2011-2012 Supreme Court Term: Decision in Coleman v. Court of Appeals of Maryland

Yesterday the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, No. 10-1016.   By a vote of 5-4, the Court ruled that the doctrine of "state sovereign immunity" applied in this case, ending Coleman's lawsuit against the State of Maryland.


This is another in the series of 11th Amendment cases decided by the Supreme Court in recent years. Essentially, the rule is that if Congress enacts a law pursuant to the Commerce Clause then it may not abrogate state sovereign immunity; it may not empower a person to sue a state government for money damages. However, if Congress enacts a law pursuant to Section 5 of the 14th Amendment, then it may abrogate state sovereign immunity and permit a plaintiff to sue a state for money damages. The reasoning is that when the Constitution was adopted Congress lacked the power to force the states to pay money damages to individuals, but when the 14th Amendment was ratified in 1868, that Amendment expressly provides that "No state shall" deny any person the equal protection of the laws and it authorizes Congress to enforce that provision.

Accordingly, civil rights laws that are adopted pursuant to the 14th Amendment can be used to sue the states for money damages. Civil rights laws that are adopted pursuant to the Commerce Clause may not be used to sue the states for money damages.

Some civil rights laws have portions that were enacted pursuant to the 14th Amendment, and other portions that were enacted pursuant to the Commerce Clause. The Americans with Disabilities Act is one such law.  In this case the Supreme Court ruled that the Family Medical Leave Act is another such law.

I described the facts of this case and the related case law in this earlier post, so I will only briefly summarize the case here. Mr. Coleman asked to take 10 days "sick leave." His employer, the Maryland Court of Appeals, decided instead to terminate his employment. Coleman sued the Court under the "self-care" provision of the Family Medical Leave Act, which guarantees employees the right to take sick leave.

The Supreme Court found that the "self-care" provision of the FMLA was adopted pursuant to the Commerce Clause, not the 14th Amendment.  This ruling was not a surprise.  Every single Court of Appeals that considered the issue came to the same conclusion. The provisions of the FMLA that permitted workers to take unpaid leave to care for other family members was obviously intended to protect women who historically have served as caretakers in our society and who as a result have often had to choose between family and a career. The FMLA is designed to redress this form of gender discrimination.  This argument is much more difficult with respect to the "self-care" provision of the FMLA.  It would seem to treat both genders equally, and is not so clearly directed against gender discrimination.  In light of the approach that the Supreme Court has adopted in these cases the decision of the Court in this case was reasonable.

However, there was no majority opinion. The vote was actually 4-1-4.  Justice Kennedy, in an opinion joined by three other justices, followed the usual path in these cases and determined that the remedy provided by the "self-care" provision of the FMLA was not "congruent with" or "proportionate to" any possible violation of the 14th Amendment by the state. Accordingly this provision of the FMLA was not a 14th Amendment enactment but rather a Commerce Clause measure.

Justice Thomas concurred on the ground that the entire FMLA is a Commerce Clause enactment, and that therefore all lawsuits for money damages against state governments under the FMLA should be barred.  As a result, in Justice Thomas' judgment the Court's decision in Nevada Dept. of Human Resources v. Hibbs (2003) should be overruled.  Justice Thomas was the only justice to take that position in this case.

In an opinion concurring in the judgment only, Justice Scalia came to the same result as the plurality but used different reasoning. He rejected the "congruent and proportionate" test used by Justice Kennedy, and stated that he evaluates the constitutionality of measures under the 14th Amendment by reference to the text of the Amendment:

I adhere to my view that we should instead adopt an approach that is properly tied to the text of §5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment. (Emphasis added.) As I have explained in greater detail elsewhere, see Lane, supra, at 558–560, outside of the context of racial discrimination (which is different for stare decisis reasons), I would limit Congress’s §5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care—or any other purpose, for that matter—does not come close.

In dissent, Justice Ginsburg, writing for herself and three other justices, would have ruled that the "self-care" provision of the FMLA redresses a form of gender discrimination because working women were most likely to be affected by a situation where an employee could not take sick leave. She stated:

The FMLA’s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee—without singling out women or pregnancy—that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.

Justice Ginsburg makes a persuasive argument that the self-care provision was indeed a valid enactment under the 14th Amendment.

In footnote 1 of her opinion Justice Ginsburg offered another reason why Coleman should be allowed to sue the State of Maryland for money damages under the FMLA. She expresses the view that the entire enterprise of distinguishing 14th Amendment enactments from Commerce Clause enactments is mistaken:

I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power.

Only Justice Breyer agreed with Justice Ginsburg on this point.

I agree with the position that Justice Ginsburg and Justice Breyer took in footnote 1. Unlike the Articles of Confederation, the original Constitution of the United States does not mention the term "state sovereignty."  Instead, it provides that federal law is "the supreme law of the land." Nor does the 11th Amendment lend any support for the proposition that state governments are immune from liability imposed by statutes adopted pursuant to the Commerce Clause. That amendment to the Constitution deals with the jurisdiction of the federal courts, not the power of Congress to enact legislation affecting the states. This entire line of "state sovereign immunity" cases is based upon a wayward policy in search of a constitutional home.

Wilson Huhn has taught Constitutional Law at the University of Akron School of Law for longer than the Supreme Court has recognized "state sovereign immunity" as a constitutional principle.