Supreme Court justice: No protection for women in Constitution

By Daniel Tencer
Monday, January 3, 2011 22:53 EDT
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Roe v. Wade ‘a total absurdity,’ Scalia told audience

Supreme Court Justice Antonin Scalia’s belief that women have no protection under the constitution could herald the return of officially-sanctioned gender discrimination, a prominent Washington lawyer says.

Justice Scalia reiterated his position that the Constitution’s 14th Amendment doesn’t guarantee protection against discrimination on the basis of gender or sexual orientation in a magazine interview published this month.

“Certainly the Constitution does not require discrimination on the basis of sex,” Scalia told California Lawyer. “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.”

Scalia, long known to be a constitutional “originalist” and a conservative stalwart on the Supreme Court, argued that it’s up to legislatures to pass laws that protect women against discrimination, and doing so wouldn’t be unconstitutional.

“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,” he said. “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.”

Scalia’s belief that the Constitution simply has no view on the question of gender didn’t sit well with Marcia D. Greenberger, the Washington-based founder of the National Women’s Law Center.

“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” Greenberger told the Huffington Post’s Amanda Terkel. “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.”

Greenberger went on to suggest that, if Scalia’s attitude becomes the majority view on the court, gender equality could suffer severe setbacks.

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.

For the time being, Scalia’s strictly literal interpretation of the Constitution remains a minority viewpoint on the country’s highest court.

The Supreme Court has previously ruled that women are protected from discrimination under the 14th Amendment. In 1971, it ruled in Reed v. Reed that “to give a mandatory preference to members of either sex over members of the other … is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.”

Scalia’s position on gender and sexual orientation discrimination is nothing new. The Reagan-appointed justice told an audience last summer that the 14th Amendment doesn’t protect women because that wasn’t the intent of the amendment when it was written in 1868.

He also said the Roe V. Wade decision that struck down laws against abortion was based on “a total absurdity.” Scalia argued that the Supreme Court’s rationale — that abortion bans violated people’s right to privacy — was nonsense because the Constitution doesn’t recognize any right to privacy.

In 1965, the Supreme Court ruled in Griswold v. Connecticut that a state ban on contraceptives was unconstitutional because it violated the “right to marital privacy.” That ruling set the basis for Roe v. Wade, in which the court overturned bans on abortion on the grounds that they violated privacy.

Scalia has long advocated overturning Roe v. Wade, though it’s believed the court wouldn’t have enough votes to overturn it in a direct challenge.

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