Scalia: 14th Amendment Doesn't Protect Against Gender Discrimination
In the January 2011 edition of California Lawyer, United States Supreme Court Justice Antonin Scalia explains how the 14th Amendment to the United States Constitution does not protect against sex discrimination. Here is what was published, in full:
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.
Here's the text of the 14th Amendment and below is the portion in question:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
In the 1971 case, Reed v. Reed, the Court held that the 14th Amendment's equal protections applied to women.
Despite the 30 years of case law now in existence that unwaveringly supports that decision, and for those who know anything about Scalia, his position should not come as a surprise. He's even voiced this very particular opinion before, ironically also in California.
Reax so far has been as we might expect - swift and plenty - except from conservative women*.
Apparently, some folks are genuinely shocked that a Supreme Court justice could so profoundly misread the crystal clear words of the Constitution. I don't see why. Scalia doesn't understand the Declaration of Independence either.
I can't publish Melissa McEwan's blog post title here because she uses a curse word in it to describe Scalia, but here's what else she wrote at Shakespeare's Sister, which follows the focus on intellect:
Scalia isn't a stupid fella. He's just a bigot. A bigot with a lifetime appointment to make decisions about the rights and lives of people against whom he holds deeply entrenched bigotry. In a decent country, there would be outrage about that unambiguous injustice sitting square in the middle of the Supreme Court. But in this country, it barely gets noticed. After all, there's no explicit right to fairness for marginalized people in the Constitution. As Justice Antonin Scalia will happily tell you.
As to legal sufficiency of his argument, from Marcia Greenberger and the National Women's Law Center:
"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.
Joan Walsh at Salon.com makes a fascinating observation and connection to prior Scalia positions:
What's most preposterous is that Scalia was part of the most shameful and flagrantly political use – it was abuse, really -- of the 14th Amendment in Supreme Court history, when he joined the majority in the Bush vs. Gore decision and stopped the Florida recount, brazenly using "equal protection" as one of the cornerstones. The pro-Bush SCOTUS majority argued that the white, wealthy George W. Bush would have his rights violated if if Florida counties used different procedures to recount votes and, in cases of some ballots, divine voter intent. Now, if Scalia really thought the 14th amendment only intended to make former slaves full citizens, he should have applied it to make sure black voters and black votes were treated fairly in Florida (and in fact, we know they were not.) What a joke.
I just finished reading Giants, and a good portion of the book deals with the coming into being of the 14th Amendment. The battle over whether it would extend to or exclude women was fierce and real but in the end, as we know, only black men were explicitly given the right to vote. And that's in part where this idea that it doesn't extend to women -- or anyone else for that matter beyond that -- comes from.
*I searched multiple times to find conservative women commenting on this, and found only one post, by law professor and blogger, Ann Althouse. In that entry, she actually says nothing about Scalia's position. The comments, however, are replete with opinions about it.
As I see it, the real problem for conservative women, especially those who recall why they fought the Equal Rights Amendment, which would have been a separate amendment specifically to prohibit discrimination against women, is that they relied on the 14th Amendment's application to gender discrimination as the reason why the ERA was unnecessary. If you forget how that argument goes, refresh your memory with this clip from The West Wing.
So the question now is, if you're a conservative woman who always believed that the 14th Amendment protected you, but now Scalia, the first or second most conservative of the Supreme Court justices says, well, no, it doesn't, what do you do?
That's a blog post waiting to be written by a conservative woman who is pro-woman's rights.
More reading on the subject: