758
Kennedy, J., dissenting
v. Morgan, supra, at 659, 667; see also South Carolina v. Katzenbach, supra, at 315-323. Justice Harlan explained that in the case of South Carolina there was " 'voluminous legislative history' as well as judicial precedents supporting the basic congressional findings that the clear commands of the Fifteenth Amendment had been infringed by various state subterfuges. . . . Given the existence of the evil, we held the remedial steps taken by the legislature under the Enforcement Clause of the Fifteenth Amendment to be a justifiable exercise of congressional initiative." 384 U. S., at 667 (quoting South Carolina v. Katzenbach, supra, at 309, 329-330). By contrast, the New York case, in his view, lacked a showing that "there has in fact been an infringement of that constitutional command, that is, whether a particular state practice . . . offend[ed] the command of the Equal Protection Clause of the Fourteenth Amendment." 384 U. S., at 667. In the absence of evidence that a State has engaged in unconstitutional conduct, Justice Harlan would have concluded that the literacy test ban Congress sought to impose was not an "appropriate remedial measur[e] to redress and prevent the wrongs," but an impermissible attempt "to define the substantive scope of the Amendment." Id., at 666, 668.
For the same reasons, the abrogation of state sovereign immunity pursuant to Title VII was a legitimate congressional response to a pattern of gender-based discrimination in employment. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). The family leave benefit conferred by the Act is, by contrast, a substantive benefit Congress chose to confer upon state employees. See City of Boerne, supra, at 520 ("There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect"). The plain truth is Congress did not "ac[t] to accomplish the legitimate end of enforcing judicially-recognized Fourteenth Amendment
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