The Huffington Post (and other outlets, so don’t kill the messenger’s messenger) reports that Justice Scalia doesn’t think the equal-protection clause of the 14th amendment applies to women. His view is that Congress would need to pass a law explicitly stating the discriminating against women is illegal; then the courts, or the Court, could support anti-discrimination measure related to women.
Here’s the clause:
“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.”
Here’s one person’s view of Scalia’s stance:
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.”
I don’t know why Ms. Greenberger thinks the Justice’s comments are “shocking.” I mean, what isn’t Scalia atavistic about?
Strictly from a rhetorical standpoint, his view seems curious, as the language of the clause refers to “citizens” and “any person.” (By the way, that “any person” bit seems interesting with regard to non-citizens’ rights.) If American women are citizens and persons, then they seem to be protected, in theory, by the clause.
Of course, Scalia no doubt thinks that if a woman comes before a court and argues that she has been discriminated against because of her gender, the court can’t help her because “gender” isn’t specified.
Let’s get more specific–and personal: Some female members of my extended family were talking over the holidays about women’s not being able to apply for loans not so long ago–simply because they were women. –As late as the 1970s, they claimed. So even if a woman were making more money than her husband and enough to justify a loan, the bank was likely to refuse her the loan, so often (or almost always) the husband would apply for the loan. And the banks were more or less clear about why they were refusing the loan.
I suppose, but don’t know, that this sort of think is covered by this or that Equal Opportunity legislation, so that in banking advertisements one hears, there’s the bit about “an equal opportunity lender”–referring indirectly to times when both women and African Americans were denied loans only because of their gender, their race, or both.
Apparently, Scalia’s thinking doesn’t run in this direction, nor of course does he believe that women have a right to get an abortion–even though the Constitution doesn’t state that the government has the right to prevent a woman from getting an abortion.
Obviously, I’m out of my depth here: Wild Bill is he Constitutional scholar. As a layperson, however, I do find it interesting that Scalia’s faux-passive “I just read what the Constitution says and think about what the drafters meant” is too clever by three-quarters. He interprets the words as much as the next person by choosing--rightly or wrongly–not to include women among “citizens” and “any person.” It’s not as if he held a seance and had the voice of the Constitution say, from beyond, “I din’t mean women.”
And after all, aren’t people discriminated against because of something in addition to their being people? I mean, it’s not like chipmunks run banks and have a bad attitude toward people in general. People run institutions and may discriminate against persons because of social categories into which persons “fall.” And it’s not as if stuff hasn’t happened in history to establish vivid patterns of discrimination against people because of gender, sexuality, disability, and/or race. Nope, says, Scalia, not going to apply to women–wouldn’t be prudent.
So, according to Scalia’s way of thinking, why was it okay for the Armed Forces to discriminate against gay and lesbian citizens and persons in the first place? Because there wasn’t a law that said the Armed Forces couldn’t do that? Is the Constitution really that, well, useless? Inquiring laypersons want to know.
And, this just in from our news desk, Stephen Colbert (noted Constitutional scholar) has weighed in on Scalia’s view: