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Court revisits sovereign immunity in discrimination cases.

Article Excerpt
Over the last decade, few areas of constitutional law have received more attention from the Supreme Court than sovereign immunity. Since 1996, the Court has significantly limited plaintiffs' ability to sue state governments. But its most recent ruling on the issue, in United States v. Georgia, actually opens the door to more lawsuits against states by holding that plaintiffs may use federal laws to sue state governments if they claim that the state is violating the Constitution. (1)

The current wave of sovereign immunity litigation resulted from the Court's decision in Seminole Tribe of Florida v. Florida, (2) where it found that Congress may authorize suits against state governments only under [section] 5 of the Fourteenth Amendment. (3) A law that Congress adopted under the Commerce Clause, for instance, could not be used to sue a state government, but a law it passed under [section] 5 could be. (4)

A year after Seminole Tribe, the Court significantly narrowed Congress's [section] 5 power in City of Boerne v. Flores. (5) This ruling held that even under [section] 5, Congress may not act to create new rights or expand the scope of rights guaranteed by the Fourteenth Amendment. Rather, it can act only to prevent or remedy violations of rights already recognized by the courts. Moreover, such laws must be narrowly tailored: In the words of the Court, "there must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." (6)

In City of Boerne, the Court declared that the federal Religious Freedom Restoration Act was unconstitutional as...