756
Kennedy, J., dissenting
Were more proof needed to show that this is an entitlement program, not a remedial statute, it should suffice to note that the Act does not even purport to bar discrimination in some leave programs the States do enact and administer. Under the Act, a State is allowed to provide women with, say, 24 weeks of family leave per year but provide only 12 weeks of leave to men. As the counsel for the United States conceded during the argument, a law of this kind might run afoul of the Equal Protection Clause or Title VII, but it would not constitute a violation of the Act. Tr. of Oral Arg. 49. The Act on its face is not drawn as a remedy to gender-based discrimination in family leave.
It has been long acknowledged that federal 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." City of Boerne, 521 U. S., at 518; see also ante, at 737 (in exercising its power under § 5 of the Fourteenth Amendment, Congress "may prohibit 'a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text' " (quoting Kimel, 528 U. S., at 81)). The Court has explained, however, that Congress may not "enforce a constitutional right by changing what the right is." City of Boerne, supra, at 519. The dual requirement that Congress identify a pervasive pattern of unconstitutional state conduct and that its remedy be proportional and congruent to the violation is designed to separate permissible exercises of congressional power from instances where Congress seeks to enact a substantive entitlement under the guise of its § 5 authority.
The Court's precedents upholding the Voting Rights Act of 1965 as a proper exercise of Congress' remedial power are instructive. In South Carolina v. Katzenbach, 383 U. S. 301 (1966), the Court concluded that the Voting Rights Act's prohibition on state literacy tests was an appropriate method of enforcing the constitutional protection against racial dis-
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