CLM: 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?
Scalia: 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.
Wow! This means that it is perfectly legal to discriminate against women… pay them less, keep them out of major universities, require them to accept conservative sex laws… and there is nothing in the Constitution (read: the 14th Amendment) to stop it.
This from the Huffington Post:
“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.”
Looking a little farther into this issue of Scalia versus Women is this piece from the Young Turks from last September:
This gives less respect for the Supreme Court’s Conservative majority than I had already.
- Scalia: Women Have No Constitutional Protection Against Discrimination (towleroad.com)
- Scalia: The Constitution Does Not Prohibit Gender Discrimination (themoderatevoice.com)
- Scalia Says Constitution Allows Discrimination Against women, Gays (themoderatevoice.com)
- Women Bewarned, You Have no Constitutional Rights Protecting you from Discrimination (zwingliusredivivus.wordpress.com)
- Justice Scalia Will Teach Tea Party’s Constitution Class [Video] (gawker.com)
- Antonin Scalia: The 14th Amendment Should Not Apply To Homosexuals (pinkbananaworld.com)
- Brian Ross: Big Brothers Are Watching You (huffingtonpost.com)
- Justices Scalia And Thomas’s Attendance At Koch Event Sparks Judicial Ethics Debate (huffingtonpost.com)
- Republican Billionaires Arrange Secret Meeting to Plot Evil [Conspiracies] (gawker.com)
This piece from the Young Turks program was posted on The Fifth Column and I pass it on here: