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Manhattan Diary by Cahir O'Doherty

Women have no constitutional protection against discrimination

Posted on Tuesday, January 04, 2011 at 08:44 AM

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Just how shockingly unreconstructed and far right are Supreme Court Justice Antonin Scalia's views? In an interview with the California Lawyer this week Scalia was asked the following:

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."

Scalia continued: "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.

When asked what do you do when the original meaning of a constitutional provision is either in doubt or is unknown, Scalia replied:

"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 we have an answer to a lot of stuff - especially the most controversial: whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. I don't even have to read the briefs, for Pete's sake."

Tune in next week when I assume he'll find a rational for slavery. At this stage his lamentable attempts to read the minds (and hew to the letter) of people who have been dead for hundreds of years has become an absurdity.

It's especially shocking in the light of the decades of precedents and the numbers of justices who have agreed there is indeed protection in the 14th Amendment against sex discrimination

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eiriamach | Jan 09, 2011, 02:18 PM EST

Vitriol and ideologically motivated ad hominems (seamusmoore / colkelly), ad populums (ALLCAPS ranter), over-simplifications and misrepresentations (FastEddy [it's not about "Special Rights"; it's about equal rights!]) --these fallacious modes of thinking are all too obvious in some of the posts below. I will never oppose freedom of speech--an tsaoirse cainte!--but I won't refrain from exercising my own freedom of speech to comment on how over-emotionally, illogically and destructively some people choose to exercise theirs.

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seamusmoore | Jan 08, 2011, 03:32 PM EST

@colkelly excellent, well-written comment laying out how the courts and the legislature are supposed to function. As for Cahir, I have given up the ghost with respect to paying him any heed. He is after all, the ARTS editor of the Irish Voice, yet he is allowed to pontificate on legal and economic issues for IC, as if he would know anything about them, particularly on this side of the pond. He seems to have replaced Brendan Fay of ILGO as Niall's favorite Irish personification of the Edmund Spenser poem "The Faerie Queene". His sexual orientation, which quite frankly is his own business and none of my concern, appears to be the only qualification that he has having a blog.

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Watereskhill | Jan 06, 2011, 12:33 AM EST

A Dictionary and Thesaurus would be of benefit. And fewer tantrums.

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Searlit | Jan 05, 2011, 11:22 AM EST

Right on, again eiriamach!

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eiriamach | Jan 05, 2011, 10:20 AM EST

The Equal Rights Amendment, introduced in every Congress since 1923, would provide the explicit guarantee of equal rights to women that Scalia thinks (mistakenly) is missing from the 14th Amendment. The argument against the ERA has been that it is unnecessary because the 14th Amendment already guarantees such rights by giving Congress the power to pass civil rights laws, as it did in 1964, with Title 7 of the Civil Rights Act protecting the equal employment rights of all women. If this court strikes down any anti- discrimination legislation on the grounds that the Constitution does not warrant it, then there will be an groundswell reaction in favor of amendment. The ERA is straightforward, not subject to debate about interpretations: "1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. 2. The Congress shall have the power to enforce. . . . Visit equalrightsamendment [dot] com for its history.

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eiriamach | Jan 05, 2011, 10:12 AM EST

Let Scalia rant! He's running scared away from progress toward equality too long delayed. With the most recent Supreme Court appointment, Elena Kagan, three female justices will be voting on the progressive side of issues like discrimination, with an occasional male justice joining them and the conservative male justices, like Scalia, voting on the conservative side. Women voting on one side, men on the other, with conservative interpretations prevailing most of the time: it's sure to be embarrassing for the conservative Catholic male Justices, and Roberts' desire not to have split votes is bound to be frustrated. I expect such a male/female split when the Supreme Court decides about the legality of class action in the Wal Mart Case, in which lower federal courts have allowed 1,500,000 women to bring a single discrimination suit with $1Billion at stake. How will a male-female split vote stand up to public scrutiny?

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FatherVol | Jan 05, 2011, 08:12 AM EST

I'm with you Coljelly. Pass me a piece of the torte please.

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SingleDonald | Jan 04, 2011, 08:30 PM EST

colkelley, I'm basically with you. However, there are extreme social issues where I believe the courts are justified in practicing "judicial activism". The Brown vs School Board of Topeka, Kansas, was one such case. The U.S. Supreme Court ruled, in 1954, that "Separate, but Equal" violated the U.S. Constitution. Legislatures, especially in the Deep South, were reluctant to act, so the Supreme acted, striking a blow in favor of Social Justice.

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adrienrain | Jan 04, 2011, 01:28 PM EST

That's 'tort' not 'torte.' LOL

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adrienrain | Jan 04, 2011, 01:27 PM EST

So what of Ronald Reagan's contention that no Equal Rights Amendment, or other legislation establishing women's equality, was needed because women's equality should be easily established by the courts on a a case-by-case basis? And how is ruling that corporations (which are established by groups of people to limit tax and torte liabilities) are actually citizens with full constitutional rights (tho' again NOT citizens' obligations - not even to the Grim Reaper) not a HUGE bit of judicial activism, canceling out the will of the legislature? Oh, that's right - These ultra-rightists just make it up as they go along...............

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PhlutiePhan | Jan 04, 2011, 01:12 PM EST

All that Scalia is saying is that the legislature is what dictates law in our society. The judges are there to interpret the law not to dictate it. We are a representative democracy and not a "pure" democracy. If you "stand on the beach" on the "left coast", you would think that Coney Island is "far to the right". In reality, it is "more to the left" than California.

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Nicomax | Jan 04, 2011, 12:54 PM EST

I believe there is also nothing in the Constitution from preventing discrimination against overweight, balding Italian men.

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FastEddy | Jan 04, 2011, 12:35 PM EST

"Just how shockingly unreconstructed and far right are Supreme Court Justice Antonin Scalia's views?" ... Not! Associate Justice Scalia's views are that of any main stream US Citizen, to wit: No Special Class has any Special Rights under the US Constitution, men, women, gays, government or Irishmen included. Ask Him.

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lecole54 | Jan 04, 2011, 12:14 PM EST

On this basis -- original intentions of the founders -- perhaps we should re-institute slavery, then?

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cillowen | Jan 04, 2011, 11:47 AM EST

a Hugo Chavez-style governance is what the sharks fear more than anything. Why have multiple oligarchs calling the shots, positioning the tweedle dee politicians whom they own before us. Disaster afer disaster ensues thanks to such a system.

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