ABSTRACT
This chapter examines whether, like most adolescents, congruence and proportionality standard will grow out of that troubled period into a mature adulthood or remain mired in teenage awkwardness. It explores the early history of the standard, from its inception in Boerne to Tennessee v. Lane, the 2004 case that, in retrospect, marked the close of the doctrine's first phase. The chapter explains how the doctrine's first phase has set the Court on a collision course with legislation addressing emerging groups' equality claims. It considers the Court's confrontations with the Voting Rights Act (VRA) and the Family and Medical Leave Act's (FMLA) self-care provision. Under the post-Boerne template, a refusal to accord heightened scrutiny would likely undermine the Enforcement Clause foundation of legislation such as the Genetic Information Non-Discrimination Act (GINA) and the proposed Employment Non-Discrimination Act (ENDA) protecting LGBT employees against job discrimination. The chapter concludes by speculating on the Court's likely path.
