Sue your own state? Why not?

In 1993, Congress passed the Family and Medical Leave Act, which entitled employees up to 12 weeks of unpaid leave in four situations: because of the birth of a child; when an employee adopts a child; when an employee must care for an ill relative; or when the employee himself has a “serious health condition.” Congress explicitly included public agencies in its definition of employer, but the state of Maryland has asked the Supreme Court to shield it from a suit filed by a state employee who was fired after he asserted his right to sick leave. The court should rule against the state, and in the process reexamine decisions making it hard for citizens to sue their own states.

In 2007, Daniel Coleman, an employee of Maryland’s judicial system, was told by his doctor to take two weeks of bed rest as treatment for high blood pressure and diabetes. Coleman’s request for leave was denied, and he was fired the next day. He filed suit under the Family and Medical Leave Act, but the state argued that it couldn’t go forward because the state enjoyed what’s known as “sovereign immunity.”

Whether a citizen can sue his own state under federal law has traditionally depended on how the court has interpreted two constitutional provisions. One is the 11th Amendment, which says that citizens of one state may not sue another state in federal court. The court has needlessly complicated that relatively straightforward prohibition by ruling that the 11th Amendment also bars a suit by a citizen against his own state. The other is the 14th Amendment, which says that Congress may pass legislation to further the amendment’s guarantee of equal protection of the laws. Using that power, the court has held, Congress may abrogate state immunity to address racial or gender discrimination.

The result has been a bewildering series of decisions. In 2001, the court held that the 11th Amendment barred suits against the states brought by individuals claiming violations of the Americans with Disabilities Act. But in 2003, it said Congress had the power to abrogate state immunity in a case brought under the family leave provisions of the Family and Medical Leave Act. The court reached that decision on the grounds that the family leave provisions were Congress’ response to “the pervasive sex-role stereotype that caring for family members is women’s work” — and sex discrimination is covered by the 14th Amendment.

This case, however, doesn’t have to do with family leave but with sick leave. Nevertheless, taking their cue from the 2003 decision, Coleman’s lawyers asked the court to consider the Family and Medical Leave Act as a whole and conclude that the law is “an integrated response to gender discrimination.” If that’s the case, men as well as women can argue that the law is constitutional.

That’s fine, as far as it goes. But the real issue in the case is the court’s misinterpretation of the 11th Amendment. Coleman isn’t suing another state; he’s suing his own. And he has a right to his day in court.