Scalia: Women Don't Have Constitutional Protection Against Discrimination

[one...two...tree 2,762]

WASHINGTON -- The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.

In a newly published interview in the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn't itself outlaw that behavior:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

For the record, the 14th Amendment's equal protection clause states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." That would seem to include protection against exactly the kind of discrimination to which Scalia referred.

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

Greenberger added that under Scalia's doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools -- all things that have happened in the past, before their rights to equal protection were enforced.

WASHINGTON -- The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.

In a newly published interview in the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn't itself outlaw that behavior:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

For the record, the 14th Amendment's equal protection clause states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." That would seem to include protection against exactly the kind of discrimination to which Scalia referred.

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

Greenberger added that under Scalia's doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools -- all things that have happened in the past, before their rights to equal protection were enforced.

"In 1971, the Supreme Court unanimously ruled that they were protected, in an opinion by the conservative then Chief Justice Warren Burger," Adam Cohen wrote in Time in September. "It is no small thing to talk about writing women out of equal protection -- or Jews, or Latinos or other groups who would lose their protection by the same logic. It is nice to think that legislatures would protect these minorities from oppression by the majority, but we have a very different country when the Constitution guarantees that it is so."

In 1996, Scalia cast the sole vote in favor of allowing the Virginia Military Institute to continue denying women admission.

http://www.huffingtonpost.com/2011/01/03/scalia-women-discrimination-constitution_n_803813.html

[I AM NOT THAT GUY 5,715]

WASHINGTON -- The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.

Of course it doesn't. Women were not even considered full citizens until the passage of the 19th amendment. Sheesh. Buy a history book.

[^_^ 5,021]

Scalia just wants to stick women and minorities at the back of the bus where they belong. Is that so wrong?

[I AM NOT THAT GUY 5,715]

You do know that in 1972 this issue was sent to the States for ratification. Thirty-eight years later, the amendment still needs three more state legislatures, out of the remaining fifteen, to ratify the amendment. Three more states. I would think that would be doable with just a little media attention on the issue. Come on MS-NBC! Come on CBS! Do something useful and breath life in to the Equal Rights Amendment.

[Pooky 3,825]

So, is Scalia right, or wrong in his interpretation?

[one...two...tree 2,762]

So, is Scalia right, or wrong in his interpretation?

Scalia considers himself a strict constructionist, which is another name for a narrow-minded judge who can't see the forest for the trees.

[^_^ 5,021]

So, is Scalia right, or wrong in his interpretation?

In 1971, the Supreme Court unanimously ruled that they were protected ...

u.n.a.n.i.m.o.u.s.l.y

Edited January 4, 2011 by \

[alienlovechild 75]

Scalia considers himself a strict constructionist, which is another name for a narrow-minded judge who can't see the forest for the trees.

He's doing his job intepreting the Constitution correctly. I thought you believed in a representative democracy not a star chamber of non-elected geezers doing as they please. Scalia's on the mark and was quite clear in the OP:

If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

[Gary and Alla 3,694]

That is why there are 9 Justices. So the opinion of one is not in agreement with some, most or all people on this issue. So what? I guess you know how he will vote if the matter comes up before the court. If four other justices agree with him on that matter, then a ruling will be made.

His statements in a magazine interview have no legal force.

[^_^ 5,021]

If four other justices agree with him on that matter, then a ruling will be made.

This matter has been ruled on a long time ago.

In 1971, the Supreme Court unanimously ruled that they were protected...

u-n-a-n-i-m-o-u-s-l-y

Edited January 4, 2011 by \

[Danno 1,228]

Steve is all for The S.Court deciding everything ... Until President Palin Confirms 2 or 3 new Justices.

[mawilson 2,133]

Scalia considers himself a strict constructionist, which is another name for a narrow-minded judge who can't see the forest for the trees.

Strict construction means applying the law as written. The idea that the words

could be "reinterpreted" to suit one's agenda is so utterly preposterous, it boggles

the mind to think that anyone of sound mind would believe it's a good idea.

[^_^ 5,021]

Steve is all for The S.Court deciding everything ... Until President Palin Confirms 2 or 3 new Justices.

There will never be a President Palin, so put your ####### back in your pants.

There might be a President Huckabee or Romney or Huntsman or a few others. But never a President Palin unless we're talking about President Bristol Palin in 2028.

[Danno 1,228]

There will never be a President Palin, so put your ####### back in your pants.

There might be a President Huckabee or Romney or Huntsman or a few others. But never a President Palin unless we're talking about President Bristol Palin in 2028.

I knew you would come out of the woodwork within seconds of my post.

[ready4ONE 5,400]

I don't see the huge issue of what Justice Scalia is quoted as saying, he is talking about when the amendment was written not saying the SC got it unanimously wrong in 1971.