Justice Scalia: Women are not entitled to equal protection under the 14th Amendment

Posted by AzBlueMeanie:

With the attention of the Arizona political media focused this week on the conservative assault upon the citizenship clause of the 14th Amendment, they may have missed this story: Justice Antonin Scalia's assault upon the equal protection clause of the 14th Amendment.

Justice Scalia is the "constitutional scholar" (sic) that the Minnesota Loon, Rep. Michele Bachmann, has retained to tutor the incoming class of Tea-Publican congress members this week. She may want to make sure her deposit is refundable.

The Huffington Post reports today Scalia: Women Don't Have Constitutional Protection Against Discrimination:

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 equal protection clause of the 14th Amendment 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."

Justice Scalia's "originalism" construction of the equal protection clause, carried to its logical extreme, would limit equal protection to African-American males (newly freed slaves at the time of enactment) despite the fact that in debating the provisions of the 14th Amendment, in particular the citizenship clause, the Congress debated at length the amendment's intended application to other minority classes as well, i.e., Chinese, Native Americans, and "Gypsies," for example.

The fact that women as a class — women were citizens but considered "chattel property" of their husbands or families by many states at that time and did not possess the right to contract or the franchise to vote — were not the subject of much debate in congressional consideration of the provisions of the 14th Amendment seems to be of particular relevance to Scalia.

In fact, Adam Cohen makes this point in his article for Time from last September, Supreme Court Justice Scalia Takes On Women's Rights:

Indeed, Justice Scalia likes to present his views as highly principled — he's not against equal rights for women or anyone else; he's just giving the Constitution the strict interpretation it must be given. He focuses on the fact that the 14th Amendment was drafted after the Civil War to help lift up freed slaves to equality. "Nobody thought it was directed against sex discrimination," he told his audience.

But even Justice Scalia would have to concede that under the court's own rules of statutory construction, the congressional record of debate is only persuasive and not determinative in interpreting the meaning of a provision of law, as the Supreme Court has said with regularity.

And Justice Scalia is ignoring the Supreme Court's most important rule, that of judicial precedent (stare decisis), as he is wont to do. Adam Cohen continues:

Yet, the idea that women are protected by the equal-protection clause is hardly new — or controversial. In 1971, the Supreme Court unanimously ruled that [women] were protected, in an opinion by the conservative then Chief Justice Warren Burger. 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.

Justice Scalia represents movement conservatism's school of "cafeteria plan" constitutional interpretation: they pick and choose only those provisions with which they agree and try to argue out of existence through legal sophistry those provisions with which they disagree. This is a dangerous and destructive practice. As Adam Cohen explains:

Justice Scalia doesn't even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 — because they said equal protection required it. Is there really any reason to believe that the drafters — who, after all, were trying to help black people achieve equality — intended to protect President Bush's right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)

Even worse, while Justice Scalia argues for writing women out of the Constitution, there is another group he has been working hard to write in: corporations. The word "corporation" does not appear in the Constitution, and there is considerable evidence that the founders were worried about corporate influence. But in a landmark ruling earlier this year, Justice Scalia joined a narrow majority in striking down longstanding limits on corporate spending in federal elections, insisting that they violated the First Amendment.

It is a strange view of the Constitution to say that when it says every "person" must have "equal protection," it does not protect women, but that freedom of "speech" — something only humans were capable of in 1787 and today — guarantees corporations the right to spend unlimited amounts of money to influence elections.

Just for the sake of argument let's assume that Justice Scalia's wrong-headed interpretation of the equal protection clause is correct. Then would this not support an amendment to the Constitution guaranteeing women equal protection under the Constitution? I seem to recall that we were told that the Equal Rights Amendment was "not necessary" to secure equal protection for women under the Constitution by many of the same conservatives. Justice Scalia now says otherwise.

Perhaps civil rights and women's rights organizations should seize this opportunity to reinvigorate the movement and push for the adoption of a new Equal Rights Amendment to decide this "open question" once and for all. And then ladies, we can all give this "superannuated judge who has been there too long" an "under-the-chin hand gesture" that some say is a Sicilian obscenity, and that Justice Scalia says is a sign of being "dismissive" — as in "I don't give a damn about your constitutional rights."

h/t photo Boston Herald.

UPDATE: I had entirely forgotten about this clip of Stephen Colbert delivering a slam-dunk on Justice Scalia. H/t Angry Black Lady Chronicles.

UPDATE: Editorial opinion in the New York Times on Wednesday, There Scalia Goes Again:

Fortunately, Justice Scalia’s views on women are not the law of the land.

In a slew of rulings since 1971, often with conservative justices in the majority, the Supreme Court has consistently rejected Justice Scalia’s constricted view of what the Constitution requires. It would be nice if he underscored that fact the next time he spoke out on the subject.