Women And The 14th Amendment
Posted by Michelle Moquin on January 25th, 2011
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 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.”
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.
UPDATE: Observers have pointed out that Scalia and his interviewer, UC Hastings law professor Calvin Massey, are wrong when they say that no one ever considered the 14th amendment applying equal protection for women. In fact, Elizabeth Cady Stanton, Susan B. Anthony and other women’s rights advocates publicly pushed to include explicit mentions of women’s rights in the 14th and 15th amendments. (The National Woman Suffrage Association was born out of Stanton and Anthony’s opposition to the shape of the 14th amendment.) Republican Rep. Thaddeus Stevens introduced a petition for universal suffrage in 1866.
Their version, however, was defeated, and as Linda Gordon, NYU professor of history, told The Huffington Post, “the women who had led that felt they had been absolutely sold out by the post-Lincoln Republican Party because the 14th and 15th amendments are the first times that this notion of black people as a separate category was added” to the Constitution.
Legal scholar Jack Balkin writes that while the 14th amendment doesn’t end up explicitly mentioning sex, that doesn’t mean it doesn’t grant women equal protection:
First, The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.
Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.
Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment’s guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children’s Hospital, decided immediately after the ratification of the Nineteenth Amendment.
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January 25th, 2011 at 7:04 am
So when do we start the impeachment process on Scalia? I can name at least 2 others that can go also. I’m done with their ‘life sentence’ of imposing head-up-their-conservative-ass ideas and they have the power to do something about it. Frankly, that scares me. – ZL
January 25th, 2011 at 9:33 am
Missing White Girl Syndrome:
Phylicia Simone Barnes.
What? Haven’t heard of her? That’s no surprise. The 16-year-old African American girl disappeared without a trace three days after Christmas from her half sister’s Baltimore home.
While the case has been reported on Good Morning America and the Today Show, the media is being criticized for not giving the story more national attention. In the first three days after the disappearance, while everybody was reporting on birds dropping out of the sky and dead fish, local authorities were pulling teeth to get information out about the scholastic achiever who was on track to graduate from her charter school early and was looking at colleges.
The argument is that had this girl been white, the Natalee Holloway-obsessed Nancy Grace and the rest of the media would be giving the case much more extensive national coverage. It’s been said that there is a phenomenon called, “Missing White Girl Syndrome.” We fall all over ourselves for the Laci Petersens and the Chandra Levys while ignoring the Latina Evelyn Hernandez’s and others who are in a similar plight but don’t have the good fortune of being pretty and white.
The idea of equality for all is just that, just an idea, not a principle
January 25th, 2011 at 10:14 am
Scalia was promoted to us as a deep thinker. I have always said that when the white boy goes out of his way to make us believe that one of theirs is an exceptional scholar beware because that means they are pushing the acceptance of the man’s edicts as worthy because he made them.
They are imploring a debating tool in the reverse. The one that says if you can’t challenge the issue, then attack the issuer’s credentials. Here they are trying to make the issue immune to challenge because they have told us the issuer is way above us in his intellectual field.
Since the beginning of his nomination to the Supreme Court, we have been bombarded with tales of Scalia’s brilliance on all subjects concerning the Constitution and the Law.
His employers are now sure that we have been so indoctrinated by their propaganda about his purported legal acumen that they can tell him anything to say and we as a society will be too intimidated to challenge his idiotic utterings.
The man is an idiot. He has as much legal IQ as the average law student. If you check the things he as said and his rulings you will find that he is just another bought and paid for bureaucrat.
He mades rulings based on his political and religious ideology and gets his law clerks to write something to justify them. That is when he is not just ruling for the money he has been paid to rule for.
He is signaling that he will rule against women vs white men on any issue involving their attempt to upset the Affirmative Action white men have been receiving from the government since its beginning as a nation.
As I have said before, there is nothing dumber on the planet than the American white woman. She is still the only female group who has achieved the vote that has not elected a female leader of her country. Nor has she come close to putting an equal number of females in the Senate.
White women elect white men to rule them and then collectively beg those white men to treat them with respect. How does one respect such inanity?
I digress.
Scalia’s ignorance in making the above statement presupposes that since the Constitution was written by white men for white men, a new law has to be written to give equality to white women and OTWs. It seems that Scalia has taken it upon himself to give the country back to white men.
Any who accepts that as Constitutional acumen are just plain idiots. This is the same asshole who claimed to be a States Rights man first vs Federal Rights when he interpreted the Constitution.
Yes, that was until it was necessary to find a Federal right over the states so he could disallow Florida’s state right to a recount and rule for a Federal right to none.
He switched positions to allow him to announce Bush as President. Thereby creating the only time in America history that a President of the United States of America was elected by one man.
Flush with that accomplishment he feels that he can now state to all his intentions of ruling for the white man against in encroachment upon the 200 plus years of Affirmative Action by the Government giving preferential treatment to white men.
Heretofore he and his racists colleagues on the bench got away with protecting Affirmative Action for the white boy by claiming that they were States Rights advocates. Meaning that anything not specifically given to the Federal Government by the Constitution they would rule belonged to the states.
Racists use that canard because on a state level the citizen has less civil rights protection. In fact on a State level a citizen can have by majority vote his civil rights selectively taken away from him/her via race, gender, or sexual choice.
It was on a State level that interracial marriage was outlawed, men given the right to beat(as long as the cane was not bigger in circumference than his thumb) and rape their wives,enact slavery, employ racial discrimination, and even make it a misdemeanor to murder an OTW. Today they use that same State’s Right ploy to disallow marriage by gays.
So you can see why bigots like Scalia are all to proud to claim that they are States Rights advocates. It gives them cover to do their dastardly deeds in the open.
Scalia is just a white boy selling out for all he can pocket while being a racist bigot on the side.
Robert
January 25th, 2011 at 10:19 am
Better Travel with Dogs
Justine Lee, DVM
If taking a long trip by car, see your veterinarian for a canine health certificate, which confirms the dog’s good health.
Authorities may ask to see one if you are stopped. Keep your dog in the back of the car for safety. Give the dog a rest stop whenever you take one. Have plenty of water available.
If traveling by plane, check with the airline — each has its own rules. Carry a small dog aboard if possible in a dog carrier that fits under your seat — many airlines allow this, usually for a fee of about a $100 each way.
Bottom Line/Personal interviewed Justine Lee, DVM, veterinary emergency critical-care specialist and associate director of veterinary services, Pet Poison Helpline, writing in Prevention.
January 25th, 2011 at 10:20 am
Ethel:
I never thought about it that way. But I guess you have a point.
January 25th, 2011 at 3:38 pm
Robert why shouldn’t we white males be proud of what we did to make this nation. Minorities and white females have been nothing but conveniences along the way when they weren’t being distractions.
Why white women think they are owed something because they are white is baffling. We fuck them same as we do the minorities.
Steve
January 25th, 2011 at 3:39 pm
Check this link out if you are considering a vacation. http://www.malaya.com.ph/jan26/liv1.html and you don’t live on Guam
Hafa Adai
January 25th, 2011 at 4:15 pm
Sitting at a Desk All Day Can Cause Sleep Apnea
T. Douglas Bradley, PhD
Centre for Sleep Medicine and Circadian Biology
When you sit for long periods, blood and water pool in your legs. If you sit long enough and collect a great deal of fluid in your legs, when you lie down to go to sleep, gravity causes this fluid to flow to your neck.
In some people, so much fluid moves to their necks that it puts pressure on the throat, causing it to collapse from the pressure, leading to obstructive sleep apnea and making it difficult to breathe and get a good night’s sleep.
Self-defense: Take a walk every hour while you’re at work to prevent fluid retention in your legs.
Personal interviewed T. Douglas Bradley, PhD, professor of medicine and director, Centre for Sleep Medicine and Circadian Biology, University of Toronto, Canada, and leader of a study published in American Journal of Respiratory and Critical Care Medicine
January 25th, 2011 at 6:27 pm
So let me get this straight according to the asshole(thank you Robert) Scalia the CITIZENS or PERSON referred to in this clause in the 14 Amendment( “citizens of the United States” and “person within its jurisdiction the equal protection of the laws.”) refers to only males and maybe to him only white males.
Thank you again Robert for reminding us what an idiot he is, but I think you were a bit generous to give him credit for having the legal acumen of the average law student.
Yolanda
January 25th, 2011 at 7:46 pm
wow, ok Steve, why don’t you print a name and address. You pretty much covered everything…
January 26th, 2011 at 6:55 am
Yes Steve, let’s have an address so i can come kick your ass, it won’t be convenient (neither will I) but you may be distracted by my very long lovely leg just before my size 9 swings upside your pathetic head. Oh dear – not so zen? – tough shit, you deserved that and a lot more….ZL
PS women watch your backs, one of you is probably married to Steve or a ‘Steve’