Scalia: Women Don't Have Constitutional Protection Against Discrimination (Clinton, Kennedy, school)
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Having re-read Scalia's remarks (from 2011), I recognize the logic of what he says. When the 14th Amendment was ratified, the people who wrote the amendment and who voted for it, had no intention of according equal rights to women. So Scalia says that it's up to legislatures to pass laws prohibiting discrimination against women. Since the Constitution doesn't REQUIRE discrimination against women, his argument is that the laws against discrimination would stand Constitutional review. Perhaps they would, but the lawsuits that have been filed regarding discrimination against women have relied on the 14th Amendment and equal protection, so precedent suggests that Scalia's interpretation is missing some key concepts here.
And this is relevant to us because SC has filed an amicus brief regarding gay marriage that says straight out that since the Constitution allows discrimination against women, that it also allows discrimination against gay people. They took Scalia's idea and ran with it.
I think, instead, that the language of the 14th Amendment specifies "citizens", according all citizens equal protection under the law, and since we freely assign citizen status to both women and to gay people, that the 14th Amendment and the Constitution does prohibit such discrimination. Because as a nation we've changed our thinking about who our citizens are.
Justice Thurgood Marshall has been quoted as saying, "The Constitution does not prohibit legislatures from enacting stupid laws." Perhaps Justice Scalia was riffing along these lines? Although I don't think Justice Scalia thinks these laws are stupid.
The Constitution doesn't say that discrimination against women is okay.
The Constitution DOES say that citizens of the United States are afforded equal protection under the law.
Here's what the Constitution says about the law in the First Amendment:
Congress shall make no lawrespecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Got news for you. The Constitution does place laws upon people.
False.
The First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Here's what the Constitution says about the law in the First Amendment:
Congress shall make no lawrespecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The key words: "shall make no law"
& the State & Local Jim Crow laws were enacted mandating 'separate but equal' status. 'The Constitution does not prohibit legislatures from enacting stupid laws.' Were the Jim Crow laws constitutional & stupid or unconstitutional & stupid?
I can't remeber the last time I saw scalia's name on a ballot with an R next to it.
I can assure you that the Federalist Society would not have any non-Republican speak at their meetings. Not to mention, he was an adviser to the Federalist Society.
& the State & Local Jim Crow laws were enacted mandating 'separate but equal' status. 'The Constitution does not prohibit legislatures from enacting stupid laws.' Were the Jim Crow laws constitutional & stupid or unconstitutional & stupid?
In regards to the freedom of religion and the exercise thereof, freedom of speech, freedom of the press, the freedom of peaceable assembly, and the freedom to petition the government for redress of grievances: unconstitutional. Period.
The First Amendment is very clear. The key words are: shall make no law
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
In regards to the freedom of religion and the exercise thereof, freedom of speech, freedom of the press, the freedom of peaceable assembly, and the freedom to petition the government for redress of grievances: unconstitutional. Period.
The First Amendment is very clear. The key words are: shall make no law
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Are you saying the State & Local Jim Crow laws were constitutional & no comment on their rationale? One is allowed to have an opinion, is one not?
In reading through this thread, I am a bit surprised that our numerous Constitutional Experts did not bring up a point that I think Justice Scalia was alluding to: to wit, the failure of the "Equal Rights Amendment" to be ratified by the several States.
The proposed Amendment failed by three states, upon expiration of the time limit (extended once) in 1982.
It could be that Justice Scalia was thinking about the failure of this Amendment to be ratified. If I understand his viewpoint, the original intent of the 14th Amendment did not include 'women', but, as he reasons, the wording of the amendment does not mandate discrimination against women, or, on the other hand, prohibit it.
Many were for the Equal Rights Amendment, to make it plain that the female gender would enjoy equal protection under the laws. I recall that one reason for the failure to pass was due to the thinking of many that the amendment was not necessary: that women had, or would achieve, equality through other legislative means. There were other reasons propounded back in those days (for not passing the amendment), ranging from silly to thoughtful.
My linked article notes that a new such Equal Rights Amendment is proposed with each new legislative session, only to be stillborn.
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