Scalia: Women Don't Have Constitutional Protection Against Discrimination

Discussion in 'Soap Box' started by Bob26003, Jan 3, 2011.

Thread Status:
Not open for further replies.
  1. Bob26003

    Bob26003 Well-Known Member


    Republican Scalia: Women Don't Have Constitutional Protection Against Discrimination

    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.


    Typical conservative: good is bad, up is down, war is peace, empathy is weakness, prejudice is admirable etc etc
  2. nolonger

    nolonger Well-Known Member

    At times like these, I'm thankful I don't live in the "United" States of America.

    In Aus, we have virtually no discrimination(as far as I can see). No gay discrimination, no sex discrimination, same goes for religion etc etc. A constitution is - at times - like religion. It just creates more problems then it fixes. Sure, my country has a constitution, but it doesn't go along the lines of the same things that the USA's one does.

    But I guess its the fact that America basically rebelled(spelling) against England, in comparison to becoming a Commonwealth and still remaining partially under the union jack. So back in the day, they were probly trying to improve the rights of people while creating the constitution.

    Our(Australia) constitution mentions very little about our rights etc. I think it pretty much just states how the country is to be run and what happens with voting and Govenor-Generals/when the Queen gets pulled into the equation. We have laws sanctioning against discrimination. Because our consitution isn't so 'embelished'/complicated by stating various rights and creating discriminatory loop-holes, we've managed to keep the country fairly equal. In saying that, we still have some areas of equality to clear up, but I'd say we are definately on the road to a fairer future. We also aren't an 'extremist religious zealot' kind of country, in the US 'god' seems to be mentioned every 4 seconds, unlike over here. But that's another story :tongue:.

    Sometimes, keeping things simple and straight forward is always better :).
  3. Prinnctopher's Belt

    Prinnctopher's Belt Antiquities Friend SF Supporter

    Thank goodness he's in the minority of the nine justices we have, so his opinion will never count toward any decision related to this.
Thread Status:
Not open for further replies.