. VAWA provided the victim of a gender-based crime of violence a private right of action against her attacker. 42 U.S.C.  13981 (1994). In holding that the statute was not appropriate Section 5 legislation, the Court concluded that it failed the congruence and proportionality test because it was directed not at state action, but at the action of private parties (the attackers). See Morrison, 529 U.S. at 625–26. Because VAWA directed the remedy towards private parties, and the statutes in City of Boerne, Kimel, Florida Prepaid, Garrett, and ENDA itself proscribe a remedy directed at the state actor, Morrison is of very limited relevance. For this reason, this Article will not discuss Morrison any further.
85 See generally 527 U.S. 627 (1999).
86 Id. at 647.
87 See id. at 639.
88 The Court held that mere negligent infringement did not constitute, for due process purposes, a “deprivation” of the “property” that is a patent. See id. at 645.
89 See id. at 640–43.
90 Fla. Prepaid, 527 U.S. at 645–46; see also id. at 647 (“The examples of States avoiding sovereign immunity in a federal-court patent action are scarce enough [in the historical record], but any plausible argument that such action on the part of the State deprived patentees of property and left them without a remedy under state law is scarcer still.”).
91 See id. at 646–47.
92 See id. at 647 (citing City of Boerne’s discussion of City of Rome).
93 See generally 528 U.S. 62 (2000).
94 29 U.S.C.  626(b) (1994); 528 U.S. 62, 66, 67 (2000).
95 See Kimel, 528 U.S. at 82–86.
96 See id. at 83.
97 See id. at 86.
98 See id.
99 See id. at 86–89.
100 See Kimel, 528 U.S. at 86-89
101 Id. at 88; see also Fla. Prepaid Post Secondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 646 (1999) (“Though the lack of support in the legislative record is not determinative . . . identifying the targeted constitutional wrong or evil is still a critical part of our Section 5 calculus because ‘strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.’”) (quoting City of Boerne v. Flores, 521 U.S. 527, 530 (1997)).
102 Kimel, 528 U.S. at 89.
103 Id.; see also id. at 90 (describing the record as being “assorted sentences . . . cobble[d] together”).
104 As noted above, this statement is something of an oversimplification but still essentially accurate. See supra note 27 and accompanying text.
105 See Bd. of Tr. of the Unviv. of Ala. v. Garrett, 121 S. Ct. 955, 967, 968 (2001). Presumably, the Court would also prohibit such a lawsuit against an unconsenting state in state court, given the result in Alden v. Maine, 527 U.S. 706 (1999) (holding that general principles of state sovereign immunity prevent Congress from authorizing private party lawsuits for retrospective relief against unconsenting states in state court when the federal law is based on an Article I power).
106 See Garrett, 121 S. Ct. at 963–64.
107 See 528 U.S. at 83.
108 See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 449, 450 (1985).
109 Compare Garrett, 121 S. Ct. at 963 n.4 (describing Cleburne as based on “the basic principles of rationality review”), with, e.g., Richard B. Saphire, Equal Protection, Rational Basis Review, and the Impact of Cleburne Living Center, Inc., 88 Ky. L. Rev. 591, 607–16 (1999–2000) (discussing the Court’s approach in Cleburne and concluding that the majority applied a test more stringent than the normal rational basis review), and Cleburne, 473 U.S. at 459 (Marshall, J., concurring in the result and dissenting in part).
110 See Garrett, 121 S. Ct. at 964–66.
111 See id. at 965.
112 Id.
113 Id. The Court cited, among others, a state university’s refusal to hire a person because of his blindness and a state agency’s firing of an employee because of his epilepsy. See id. at 965.
114 See Garrett, 121 S. Ct. at 965.
115 See id. at 965–66.
116 See id. at 966.
117 See id.
118 See id. at 966–67 (citing the ADA).
119 See Garrett, 121 S. Ct. at 964; see also id. at 966–67 (stating that “it would be entirely rational (and therefore constitutional)” for a state to refuse to make the “reasonable accommodation[s]” required by the ADA).
120 See id. at 967.
121 See id. (comparing the ADA’s disparate impact test with the constitutional test for equal protection, which requires discriminatory intent, citing Washington v. Davis, 446 U.S. 229, 239 (1976)).
122 See supra note 92 and accompanying text (citing City of Boerne’s and Florida Prepaid’s comparison of the statutes those cases struck down with the statute upheld in South Carolina).
123 See Garrett, 121 S. Ct. at 967.
124 Id.
125 Id.
126 Id. at 968 (Kennedy, J., concurring).
127 Id. (Kennedy, J., concurring).
128 See City of Boerne v. Flores, 521 U.S. 507, 527–29 (1997).
129 Compare e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (scrutinizing the legislative record to determine whether Congress had found a pattern of unconstitutional state discrimination against the elderly), with Katzenbach v. Morgan, 384 U.S. 641, 652–56 (1966) (asking if Congress’ likely conclusions were reasonable).
130 See Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 967 (2001); City of Boerne, 521 U.S. at 532–33; see also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647 (1999) (citing the City of Boerne discussion of the limited nature of the Voting Rights Act’s provisions).
131 See Garrett, 121 S. Ct. at 963–64.
132 See, e.g., id. at 967 (comparing the Voting Rights Act provisions upheld in South Carolina, described as “a detailed but limited remedial scheme” applicable in parts of the country where Congress identified “abundant evidence of States’ systematic denial” of constitutional rights, with the ADA, which it described as a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities”) (quoting ADA, 42 U.S.C.  12101(b)(1) (1994)).
133 See, e.g., Kimel, 528 U.S. at 81; City of Boerne, 521 U.S. at 518.
134 See, e.g., Kimel, 528 U.S. at 81; City of Boerne, 521 U.S. at 536.
135 Compare Robert C. Post & Reva B. Siegel, Equal Protection By Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L. J. 441, 477 (2000) (describing the Court’s current review of Section 5 legislation as “strict scrutiny”). It is unclear whether such a de facto shift in the burden of proof applies also to legislation targeting discrimination on the basis of criteria the Court always considers suspect, most notably race and gender. The Court has not decided a case considering such a statute in the post-City of Boerne period.
136 Versions of ENDA introduced in the past have clearly intended to bring states within their purview in their capacity as employers. For example, S. 1276, introduced in the 106th Congress, explicitly abrogates state sovereign immunity. Section 13(a) provides for remedies at law to the extent available under Title VII, S. 1276  13(b) and defines “employer” to include “a person engaged in an industry affecting commerce (as defined in section 701(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or more employees”), S. 1276  3(3)(A).
137 517 U.S. 620 (1996).
138 See infra notes 160–163 and accompanying text.
139 S. 1284, 107th Cong. (2001); H.R. 2692, 107th Cong. (2001). Unless noted otherwise, citations in this section are to the House and Senate versions of the bill introduced into the 107th Congress.
140 S. 1284; H.R. 2692.
141 Compare 42 U.S.C.  2000e-2(a)(1) (2001) (prohibiting same activity when performed because of the employee’s race, color, religion, sex, or national origin). A provision in ENDA preventing the classification or segregation of employees so as to deprive them of equal employment opportunities also closely tracks its counterpart provision in Title VII. Compare S. 1284,  4(a)(2), and H.R. 2692,  4(a)(2), with 42 U.S.C.  2000e-2(a)(2).
142 Compare S. 1284,  4(f), and H.R. 2692,  4(f) (both disallowing disparate impact claims), with Griggs v. Duke Power Co., 401 U.S. 424, 432–33 (1971) (reading Title VII as authorizing disparate impact claims).
143 See S. 1284,  13(a); H.R. 2692,  13(a). ENDA also includes a provision deeming “a State’s receipt or use of Federal financial assistance for any program” to constitute a waiver of the state’s Eleventh Amendment immunity from lawsuit for the type of relief provided in the statute. S. 1284,  13(b)(1)(A); H.R. 2692,  13(b)(1)(A); see also sources cited infra note 144. This provision, presumably designed as an insurance policy against the Supreme Court holding ENDA to have exceeded Congress’ Section 5 power, raises the question of whether ENDA would be an appropriate expression of Congress’ power to place conditions on its grants of financial assistance to the states. That question is beyond the scope of this Article, which focuses instead on the bill’s grounding in Section 5. The framework for this analysis is provided by South Dakota v. Dole, 483 U.S. 203 (1987). While South Dakota’s exceedingly lenient Spending Clause analysis was joined by seven Justices (Justice O’Connor dissented, see id. at 212, and Justice Brennan did not reach the issue, see id. (Brennan, J., dissenting)), it is at least possible that the Court’s recent enthusiasm for judicially crafted federalism rules could prompt the Court to re-examine that issue. Indeed, a careful reading of South Dakota also suggests that the Court in that case did not definitively decide the contours of the most important factor: the relatedness between the spending condition and the federal interest in the program funded. See id. at 207–08 (stating this factor); id. at 209 & n.3 (refraining from conclusively establishing the degree of relatedness required); see also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999) (acknowledging that South Dakota also indicated that a federal financial inducement to the states could be so coercive as to constitute unconstitutional compulsion). If the Court does re-examine the scope of the Spending Clause, then ENDA’s Section 5 support would become dispositive. At any rate, there may well be particular state programs that in fact do not receive federal financial assistance, and for which ENDA’s Section 5 authorization would constitute the only support for abrogating state sovereign immunity from claims for retrospective relief.
144 See S. 1284, 13(c)(2); H.R. 2692,  13(c)(2).
145 See S. 1284,  8(c); H.R. 2692,  8(c). ENDA also prohibits employers from adopting or instituting quotas based on sexual orientation. See S. 1284,  8(a); H.R. 2692,  8(a).
146 S. 1284,  6; H.R. 2692,  6.
147 See S. 1284,  9; H.R. 2692,  9 (“This Act shall not apply to a religious organization.”). Religious organizations are defined to include educational institutions either owned or controlled by religious associations or societies or whose curriculum is directed toward religious propagation. See S. 1284,  3(8); H.R. 2692,  3(8). By contrast, Title VII exempts religious organizations (defined similarly as in ENDA) only from its prohibition on religious discrimination. See 42 U.S.C.  2000e-2(e) (1994).
148 See S. 1284,  10; H.R. 2692,  10.
149 See S. 1284,  3(4)(A); H.R. 2692,  3(4)(A).
150 See S. 1284,  11(a); H.R. 2692,  11(a).
151 See S. 1284,  12(a)(1)(A); H.R. 2692,  12(a)(1)(A).
152 121 S. Ct. at 963.
153 Id. (citing Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000); City of Boerne v. Flores, 521 U.S. 507, 536 (1997)).
154 121 S. Ct. at 963 (quoting City of Boerne, 521 U.S. at 536).
155 358 U.S. 1, 18 (1958). Compare, e.g., id., with Katzenbach v. Morgan, 384 U.S. 641, 648–49 (1966)(“A construction of  5 that would require a judicial determination that the enforcement of the state law precluded by Congress violated the Amendment, as a condition of sustaining the congressional enactment, would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment. It would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the majestic generalities of  1 of the Amendment.”) (citation omitted).
156 See generally City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).
157 121 S. Ct. at 964 (quoting Cleburne, 473 U.S. at 448). The action challenged in Cleburne was a city ordinance requiring a special permit for a group home for the mentally disabled but which did not require such a permit for other types of group homes.
158 Id. at 964–66.
159 See generally 517 U.S. 620 (1996).
160 See generally Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Comment. 257 (1996).
161 See generally Akhil Reed Amar, Attainder and Amendment 2: Romer’s Rightness, 95 Mich. L. Rev. 203 (1996).
162 See generally, e.g., Roderick M. Hills, Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar’s Analysis of Romer, 95 Mich. L. Rev. 236 (1996).
163 See generally, e.g., Jerald W. Rogers, Note, Romer v. Evans: Heightened Scrutiny Has Found a Rational Basis—Is The Court Tacitly Recognizing Quasi-Suspect Status for Gays, Lesbians, and Bisexuals?, 45 U. Kan. L. Rev. 953 (1997).
164 This is not to suggest that such readings are “incorrect,” in the sense that they are logically unsupportable, historically inaccurate, or fail to lead to a coherent understanding of the Constitution. It is to suggest, however, that such readings are not the ones most likely to be adopted by the Court if and when it needs to characterize Romer when dealing with a future challenge to ENDA. If Garrett is any indication, the Court will simply read Romer very narrowly (as Garrett Court read Cleburne). On the other hand, it should be noted that there is at least some difference in the tones of Cleburne and Romer. While Cleburne purported to be a simple application of the rational basis test (though with the unusual result that the statute failed the test), the Romer opinion continually notes the uniqueness of Amendment 2 and the harm it does to the equal protection principle. See Romer, 517 U.S. 620, 627 (1996) (“Sweeping and comprehensive is the change in legal status effected by [Amendment 2].”); id. (“The change that Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching.”); id. at 629 (“Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government.”); id. at 632 (“Amendment 2 fails, indeed defies, even th[e] conventional inquiry [required by equal protection, into the relationship between statutory ends and means]. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and . . . invalid form of legislation.”); id. at 633 (“Amendment 2 confounds th[e] normal process of judicial review [under the Equal Protection Clause].”); id. (“The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”); id. (“It is not within our constitutional tradition to enact laws of this sort.”). The point, then, is that it is always possible that the Court, in construing Romer in the future, may well point to the uniqueness of Amendment 2 as requiring a unique response, for example, the enunciation of an “anti-caste” principle. See id. at 635 (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else . . . . A State cannot so deem a class of persons a stranger to its laws.”).
165 The classic example of such a progression is in gender, where the Court’s first decision striking down a gender classification, Reed v. Reed, 404 U.S. 71, 76, 77 (1971), was based on the rational basis standard. Within two years, four members of the Court had argued that gender should be a suspect classification, see Frontiero v. Richardson, 411 U.S. 677, 688 (1973), and within five years a majority had accepted intermediate or quasi-suspect status for gender, see Craig v. Boren, 429 U.S. 190, 197–99 (1976). The Court, however, has not recognized a new suspect or quasi-suspect class since the 1970s, preferring instead to strike laws down under the rational basis test. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442–47 (1985) (refusing to accord suspect class status to the mentally retarded, but striking down a law that burdened that group on the ground that it failed the rational basis test). But see United States v. Virginia, 518 U.S. 515, 553 (1996) (using the intermediate scrutiny test to strike down a gender classification, but arguably redefining that test to require more stringent scrutiny).
166 Compare cases cited supra at note 165 and accompanying text (tracing the progression of the Court’s treatment of gender classifications).
167 Details about the referendum, and the course of the Romer litigation, can be found in Rogers, supra note 163, at 954–56.
168 Colo. Const. art. II,  30b, repealed by Romer, 517 U.S. 620 (1996).
169 See Romer, 517 U.S. at 631–35.
170 See id. at 633.
171 Id. at 632–33.
172 See id. at 632.
173 Id. at 633; see also id. at 626–31 (characterizing the effect of Amendment 2 as an exclusion of homosexuals from the right to equal treatment by the government in a broad variety of contexts).
174 Romer, 517 U.S. at 633.
175 Id. (“A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”).
176 See id. at 632.
177 See id.
178 See id.
179 See Romer, 517 U.S. at 632.
180 See supra notes 160–165 and accompanying text.
181 Obviously, this is an extreme over simplification. As will be clear shortly, a major difference between the violation reflected in Amendment 2 and the discrimination outlawed by ENDA is that the former is much broader, stretching across, as the Court described, “an almost limitless number of transaction and endeavors that constitute ordinary civic life in a free society.” Romer, 517 U.S. at 631.
182 See id. at 632; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 443, 444 (1985).
183 See Romer, 517 U.S. at 632; Cleburne, 473 U.S. at 443–47.
184 121 S. Ct. at 964.
185 Id.
186 Indeed, Congress made a finding to this effect. See 42 U.S.C.  12101(a)(9) (1994) (“[T]he continuing existence of unfair and unnecessary discrimination [against people with disabilities] . . . costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”).
187 Although the military is a possible exception, ENDA is inapplicable to the military. See infra note 229 and accompanying text.
188 See infra notes 206–211 and accompanying text.
189 121 S. Ct. at 963 (citing City of Boerne v. Flores, 521 U.S. 507, 520 (1997)).
190 This, of course, is not surprising; such legislation would be doing nothing more than prohibiting legislatively the sort of conduct that the Court has already held to be a violation of the Constitution. See supra note 155 and accompanying text.
191 See generally, e.g., Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc) (upholding dismissal of lesbian from attorney general’s office because of certain conduct, including her participation in a same-sex marriage ceremony, which the Attorney General thought might affect the efficiency of the office’s performance). These cases raise complicated issues of free speech and association law. For an examination of these issues in the employment context, see generally Marvin Hill & Emily Delacenseri, Procrustean Beds and Draconian Choices: Lifestyle Regulations, and Officious Intermeddlers -- Bosses, Workers, Courts and Labor Arbitrators, 57 Mo. L. Rev. 51 (1992); see also id. at 140, 141 (summarizing caselaw and suggesting appropriate rules).
192 See generally, e.g., Doe v. Gates, 981 F.2d 1316 (D.C. Cir. 1993) (involving an employee who lied to the CIA about his sexual orientation); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) (citing problem that would arise with a law enforcement officer potentially engaging in illegal conduct).
193 Very often courts have simply presumed that a person’s homosexual orientation indicates a likelihood that she will engage in homosexual sex. See, e.g., Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989). The presumption that homosexual orientation infers homosexual conduct is, of course, the underlying principle of the military’s current “Don’t Ask, Don’t Tell” policy. See Diane H. Mazur, Word Games, War Games, 98 Mich. L. Rev. 1590, 1598–1600 (2000) (reviewing Janet E. Halley, Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy (1999)).
194 See, e.g., Michele L. Booth, Shahar v. Bowers: Is Public Opinion Transformed into a Legitimate Government Interest When Government Acts as Employer?, 78 B.U. L. Rev. 1235, 1260 (1998) (citing evidence that common sexual activities between lesbians are often not prohibited by sodomy laws); id. at 1262 (citing evidence that most heterosexuals have engaged in illegal sexual activities).
195 10 U.S.C.  654 (1994).
196 See Mazur, supra note 193, at 1595.
197 See, e.g., id. at 1598–1600.
198 See, e.g., Able v. United States, 88 F.3d 1280, 1298 (2d Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 929 (4th Cir. 1996) (en banc); Hoffman v. United States, 1997 WL 136418, *3 (E.D. Pa. 1997); see also, e.g., Steffan v. Perry, 41 F.3d 677, 688–93 (D.C. Cir. 1994) (upholding, under pre-”Don’t Ask, Don’t Tell” policy, a dismissal of a midshipman at the Naval Academy because of his statement that he was a homosexual on the ground that his statement of homosexual orientation provided a rational basis for the military to presume that he was likely to engage in homosexual conduct). See generally, e.g., Thorne v. Dep’t. of Def., 945 F. Supp. 924 (E.D. Va. 1996).
199 See generally Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding a state law criminalizing sodomy). However, in that case the Supreme Court dealt only with the argument based in substantive due process, namely, as framed by the majority, the argument that the right to privacy found in the due process clause included the right to engage in homosexual sodomy. See id. at 190, 191. It explicitly refrained from considering the equal protection issue. See id. at 196 n.8.
200 This issue would not arise at all in a state that did not have a sodomy law.
201 See sources cited infra note 287.
202 See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 12 (1992) (upholding California’s Proposition 13 property tax statute based, in part, on the relationship between differential tax treatment of newly acquired and long-held property on a possible state interest in neighborhood stability); Ry. Express Agency v. New York, 336 U.S. 106, 109–10 (1949) (upholding differential treatment of truck signage advertising the truck owner’s own products and signage rented out to third parties based on the possible safety differences traffic experts may have discerned between them).
203 See supra note 199 and accompanying text.
204 For a discussion of the relationship between status and conduct in the context of sexual orientation, see, for example, Jay Michaelson, On Listening to the Kulturkampf, or How America Overruled Bowers v. Hardwick Even Though Romer v. Evans Didn’t, 49 Duke L.J. 1559, 1576–80 (2000); Anne B. Goldstein, Reasoning About Homosexuality: A Commentary on Janet Halley’s Reasoning about Sodomy: Act and Identity in and After Bowers v. Hardwick, 79 Va. L. Rev. 1781, 1790–94 (1993).
205 Other commentators have noted the difficulty Hardwick presents for gay rights advocates, even when they litigate issues unrelated to due process. See, e.g., Mary C. Dunlap, Gay Men and Lesbians Down By Law in the 1990’s USA: The Continuing Toll of Bowers v. Hardwick, 24 Golden Gate U. L. Rev. 1, 17–24 (1994); see also Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551, 1587 (1993) (noting that historically, sodomy’s criminalization assisted in the oppression of gays and lesbians in areas such as government employment).
206 29 F. Supp. 2d 1279 (D. Utah 1998).
207 Id. at 1289.
208 Id.
209 See generally id. at 1279.
210 Compare, e.g., Shahar v. Bowers, 114 F.3d 1097, 1106–08 (11th Cir. 1997) (upholding dismissal of lesbian from attorney general’s office because of certain conduct, including her participation in a same-sex marriage ceremony, that the Attorney General thought might affect the office’s performance), with Padula v. Webster, 822 F. 2d 97, 102, 104 (D.C. Cir. 1987) (concluding that the FBI could rationally refuse to hire a lesbian candidate because her sexual orientation suggested a propensity to engage in conduct that might be illegal in areas in which she would be operating as a law enforcement officer). But see sources cited infra note 287 (citing studies suggesting the under- and over-inclusiveness of Padula’s rationale).
211 See Weaver, 29 F. Supp. 2d at 1289. For other examples of similar reasoning outside the potentially special context of the military, see Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996) (holding that school officials had no rational basis for failing to protect a high school student from harassment based on his sexual orientation); Jantz v. Muci, 759 F. Supp. 1543, 1548–52 (D. Kan. 1991) (holding both that sexual orientation is an inherently suspect classification and that employment discrimination against homosexuals is irrational in contexts where there is no issue of security clearances or special risk if the employee engages in illegal action), rev’d on other grounds, 976 F.2d 623, 627–30 (10th Cir. 1992) (holding that rule against sexual orientation discrimination in government employment was not well settled when the offending conduct occurred and that defendants were entitled to qualified immunity); see also Woodard v. Gallagher, 1992 WL 252279, *3 (Fla. Cir. Ct. 1992) (concluding that sexual orientation should receive heightened rational basis scrutiny but deciding case on other grounds).
212 See 478 U.S. 186, 196 (1986); see also Barnes v. Glen Theater, 501 U.S. 560, 572, 575 (1991) (Scalia, J., concurring in the judgment) (concluding that a ban on public nudity was constitutionally valid because of government’s power to enforce good morals). But see id. at 570 (plurality opinion); id. at 582 (Souter, J., concurring); id. at 590, 591 (White, J., dissenting) (resting their analyses on the degree to which nude dancing enjoyed First Amendment protection and on the weight of the non-morality based justifications offered for the statute).
213 See 478 U.S. at 196.
214 See 517 U.S. 620, 635 (1996); see also Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 964 (2001) (reading Cleburne as concluding that the government action was based on prejudice and thus was unconstitutional); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448–50 (1985) (concluding that the government action was based on prejudice and thus was unconstitutional).
215 Compare, e.g., Robinson v. California, 370 U.S. 660, 667, 668 (1962) (striking down a law criminalizing the status of being a drug addict).
216 Compare generally City of Boerne v. Flores, 521 U.S. 507 (1997) (striking down RFRA on the grounds that it essentially overturned the Court’s decision in Smith); see also infra notes 327–340 and accompanying text (suggesting a broader scope for congressional enforcement of the Equal Protection Clause, as compared with the other provisions of the Fourteenth Amendment).
217 See supra note 164 and accompanying text.
218 See Romer, 517 U.S. at 626, 627.
219 See id. at 631, 635.
220 Id. at 635.
221 See supra notes 182–216 and accompanying text.
222 Compare S. 1284, 107th Cong. 4(f) (2001), and H.R. 2692, 107th Cong. 4(f) (2001), with Barbara L. Schlei & Paul Grossman, Employment Discrimination Law 81–114 (1996) (describing adverse impact claims under Title VII).
223 See id.
224 See Washington v. Davis, 426 U.S. 229, 243 (1976) (requiring discriminatory intent before an equal protection violation can be made out).
225 If it is true that strict scrutiny is reserved for classifications that the Court believes are rarely relevant to legitimate government interests, it makes doctrinal sense to limit sexual orientation discrimination as a Section 5 matter to intentional discrimination. While disparate impact on the basis of a ground like race does not by itself call for strict scrutiny, see, e.g., id. at 242, the fact that race is so disfavored as a classification tool might make it justifiable to consider disparate impact stronger evidence of animus in that area, as opposed to sexual orientation. At least, this would be consistent with the relegation of sexual orientation to rational basis review. Compare, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88 (2000) (“[D]ifficult and intractable problems often require powerful remedies, and we have never held that Section 5 precludes Congress from enacting reasonably prophylactic legislation.”).
226 See, e.g., S. 1284,  6, 107th Cong. (2001); S. 1276,  6, 106th Cong. (1999).
227 This is not to comment on the correctness of such a holding. It is, instead, to view ENDA within the fabric of the law as it is likely to exist for at least the near future.
228 The Vermont Supreme Court, of course, has ruled that the state constitution’s “common benefits” clause requires that at least some version of marriage and its benefits be made available to same-sex couples. See generally Baker v. State, 744 A.2d 864, 886 (Vt. 1999). This has led to the now well-known Vermont institution of “civil union.” Vt. Stat. Ann. tit. 15, Ch. 1  4 & 8, h. 23,  1201–1207 (Supp. 2000). Still, the fact remains that Vermont is alone in recognizing such a relationship; moreover, other states have taken affirmative steps to refuse to recognize same-sex relationships that other jurisdictions may have legally recognized. See Nancy J. Feather, Defense of Marriage Acts: An Analysis Under State Constitutional Law, 70 Temp. L. Rev. 1017, 1019–21, 1033 (1997). Regardless of the ultimate constitutional fate of such refusals, complete equality for same-sex relationships is unlikely in the near future. Thus, ENDA confronts a legal landscape that will continue to feature official privileging of opposite-sex relationships. In turn, this reality will require ENDA, as a measure to remedy and ensure constitutional rights as currently understood, to be consistent with this privileging.
229 This is not to suggest that the argument is sufficient; instead, it simply acknowledges the reality that the military presents a different and more difficult case for sexual orientation discrimination when compared with other, more ordinary, workplaces.
230 See, e.g., S. 869, 105th Cong.  3(3) (1997); H.R. 1858, 105th Cong.  3(3) (1997).
231 The importance of a Section 5 enactment not infringing on other constitutional rights derives, at least indirectly, from the Morgan Court’s insistence, in response to Justice Harlan’s dissent in that case, that its broad reading of Congress’ Section 5 authority did not empower Congress to draft legislation limiting Fourteenth Amendment rights. Compare 384 U.S. 641, 651 n.10 (1966) (majority opinion), with id. at 668 (Harlan, J., dissenting). Specifically, the Morgan Court rejected the argument that the challenged statute itself violated the Equal Protection Clause by invidiously discriminating among non-English instructed individuals, favorably treating those educated in Puerto Rican schools and disfavoring those educated in non-American flag schools. Id. at 657. The Court rejected this argument because it characterized the statute as a reform measure that sought to increase voting rights. Id. However, the Court left open the possibility that there might be an equal protection problem with a state literacy law that classified between graduates of American-flag and foreign schools. See id.; see also Ruth Colker, The Section Five Quagmire, 47 U.C.L.A. L. Rev. 653, 676–77 (2000) (discussing this aspect of Morgan). This is not to suggest that ENDA presents a serious risk of infringing anyone’s rights. The point, instead, is simply to note that ENDA can be conceived of as a statute of limited scope (and thus “appropriate” Section 5 legislation), its limitations marked in part by the borders of other constitutional rights that it respects.
232 Proposed increases in the scope of government assistance for faith-based organizations, to the extent they survive constitutional challenge and are implemented by the states, may nevertheless raise some issue here. The example would be a state that provides assistance to a faith-based organization, whose sexual orientation discrimination then somehow becomes state action (the “somehow” alluding to the difficulty that would inhere in conceiving of the state as the actor for this purpose, but not when the organization actually goes out and acts in a religious way). In such a convoluted and potentially internally contradictory situation, ENDA’s religious exemption would inure to the benefit of states. For an example of a fact pattern that comes close (though not precisely on point), see Employment Discrimination Against Gays & Lesbians, http://www.religioustolerance.org/ hom_empl.htm (last modified May 12, 2000) (detailing case of state-funded faith-based charity allegedly discriminating on the basis of sexual orientation).
233 See supra note 177 and accompanying text; Romer v. Evans, 517 U.S. 620, 635 (1996).
234 Again, the fact that the party’s whose interests are being considered, here, the federal government, is not subject to the Fourteenth Amendment means that this argument provides only indirect support for the proposition that ENDA is targeted at conduct that violates that Amendment. That indirect support, though, is significant, as it reflects the bill’s overall concern for not intruding on other valid interests. Compare City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (concluding that RFRA is not proportional to any Free Exercise Clause violations committed by the states, in part because the statute works a “considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens”).
235 See supra note 133 and accompanying text.
236 See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 82–91 (2000) (applying the “congruence and proportionality” test, followed by a consideration of whether Congress found the existence of a more serious constitutional problem than perceived by the Court).
237 See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 650, 651 (1996) (laying out general principles for evaluating the appropriateness of legislation justified under Section 5).
238 See Post & Siegel, supra note 135, at 477 (finding parallels between the Court’s recent Section 5 jurisprudence and strict scrutiny).
239 See supra note 8 and accompanying text.
240 See Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 967 (2001); City of Boerne v. Flores, 521 U.S. 507, 532–33 (1997). The City of Boerne Court wrote:
This is not to say, of course, that 5 legislation requires termination dates, geographic restrictions, or egregious predicates. Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress’ means are proportionate to ends legitimate under  5.
City of Boerne, 521 U.S. at 533.
241 See 384 U.S. at 653 (“It is not for us to review the congressional resolution of the factors [leading Congress to conclude that  4(e) of the Voting Rights Act was necessary to secure the equal protection rights of Puerto Ricans in the United States]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.”). Morgan applied this same deferential standard to congressional determinations of the substance of the rights guaranteed by the Fourteenth Amendment. The Morgan court wrote:
Here again, it is enough that we perceive a basis upon which Congress might predicate a judgment that the application of New York’s English literacy requirement to deny the right to vote to a person with a sixth grade education in Puerto Rican schools in which the language of instruction was other than English constituted an invidious discrimination in violation of the Equal Protection Clause.
See id. at 656.
242 See supra note 155 and accompanying text.
243 See supra note 164 and accompanying text.
244 Compare Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 86–89 (2000) (describing the breadth of the ADEA and the narrowness of its exceptions as evidence of its lack of proportionality compared with the relatively insignificant constitutional problem it sought to address).
245 See supra notes 222–234 and accompanying text.
246 See, e.g., S. 1276, 106th Cong.  11 (1999).
247 Compare Bowers v. Hardwick, 478 U.S 186, 196 (1986) (approving of morality as a legitimate reason to ban homosexual sodomy).
248 See, e.g., S. 1276, 106th Cong.  12(d) (1999) (affirmative action prohibition); S. 1276, 106th Cong.  8 (1999) (quota and preferential treatment prohibitions).
249 See, e.g., Evan Gerstmann, The Constitutional Underclass 102–10 (1999) (discussing polling data from Colorado in the period leading up to the vote on Amendment 2).
250 Normally, courts’ equitable power is broad-ranging and includes the power to enter and monitor compliance with consent decrees that require the parties to do more than what the underlying law requires. See, e.g., Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 389 (1992).
251 See Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 965 (2001) (restricting the appropriate field of inquiry to conduct by states, not including units of local governments such as cities or counties).
252 Id. (quoting 42 U.S.C.  12101(a)(2) (1994)).
253 See id.
254 See id.
255 See id.
256 Garrett, 121 S. Ct. at 965 n.7.
257 See id.
258 See id. at 964–65, 966.
259 See City of Rome v. United States, 446 U.S. 156, 176 (1980); see also Garrett, 121 S. Ct. at 963; Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000); City of Boerne v. Flores, 521 U.S. 507, 536 (1997); cf. supra note 65 and accompanying text (noting Professor Tribe’s comparison of the City of Rome “wider net” theory to a rule of evidence).
260 See Kimel, 528 U.S. at 81 (“‘It is for Congress in the first instance to ‘determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,’ and its conclusions are entitled to much deference.’”) (quoting City of Boerne, 521 U.S. at 536 (in turn quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966))); Morgan, 384 U.S. at 651 (Section 5 “is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.”).
261 528 U.S. at 81.
262 See id. at 88–91.
263 See 446 U.S. at 174.
264 For example, there would be a serious question whether someone deterred from seeking work because of suspected discrimination by the would-be employer would have standing to sue in federal court given the relatively strict causal links required for a plaintiff to have standing. Compare, e.g., Warth v. Seldin, 422 U.S. 490, 504, 505 (1975) (denying standing to would-be residents of a township alleged to have engaged in discriminatory zoning on the ground that it was unclear whether the zoning decisions had in fact caused home builders to not build the low-cost housing the plaintiffs could afford). This is not an insurmountable hurdle, however. For example, in Adarand Constructors v. Pena, 515 U.S. 200 (1995), the Court allowed a white-owned contractor to challenge a government set-aside policy and seek forward-looking relief without requiring it to prove that it would be the low bidder. Instead, the Court characterized the injury as impacting the plaintiff’s ability to compete on equal footing with other contractors, regardless of whether plaintiff could show that it would have been successful in that competition. So too in the example in the text, a plaintiff discouraged from applying for work might be able to argue that she was deprived of her ability to compete fairly for a job, even though it was unknowable whether she would in fact have gotten the job had she applied and had the employer not discriminated. Still, the Adarand example enjoys a tighter causal link, if for no other reason than because the contractor in that case had bid on construction jobs before, and thus it could be presumed that the contractor would do so again.
265 Indeed, to the extent that such indirect methods are necessary in order to ascertain the existence of discrimination, congressional (as opposed to judicial) action may be called for, since in such situations it may be difficult to structure a legal claim that meets the requisites of an Article III case or controversy. Compare, e.g., Warth, 422 U.S. at 508 (denying standing to plaintiffs on the ground that the causal chain between the defendants’ actions and the plaintiffs’ injuries was too speculative).
266 See 42 U.S.C.  12101(a)(2) (1994); see also Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 966 (2001) (quoting this finding).
267 See Garrett, 121 S. Ct. at 977–93 (Appendix C to opinion of Breyer, J., dissenting); see also id. at 966 (responding to Appendix C).
268 See id. at 965.
269 See id. at 966 n.7.
270 See id. at 965–67.
271 A Philadelphia survey found that 76% of gay men and 81% of lesbians said they concealed their sexual orientation in their workplace. See JAMES D. WOODS & JAY H. LUCAS, THE CORPORATE CLOSET 8 (1993).
272 See id.
273 Of course, this is not to minimize the difficulties faced by other groups, such as women, when they complain about discrimination. It is merely to point out that the option of the closet means that a lesbian’s decision to complain imposes on her an additional burden not borne by others whose membership in the burdened group is already obvious to all.
274 See Garrett, 121 S. Ct. at 968 (Kennedy, J., concurring).
275 The situation is different when there is discrimination by the employer, or harassment by co-workers, on the basis of perceived sexual orientation. In that case, the victim has been “outed” (whether accurately or not, since the basis of the negative treatment is only a perception), and the closet has been taken away as an option. On the other hand, such punitive outings (whether accurate or not) might aggravate the closetedness of other employees, thus creating a larger problem, again hidden from the typical record-creating methods the Court appears to favor in Section 5 cases.
276 For example, Title VII prohibits discrimination under any terms, conditions, or privileges of employment. See 42 U.S.C.  2000e-2(a)(1) (1994).
277 Presumably, such evidence would have to suggest the existence of an injury from having to stay in the closet, and some causal link between that injury and the need to stay in the closet at the workplace in particular. Whether such injury, assuming it can be identified, can be parceled out in terms of its causation is questionable, at least with the degree of precision the Court seems to have required in Garrett.
278 See, e.g., Garrett, 121 S. Ct. at 964–66; Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 89–91 (2000).
279 See Garrett, 121 S. Ct. at 964–966; Kimel, 528 U.S. at 89–91; Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 644–47 (1999); City of Boerne v. Flores, 521 U.S. 507, 530, 531 (1997).
280 See 121 S. Ct. at 966.
281 See Katzenbach v. Morgan, 384 U.S. 641, 653 (1966) (stating that it was only necessary for the Court to perceive a basis for the prophylactic action taken by Congress); see also City of Rome v. United States, 446 U.S. 156, 177 (1980) (“Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact.”) (footnote omitted). Compare, e.g., Garrett, 121 S. Ct. at 964–66 (requiring particularized findings of unconstitutional action by state governments).
282 See supra notes 274–275 and accompanying text.
283 A brief perusal of the Internet reveals several sites dedicated to documenting anti-gay actions, including employment discrimination. See, e.g., Human Rights Campaign, Documenting Discrimination (documenting examples of private and public sector discrimination, including employment discrimination, based on sexual orientation), at http://www.hrc.org/publications/pdf/DocumentingDiscrimination.pdf (last visited Nov. 25, 2001).
284 See 446 U.S. at 177.
285 See supra note 222 and accompanying text.
286 Indeed, in the context of race, where the Court uses what is arguably a similar strict scrutiny standard, compare Post & Siegel, supra note 135, at 677, the Court discounted such disparate result data, wondering whether the data reflected not so much discrimination but instead career choices made by African Americans. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 503 (1989). As in Croson, the Court might require Congress to make a stronger showing that the disparate result was attributable to discrimination and not to choices made by gays. See id.
287 See Booth, supra note 194, at 1260 (citing studies); Captain John A. Carr, The Difference Between Can and Should: Able v. United States and the Continuing Debate About Homosexual Conduct in the Military, 46 A.F. L. Rev. 1, 7–8 nn.26–29 (1999) (same).
288 An example of the latter type of finding that the Court might reject would be one, made perhaps in response to Florida Prepaid, that states were depriving patent holders of property “without due process.” See 527 U.S. 627, 641–43 (1999). Compare City of Boerne v. Flores, 521 U.S. 507, 534–35 (1997) (rejecting what the Court considered Congress’Congress’s attempt to reinterpret the Free Exercise Clause under the guise of its enforcement power under Section 5).
289 See Tony Varona, Equal Justice: Federal and State Courts Continue to Shape Lesbian and Gay Equal Rights, HRC Q., Spring 1999,available at http://www.hrc.org/publications/hrcq/ hrcq99sp/pg17.asp (last visited Nov. 25, 2001).
290 See id. (noting that courts in four states have recently invalidated their sodomy laws); see also, e.g., http://www.geocities.com/privacylaws/legal.htm (describing case law from numerous states where the courts have struck down the state’s sodomy law as unconstituional).
291 See, e.g., S. 2238, 103d Cong.  2(a)(1) (1994).
292 See 29 U.S.C.  621(a)(4), (a)(5) (1994); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88–91 (2000).
293 See Kimel, 528 U.S. at 88–91.
294 42 U.S.C.  12101(a)(9) (1995) (emphasis added).
295 Id.  12101(a)(9) (emphasis added).
296 Id.  12101(a)(7).
297 See 121 S. Ct. 955, 971, 972 (2001) (Breyer, J., dissenting).
298 See id. at 966 (noting the lack of a legislative finding of unconstitutional conduct by states); id. (noting that committee reports cited problems with employment discrimination in the private sector but did not mention government employment).
299 See id. at 966 n.7 (stating that most of the examples of state government discrimination cited by the dissent did not involve employment, and those that did were described so generally as to make it impossible to know whether they constituted unconstitutional action by the state).
300 Compare United States v. Klein, 80 U.S. 128, 146–47 (1871) (striking down a law that, according to the Court, prescribed a “rule of decision” for the courts and thus infringed on the judiciary’s role), with Robertson v. Seattle Audubon Soc’y, 503 U.S. 429 (1992). In Seattle Audubon, the Court upheld, against a Klein challenge, a law that “determined and directed” that U.S. Forest Service compliance with certain new requirements for managing federal forests “was adequate consideration for the purpose of meeting the statutory requirements that are the basis of” certain pending lawsuits that the statute identified by name and docket number. Id. at 437, 439. On the difficulty of determining when legislative action of this sort intrudes into the judicial realm, see generally William D. Araiza, The Trouble With Robertson: Equal Protection, the Separation of Powers and the Line Between Statutory Amendment and Statutory Interpretation, 49 Cath. U. L. Rev. 1055 (1999).
301 Equal. Found. of Cincinnati v. City of Cincinnati, 54 F.3d 261, 265 (6th Cir. 1995).
302 See id.
303 See generally, e.g., Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229 (1985).
304 See, e.g., The Employment Non-Discrimination Act (ENDA): Testimony Before the Senate Comm. on Labor and Human Resources, 105th Cong. (1997) (statement of the American Psychological Association, available at http://www.apa.org/ppo/issues/pendatest.html (asking “Are lesbians and gay men psychologically abnormal which would justify work place discrimination?” and answering “No.”) (last visited Nov. 25, 2001). On the recent trend toward increased use of social science data in gay rights litigation, see generally Patricia J. Falk, The Prevalence of Social Science in Gay Rights Cases: The Synergistic Influences of Historical Context, Justificatory Citation, and Dissemination Efforts, 41 Wayne L. Rev. 1 (1994).
305 See City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (describing the burdensomeness of the prohibitions RFRA imposed on states “to illustrate the substantive alteration [of the Court’s earlier interpretation of the Free Exercise Clause] attempted by RFRA”).
306 Obviously, this is not a clean line. “Irrationality” could be found empirically, or it could be a legal conclusion. Thus, if Congress finds that sexual orientation discrimination in employment is “irrational,” it might be taken as either a statement of empirical reality or as an attempt to pre-determine the Court’s application of the rational basis test. Compare United States v. Klein, 80 U.S. 128, 146–47 (1871) (striking down a statute because it prescribed a “rule of decision” for the courts and thus intruded into the judiciary’s realm). Thus, as discussed in the accompanying text, how the Court ultimately reads such a fact finding may turn on the type of record evidence that supports it.
307 See 42 U.S.C.  12101(a)(7) (1994) (“[I]ndividuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.”).
308 See, e.g., Bowen v. Gillard, 483 U.S. 587, 602 (1987) (noting the charateristics of suspect classes); Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974) (same); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 26 (1973) (same).
309 Compare Equal. Found. of Cincinnati v. City of Cincinnati, 54 F.3d 261, 265 (6th Cir. 1995).
310 It might even be helpful, though it seems excessive, to focus this finding specifically on government employment. This further specificity may seem unnecessary; after all, government employment is not so different in character from employment in the private sector, and so the irrelevance of sexual orientation discrimination in employment in general should presumably apply to government employment. But given how much specificity the Court seems to demand, it may be prudent to provide a finding as narrowly tailored as this. The same would go for record evidence supporting that finding. See infra text accompanying notes 311–312.
311 Cf. Garrett, 121 S. Ct. at 969 (Breyer, J., dissenting) (comparing the Court’s review of the congressional record “as if it were an administrative agency record”). See generally, e.g., Harold J. Krent, Turning Congress into an Agency: The Propriety of Requiring Legislative Findings, 46 Case W. Res. L. Rev. 731 (1996).
312 See supra notes 300–306 and accompanying text.
313 Justices O’Connor, Souter, and Breyer all dissented, but Justice O’Connor agreed with the majority’s analysis of the Section 5 issue, while Justices Souter and Breyer refrained from expressing an opinion, resting their positions on whether Smith was properly decided. See 521 U.S. 507, 545 (1997) (O’Connor, J., dissenting); id. at 565 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting).
314 42 U.S.C.  2000bb-1(a) (1994).
315 Id.  2000bb-1(b)(1).
316 Id.  2000bb-1(b)(2).
317 See generally Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).
318 See supra note 73 and accompanying text (noting the Court’s statement in City of Boerne that RFRA actually went beyond the Sherbert test).
319 521 U.S. 507, 536 (1997).
320 See, e.g., Vergeer, supra note 60, at 671–79 (providing examples of legislative reversals of Supreme Court decisions enunciating constitutional doctrine). Professor Vergeer also cites one example of a statute restricting a right found by the Court: The law Congress enacted in the aftermath of Miranda v. Arizona, 384 U.S. 436 (1966), reinstating a more flexible standard for judging the voluntariness of a confession. See Vergeer, supra, at 674. The viability of the idea that Congress can restrict a Court-found constitutional right as easily as it can expand one is now in doubt after Dickerson v. United States, 530 U.S. 428, 432 (2000), in which the Court held that Miranda’s confession rule was constitutionally based and could not be overruled by a legislative act.
321 See supra note 320 and accompanying text.
322 5 U.S. (1 Cranch) 137, 177 (1803).
323 358 U.S. 1, 17 (1958) (suggesting that the Supreme Court’s exposition of the Constitution is itself the law of the land).
324 For a notable exception, see Vergeer, supra note 60, at 693–96 (arguing that these two differences are more the product of post-Morgan commentary than the text or reasoning of the opinion itself).
325 521 U.S. 507, 519–20 (1997). See generally Araiza, supra note 300 (discussing an analogous line-drawing difficulty in the context of normal statutes).
326 384 U.S. 641, 656 (1966).
327 See generally 83 U.S. (16 Wall.) 36 (1873).
328 Compare, e.g., Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 671–75 (1999) (refusing to consider a business’ interest in its competitor not engaging in false advertising as a due process-protected “property” interest).
329 It should be noted that there is a strand of equal protection jurisprudence that focuses on the importance of the benefit or burden that is being distributed unequally. See generally, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) (right to vote). This Article focuses instead on the main component of equal protection jurisprudence, which, in turn, focuses on the identity of the group being burdened as opposed to this “fundamental rights” strand.
330 See generally Frontiero v. Richardson, 411 U.S. 677 (1973).
331 See generally City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
332 See generally Ry. Express Agency v. People of State of N.Y., 336 U.S. 106 (1949).
333 See Vill. of Willowbrook v. Olech, 528 U.S. 562, 566 (2000) (allowing assertion of equal protection claim by a class of one).
334 See supra note 329 and accompanying text.
335 It should be noted, though, that often the Court will essentially ask what “we” think about these terms when it decides their meanings. See generally, e.g., Thompson v. Oklahoma, 487 U.S. 815 (1988) (plurality opinion) (holding that the Eighth Amendment prohibited the execution of a person who was fifteen years old when he committed a capital crime in large part because of a societal consensus against executions of persons that young).
336 Political process theory is normally thought to have originated in the famous Footnote 4 of United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938), and to have been most fully expanded into a theory by John Hart Ely. See generally John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980). Ironically, Carolene Products was a substantive due process case; still, Footnote 4’s focus on legislative classifications clearly suggested the theory’s ultimate home in the Equal Protection Clause.
337 See Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357, 387–96 (1994) (arguing that Congress should be allowed less legislative leeway when altering the scope of a Bill of Rights provision incorporated against the states via the Due Process Clause as compared with the equal protection guarantee). On the other hand, Congress has wide latitude to create property and liberty interests, the deprivation of which requires satisfaction of the guarantee of procedural due process. See, e.g., Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 642 (1999) (accepting the proposition that Congress may create property interests and then, under Section 5, legislate against their deprivation without due process); Bd. of Regents v. Roth, 408 U.S. 564, 571, 572 (1972) (explaining the theory behind legislative creation of property interests). In many ways, though, procedural due process is very different from its substantive cousin, with the former’s rules deriving in large part from the different political dynamic at work when Congress grants or deprives a property interest to an entire class and when it authorizes government bodies to take away such interests on a piecemeal basis. Compare Arnett v. Kennedy, 416 U.S. 134, 152 (1974) (plurality opinion) (arguing that if Congress creates a property interest it should be able to attach it to a condition that its deprivation can be accomplished without a hearing), with id. at 164 (Powell, J., concurring in part and concurring in the judgment in part) and id. at 171 (White, J., dissenting) (both criticizing the plurality’s theory); see also Araiza, supra note 300, at 1137 n.290.
338 See supra note 326 and accompanying text.
339 384 U.S. 641, 653 (1966).
340 See, e.g., Commodities Futures Trading Corp. v. Schor, 478 U.S. 833, 853–57 (1986) (determining the legality of adjudications conducted by non-Article III federal tribunals based on a balancing of factors, including the character of the right adjudicated as public or private and the degree to which the non-Article III court exercises powers typically associated with a court).
341 Romer v. Evans, 517 U.S. 620, 631 (1996).
342 It bears repeating that political process theory attempts to provide meaning to the equal protection guarantee exactly by ensuring that all groups have a chance to influence how the legislature reads that consensus with judicial protection only for those who don’t have that opportunity. See generally Ely, supra note 336.
343 See supra note 231. For a thorough analysis of Morgan’s discussion of whether Congress’ power to interpret the Fourteenth Amendment includes a power to reduce protections previously found by the courts, see Vergeer, supra note 60, at 696–716.
344 Compare Bd. of Tr. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 968 (2001) (Kennedy, J., concurring) (identifying as a problem with the ADA the fact that few cases of allegedly unconstitutional disability discrimination had been litigated in federal court).