Wednesday, January 5, 2011

Justice Scalia Justifies Discrimination Against Women and Minorities Using the Fourteenth Amendment

     When it comes to the rights of women (and, by default, LGBT persons and racial or religious minorities), Roman Catholic Supreme Court Justice Scalia has voiced his biblical understanding of The Constitution of the United States.

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.
What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?
I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. ... We don't have the answer to everything, but by God [sic] we have an answer to a lot of stuff...
     "By God [sic]" indeed.

      Here is one response as reported in The Huffington Post:
     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."
     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 [women] 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."
     From a well-articulated editorial in The New York Times:
     Justice Scalia is now getting attention for his outlandish view, expressed in an interview in the magazine California Lawyer, that the promise of equal protection in the Constitution’s 14th Amendment does not extend to protecting women against sex discrimination. Legislatures may outlaw sex discrimination, Justice Scalia suggested, but if they decided to enact laws sanctioning such unfair treatment, it would not be unconstitutional.
     This is not the first time Justice Scalia has espoused this notion, and it generally tracks his jurisprudence in the area. Still, for a sitting member of the nation’s highest court to be pressing such an antiquated view of women’s rights is jarring, to say the least.
     No less dismaying is his notion that women, gays and other emerging minorities should be left at the mercy of the prevailing political majority when it comes to ensuring fair treatment. It is an “originalist” approach wholly antithetical to the framers’ understanding that vital questions of people’s rights should not be left solely to the political process. It also disrespects the wording of the Equal Protection Clause, which is intentionally broad, and its purpose of ensuring a fairer society.

4 comments:

Anonymous said...

Is the process to remove a justice impeachment? If not, then what...he needs to be got out.

Thomas (Tom) Rimington said...

Great post Tom... As always, very informative...

Thanks... Tom

libhom said...

Osama bin Scalia was one of the judges imposing things on society during Citizens United. He is just making excuses for his own misogyny and heterosexism.

Buffy said...

Women and gays aren't humans. Accordingly they don't qualify for rights under the 14th Amendment.