Cite as: 538 U. S. 721 (2003)
Kennedy, J., dissenting
The Court acknowledges that States have adopted family leave programs prior to federal intervention, but argues these policies suffered from serious imperfections. Ante, at 733-734. Even if correct, this observation proves, at most, that programs more generous and more effective than those operated by the States were feasible. That the States did not devise the optimal programs is not, however, evidence that the States were perpetuating unconstitutional discrimination. Given that the States assumed a pioneering role in the creation of family leave schemes, it is not surprising these early efforts may have been imperfect. This is altogether different, however, from purposeful discrimination.
The Court's lengthy discussion of the allegedly deficient state policies falls short of meeting this standard. A great majority of these programs exhibit no constitutional defect and, in fact, are authorized by this Court's precedent. The Court points out that seven States adopted leave provisions applicable only to women. Ante, at 733. Yet it must acknowledge that three of these schemes concerned solely pregnancy disability leave. Ante, at 733, n. 6 (citing 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002); Iowa Code § 216.6(2) (2000); N. H. Stat. Ann. § 354-A:7(VI)(b) (Michie Supp. 2000)). Our cases make clear that a State does not violate the Equal Protection Clause by granting pregnancy disability leave to women without providing for a grant of parenting leave to men. Geduldig v. Aiello, 417 U. S. 484, 496- 497, n. 20 (1974); see also Tr. of Oral Arg. 49 (counsel for the United States conceding that Geduldig would permit this practice). The Court treats the pregnancy disability scheme of the fourth State, Louisiana, as a disguised gender-discriminatory provision of parenting leave because the scheme would permit leave in excess of the period Congress believed to be medically necessary for pregnancy disability. Ante, at 733, n. 6. The Louisiana statute, however, granted leave only for "that period during which the female employee is disabled on account of pregnancy, child-
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