Scalia - Women are not persons

According to conservative Supreme Court Justice Scalia in a recent interview in California Lawyer magazine, women do not have protection under the Constitution from discrimination.

"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. "

http://www.callawyer.com/story.cfm?eid=913358&evid=1

My understanding of the 14th Amendment is that it prohibits discrimination against its citizens regardless of sex.

"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."

So Justice Scalia seems to be saying that if the legislatures should pass laws discriminating against women, that is their right and the Equal Protection clause does not apply to protect against such discrimination. This despite the ruling of the Supreme Court in 1971 holding just the opposite. If the Equal Protection clause does not apply to women, how about race or religion. Can the legislatures also ban Jews from holding office or purchasing land if Scalia is right?

Scalia is interpreting the constitution in context and stating that if other groups (besides blacks) are to have equal protection under the law, then the legislatures need to pass such laws. That view certainly prevents judicial activism and puts the onus on the legislatures to enact laws according to the will of the people, rather than being dictated by the central committee.

Women are people? <GD&RVVF>

I'd expect nothing less from Scalia... At least he's predictable.

Since he cast the sole vote in favor of allowing the Virginia Military Institute to continue denying women admission, one cannot expect a Neanderthal to stand upright.

Most women are people, however some ex's may not be.

That's gotta be the most misleading subject line for a post in quite a while.

Scalia is arguing against judicial activism. Here's the quote in context with the original question...

"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. "

He doesn't ever say, or even imply the women are not persons. He's just saying that, for example - a private academy chooses to be a male only school, there is nothing in the constitution that prohibits that. If the people of a state choose to enact legislation to make male only schools illegal, they can do that.

"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."

That applies to laws, that applies to governments. That doesn't apply to private groups.

That same passage is used very often to argue against legislation regarding racial hiring quotas and minority owned business requirements. Forcing the government to award a contract to a female owned business simply because of her internal plumbing isn't giving the male owned competitors equal protection.

But is not the 14th Amendment part of the Constitution? And does it not state that "nor deny to any person within its jurisdiction the equal protection of the laws." According to Scalia, passing laws discriminating against women would not violate the constitution and the Equal Rights clause can simply be ignored. Laws that favor one sex, race, religion are not unconstitutional according to his interpretation despite the 1971 Supreme Court ruling in Reed v. Reed that held that women do have a constitutional right against discrimination. Scalia is flying on his own here, against the clear meaning of the 14th Amendment, and against numerous previous court decisions.

Something the Dog Said wrote: But is not the 14th Amendment part of the Constitution? And does it not state that "nor deny to any person within its jurisdiction the equal protection of the laws." According to Scalia, passing laws discriminating against women would not violate the constitution

I had to quit reading right there. If that's your premise, the rest of what you said is based on a inaccurate statements.

The constitution says you can't deny a person equal protection of the laws. It says that Colorado couldn't have Amendment 2 because it restricted the ability of legislators to protect gays. It doesn't say that the BSA has to be forced to allow gay den leaders.

The constitution forbids inequity in legislation, it does not address discrimination.

Nobody that matters wrote:

Something the Dog Said wrote: But is not the 14th Amendment part of the Constitution? And does it not state that "nor deny to any person within its jurisdiction the equal protection of the laws." According to Scalia, passing laws discriminating against women would not violate the constitution

I had to quit reading right there. If that's your premise, the rest of what you said is based on a inaccurate statements.

The constitution says you can't deny a person equal protection of the laws. It says that Colorado couldn't have Amendment 2 because it restricted the ability of legislators to protect gays. It doesn't say that the BSA has to be forced to allow gay den leaders.

The constitution forbids inequity in legislation, it does not address discrimination.

The Supreme Court in 1971 Reed v. Reed disagreed with you and found that laws solely based on gender discrimination violated the Equal Rights Clause of the 14th Amendment of the Constitution.

The Supreme Court upheld this again and again, such as in the 1973 case Fronterio v. Richardson finding that
[T]he sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

Scalia is wrong and you are wrong.