Constitution does not ban sex bias, Scalia says

[Emit]

Source: SFGate



The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

The 74-year-old justice, leader of the court's conservative wing, is also its most outspoken advocate of "originalism," the doctrine that the Constitution should be interpreted according to the original meaning of those who drafted it.

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."

The court has not applied the same exacting standard to discrimination based on sexual orientation, an issue it could reach in several cases now in lower courts, including the dispute over California's ban on same-sex marriage.


~snip~

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=%2Fc%2Fa%2F2010%2F09%2F17%2FMNJE1FFTSO.DTL#ixzz0zx2CdFqm

[Ken Burch]

1. The good news is, this means the Constitution ALSO doesn't forbid

holding a bias AGAINST having sex with Antonin Scalia-a bias I'd assume everyone on DU feels.

[Tunkamerica]

5. most of the planet...

at least the part that's seen him or heard him or smelled him (I assume) or read his writings.

[RUMMYisFROSTED]

43. The good news is he's 74.

[dogfacedboy]

59. Exactly what I was thinking. He's a "short timer".

This Nation will be better off when shit like Scalia has been flushed.

[David Zephyr]

65. And very, very fat.

.

[RandomThoughts]

2. It is keeping the arguement on social issues

while they try and move forward on a authoritarian state.

[Quantess]

3. If that fucking asshole accidentally chokes on a meatball,

and no one is around to give him the heimlich maneuver, well...
oh, well.

[Ken Burch]

6. I'd focus on saving the meatball.

after all, IT hasn't harmed anybody.

[Jackpine Radical]

42. But what would you do with it

after it's been in his throat?

Better to bury it with him, I say.

[Ken Burch]

62. I'd sterilize it, than appoint it to Scalia's vacant Court seat.

The improvement would be immediately noticeable.

[Jackpine Radical]

66. Hmmm… sterilization… Republicans… Hmmmmm

[Socal31]

111. Holy crap you almost owed me a new LCD screen.

Classic.

[McCamy Taylor]

4. Earth to Scalia---the Constitution DOES forbid making a judgment in a case based upon

the identity of the parties---something that he and the rest of the Gang of Five did in Bush v. Gore.

Scalia's name is mud. Forever and ever. What a douche.

[WCGreen]

11. Everyone in the media, the elite media, even those who profess to

"liberal" view him as brilliant.

I view him as a thug who has probably bullied people all his life.

Perhaps he has a very small penis, god and his unfortunate wife are the only ones who know for sure.

Perhaps he is just an insecure ass hole who shouts people down and tells everyone he is brilliant.

We know he isn't because he actually believes the Constitution is a document fixed in time, that it is not fungible, unless, of course, it challenges your own narrow view of what constitutes a constitutional ideal and then original intent is out the window.

It is troubling that people give this ass hat the benefit of the doubt.

How would you like to be a fly on the wall when he and Thomas get together. It's like those old Steve Allen shows where he would have Descartes, Jefferson and then Charo together to discuss weighty issues of the day...

[smirkymonkey]

77. How can he be with all that cholesterol clogging up his brain?

Why are they all so fat and nasty? Scalia, Rove, Cheney, etc.

[Vinnie From Indy]

19. Amen! There is no clearer example of Scalia's LIES than Bush v. Gore

He is a lying piece of shit that is an "originalist" only when it suits his perverted, sick ideology. I hope history accurately records what a corrupt, extremist asshole he has been as a SC justice.

[sharesunited]

7. Retire, Tony. You're holding the nation back.

You too, Uncle Clarence.

[iamjoy]

8. It Doesn't Ban Discrimination

against dumb, ugly, Catholic Italian-Americans either. But if it weren't for more liberal (small "l" on purpose) interpretations of the 14 Amendment Scalia might not be on the Supreme Court.

(this is in no way intended to demean sensible Catholics or Italians in this country who value our liberties and work hard to make a positive contribution to society. it is also not a cheap shot at Scalia's looks but a matter of ugly is a ugly does and an acknowledgment that physical beauty is subjective)

[JDPriestly]

14. Actually, one of the things that Thomas Jefferson and John Adams

agreed on was their disdain for "papists."

[No Elephants]

75. Which makes them both religious bigots.

[defendandprotect]

89. No ... there is no requirement that anyone respect religious dogma ....

especially in our public arena --

Religion is a personal belief system --

no requirement that anyone show it "respect" -- or "bow to it" --

nor its religious hierarchy!

[No Elephants]

99. the post said "disdain for papists." Papists are people, not dogmas.

If you single out one entire group of people for "disdain," based solely on their holding religious beliefs that are slightly different from your own, you are indeed a religous bigot, even if your name is Jefferson or Adams.

(Not clear whac Jefferson and Adams expressing a personal opinion about Catholics has to do with the public arena.)

[defendandprotect]

109. Nothing wrong with the founders having PERSONAL "disdain" for Papists --

as long as they have done no physical harm to them and held only their own personal beliefs.

Certainly, they didn't organize groups to "go get the Papists"--!!

Nor organize speeches against them to demonize them.

Papists do represent a following of religious dogma --


I disdain this Pope for his immorality ... for his document placing a higher value on

protecting the church than protecting sexually abused children . . .

does that make me a religious "bigot"???


If you single out one entire group of people for "disdain," based solely on their holding religious beliefs that are slightly different from your own, you are indeed a religous bigot, even if your name is Jefferson or Adams.

Disagree -- and these are people who well understand the threat of the Vatican Throne to

democracy. A belief in Papal "infallibility" goes beyond dogma.


(Not clear what Jefferson and Adams expressing a personal opinion about Catholics has to do with the public arena.)

They were not on the floor of the Senate at the time -- speaking as government officials.

They did not include that thought in founding documents. These were PERSONAL opinions.

That's the public arena.

[KingFlorez]

9. Activist judge

[whoneedstickets]

10. It also makes no mention of corporations, yet you've extended them free speech rights...

..hypocrite.

[Xipe Totec]

12. Bingo!

:thumbsup:

[defendandprotect]

90. Exactly .... Scalia is one of the most anti-democratic Judges on the Court ....

[dkf]

13. So what is the difference between current court rulings and the ERA?

[No Elephants]

76. .....

http://www.law.cornell.edu/supct/cases/topics/tog_sex_discrimination.html

[defendandprotect]

91. Well, a poster is giving us links I haven't had time to look at yet ... but ....

as I understand the amendment process .... ERA has three votes to go?

You don't have to go backwards in getting all new signatures, as I recall it!

but, don't take my info as gospel -- been a while since I've looked at this issue.

But RCC and Mormon Church used tax-exempt dollars to fund a campaign against the ERA

and I think it missed by only three votes.

I'll look up later if I get a chance and remember!

[boppers]

15. He is technically correct. And an asshole.

As it was written, it discriminated against women, slaves, immigrants, the poor, etc.

That doesn't make it right.

[COLGATE4]

31. Perfect analysis. Thank you.

[24601]

40. But if he's correct about the Constitution - but goes on to say it

shouldn't exist, but the Constitution isn't the reason/methodology to attack it, how is that the asshole position?

At the end of the day, if we empower judges to rule based on what 5 or more justices say "should be" rather than what the Constitution requires, haven't you just made Bush v. Gore completely legitimate?

I happen to agree that investing 9 elite-educated lawyers with the charter to map out social policy is inherently a bad idea and they should stick to the law.

[chieffeathers]

67. He isn't correct

All persons born or naturalized in the United States...
All citizens of the united States...are given equal protection under the law.

In 1868 women were considered persons and citizens and they were counted on the US Census.

[boppers]

70. Was the Constitution written in 1868?

For that matter, who/what is defining "persons" and "citizens"?

This is why it's so messy.

[No Elephants]

74. Nope. Nothing messy. The Constitution itself defines "citizen" (and specifies Congess

will define whac a "naturalized citizen" is.

As to words not defined in a document, you interpret using the "plain meaning" of a word, as the authors would understand it. "Person" had a very plain meaning in 1789 and 1863. Only modern folk got confused about the meaning of "person."

And 1868 is about the time frame for ratification of the 14th amendment, to which chieffeathers was referring.


Besides, make up your mind: If "it" is so messy, how can you unequivocally declare Scalia "technically correct?"

Your goal posts are quite mobile.

[boppers]

107. "as the authors would understand it"

So, as long as you can read the minds of dead people, it's pretty easy.... So, are you claiming women had full rights as "persons", and "citizens", in 1789 and 1863?

Hint:
19th amendment.... ratified in 1920.

[chieffeathers]

103. persons and Citizens

People of the colonies were the 'persons' and the 'citizens.'

Excerpts from the constitution: "The Rights of the people" 'Mankind' It implys that the king has invaded the rights of the 'people' and has prevented population of the states by obstructing the laws of naturalization of Foreigners.'

[No Elephants]

78. It's the asshole position bc (a) he is NOTnecssarily correct about the Constitution and (b)

because he is mighty selective and creative about his originalist bloviating.

See Replies 67 and 72 on the first point and, on the second poino, cases like Bush v. Gore and Citizens United, among others.

[No Elephants]

72. That was before the 14th Amendment and then women's suffrage. One

could argue, quite reasonably, that amending for women's suffrage after the 14 th amendment was intended to result in equal rights for women. (If you could ask Susan B. Anthony and her ilk if second class citizenship were contemplated as they marched, got arrested and jailed and went on hunger strikes, do you imagine they would agree with you and Scalia?) See also, Reply 67.


So, when you say he is techically "correct," what you really mean is that you happen to buy into his particular interpretatation of a document that is wide open for interpretation.

Very important to understand the difference between fact and your own opinion.

[defendandprotect]

92. Scalia also loves to recite that actually we don't have a right to directly elect ....

the president -- ONLY ELECTORS who elect the president --

That's another issue which should be changed -- direct/popular vote for president!

[Yupster]

113. South Carolina was the last state to finally allow

a vote of the people for President. That was in 1868. Before that, they just used electors, chosen by the legislature which is completely within their constitutional rights.

That first election, coming right after the Civil War raised some eyebrows in South Carolina as Ulysses Grant carried the state.

[Yupster]

112. Yes - siunce the original Constitution

allowed for men to vote and not women, then obviously it allowed for discriminating against women.

When the 19 th (?) amendment was passed to give women the right to vote it certainly did not ban all discrimination. If it did there would have been no need for a push for the ERA.

[rpannier]

16. Kind of like being able to discriminate against people based on National Heritage

If I wanted to discriminate against...oh, say...Italians it would be Constitutional?
I'm Just Curious Antonin

[Trocadero]

17. if it doesn't ban sexual bias - if the Constitution is

silent on sexual bias - then how can it forbid same sex marriage?

[Unvanguard]

20. It doesn't, on Scalia's view. It just also doesn't ban banning it. n/t

[COLGATE4]

32. It doesn't. But States can (and do)

[No Elephants]

81. No.

Some states do forbid gay marriage. Some state constitutions (whether expressly, or as interpreted by the highest state's highest ourt, do not allow any discrimination based on orientation. I am proud to be a citizen of the first such state (Massachusetts).

The SCOTUS has never decided whether or not state bans on same gender marriage are legal under the equal rights clause of the Constitution of the U.S. So, you're jumping the gun, as is Scalia. (Hugely improper on his part, especially since a case on California's Prop 8 is already making its way through the federal court system)

[defendandprotect]

93. Scalia was voting FOR Sodomy laws to be returned, as I recall -- !!!

[Yupster]

114. That's the President's position

It was one issue McCain and Obama agreed on. Marriage was a state issue.

[No Elephants]

80. I know of no one who claims the Constitution forbids same gender marriage.

The issue is whether or not the Constitution allows government to forbid same gender marriage.

[JDPriestly]

18. The authors of the 14th Amendment were not thinking about gender

discrimination. That is true.

Nevertheless, here is what they said:

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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's not the whole amendment.

True, at the time the 14th Amendment was adopted, women were not treated as "persons" with rights, but today "any person," includes women in today's world.

http://www.constitution.org/afterte_.htm

[melm00se]

24. the articles

listed on the reference page (http://www.constitution.org/14ll/14ll.htm) list some interesting articles on the validity of the 14th amendment.

I am not endorsing those opinions just saying that they are interesting.

[gmpierce]

47. It is what they said - but even then we had a Supreme Court

I get tired of mentioning it, but those who quote the rights and privileges clause of the 14th Amendment are living a delusion.

An earlier Supreme Court (around 1872) decided that they weren't too sure what your rights and privileges were - so they thought about it and LISTED them. You have an inalienable right of access to land offices and sub-treasuries. You have the right to use the navigable waters of the US (except when you don't). You have the right to use seaports of the US (unless someone passes no-swim legislation). You have a couple of other more or less meaningless rights which are inalienable except when the government decides to alienate them.

It took about 40 years for the Warren Court would extend the Bill of Rights to the states; and they did it by warping the Due Process clause of the 14th Amendment.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" Dream On!

[JDPriestly]

58. Privileges and immunities are not the issue

"nor deny to any person within its jurisdiction the equal protection of the laws" is the clause on which gender equality is based.

Of course, many states have stricter equal rights laws including provisions in their state constitutions than does the Federal Constitution.

I have seen Scalia speak. He likes to shock with his arguments. He is an attention-getter, likes to think he is smarter than other people. He is conceited, arrogant and obnoxious on top of being a glib thinker. Depth is not his specialty. Facile reasoning is more what he is about.

His idea that the Constitution is a dead document is absurd.

The world has changed. Technology and new social realities demand interpretations of the Constitution that fit our time.

[No Elephants]

95. "I get tired of mentioning it" Act'ually, you seem overeager to mention it.

The Supreme Court never said that was an exhaustive list of privileges and immunities. It was merely giving some examples. Even if it had said such a silly thing, that pronouncement would have been dictum, not binding precedent. Besides, it is not as though an 1872 (actually, 1828) case can't be overruled. Finally, as Priestly said, the privileges and immunities clause has nothing to do with this thread.

Also, you've misunderstood the clause. It's saying simply that a state shall not abridge the privileges or immunities {given by federal law} to citizens of the United States, an interpretation that is clearer if you read the clause in context:

"Amendment 14 - Citizenship Rights. Ratified 7/9/1868.
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

<snip>"


BTW, it's not "alienate" your rights; it's "alien" your rights (or sell, give away, etc. your rights) and that concept is from the D of I (which served its purpose on July 4, 1776 and is not "the law of the land"). The concept of inalienable rights does not appear in, or have anything to do with, the Constitution.

Your comment about the Bill of Rights and the states is also erroneous. However, that issue has even less to do with this thread than does the privileges and immunities clause of the 14th amendment. So, I will not get more specific.

[No Elephants]

105. One of many problems with "original intent:

We know the most about what Madison intended bc the clever, self-serving Madison made sure his personal spin went down in history. We know less about what Jefferson intended--we have to glean a lot that from his prior and later writings.

But, while the Constitution got {i]written largely through the efforts and ideas of those two men, it did not become law because of only two men. There were votes by the Continental Congress and then by whichever citizens voted on adoption of the Cons. Can anyone pretend to know what each lawmaker and citizen whose vote was necessary in that sausage-making process of 1789 and 1860-something understood and intended?

Beyond that, long before we had a Constitution, we had legal rules for interpretation of documents, well-known to many in the Continental Congress and in the U.S. Congress that adopted the 14th amendment. Those rules of interpretation tell us not to look outside of the document unless we simply cannot tell what the document means. Also, we use the "plain meaning" of words, unless the document clearly indicates otherwise.

I know the "plain meaning" of the word "person." Its meaning is broader than "former slaves and their descendants," broader than "people of color, whether or not former slaves and their descendants," and broader even than "members of minority groups." (However, it is not so broad as to include non-humans.)

Because I know the "plain meaning" of the word "person," I am not, under the legal rules for interpretation of documents, supposed to look outside the document to things like intent (even assuming I could figure out the intent of each and every lawmaker and other voter) or surrounding circumstances (e.g., Civil War) or other documents (e.g., Emancipation Proclamation, 1860's newspapers, etc.)

IOW, Scalia is full of it.

[The Wizard]

21. If the Democrats in congress

had the will and morals they would have impeached him for ruling in Bush v. Gore. Antonin (Nino The Fixer)had a conflict of interest. His son worked for the firm representing Bush. He also ruled in the case of Cheney and his secret energy meetings after it was established he and Cheney were personal friends.
He always falls back on the "If it isn't in the constitution" argument when he knows he hasn't got a real argument.
There are few provisions against criminal acts in the Constitution, but that doesn't make them legal.
He's a liar of the highest order and a Supreme Court justice to boot.
He's the guy who issued the Stay that stopped the Florida recount in 2000 that would have made Al Gore president. He gives Italian-Americans a bad name and makes the Cosa Nostra look like a neighborhood watch organization. He will forever be known as the guy who made Bush president.
He's more a black robed thug than a legal scholar. Every time he opens his mouth while on the Bench or writes a legal opinion he's committing legal malpractice.

[DCKit]

33. In short, he's a scumbag. n/t

[Monk06]

22. Earth to Scalia. Equal protection under the law means equal protection FOR EVERYONE.

What a prick. Was a time when someone with an Italian
name or a Catholic could never dream of being on the
supreme court.

Scalia is a classic example of "I got mine." conservatism.

To think JFK had to publicly promise that he would not be
influenced by the Vatican if elected.

[krkaufman]

23. After Scalia's role in 'Bush v Gore' ...

... I think he's lost any credibility on presenting himself as an expert on the 14th Amendment, and certainly when it comes to interpreting it "as originally intended."

[robertpaulsen]

73. My initial reaction exactly! n/t

[BlueJac]

25. Dems are cowards..

they let those thugs on the court, now the entire nation suffers from their ignorance!


It is legal to discriminate against idiot Supreme Court judges, the constitution does not mention that at all. :shrug:

[davidhilton]

26. He gives conservatism a bad name, he's so far right its scary n/t.

[xchrom]

27. because we knew tony -- that people like you existed is why we wanted the E.R.A. -- nt

[quaker bill]

28. Technically probably correct

While "equal protection" theoretically existed under the 14th ammendment, it took the 19th ammendment, roughly 50 years later, to get women the right to vote. If the 14th ammendment cured gender discrimination, then the 19th ammendment would not have been needed. In that the 14th ammendment allowed continued gender discrimination at the polls, it probably allowed it everywhere else.

I would still argue that a reasonable interpretation of the language of equal protection should extend to gender discrimination in current context, but history suggests otherwise. Folks tried hard to get the Equal Rights Ammendment passed, and I would assume they did this because it would have provided protections that the authors felt were not already in the Constitution. Perhaps this would be a way to make things clear to Mr. Scalia.

[RaleighNCDUer]

39. As I remember, one of the arguments made against the ERA was

that the constitution acknowledged full equal rights for women in the 14th Amendment, making the ERA redundant legislatin.

Yeah. Right.

[No Elephants]

79. Please see Replies 67 and 72. As far as your ERA argument,

something that did not happen until the 1970's has no bearing on what was intended by granting women the vote, or what the drafters of the 14th amendment intended, or what "the plain meaning" of the words of the 14th amendment is.

Besides, the ERA seems to have been a response to some verbiage in the case of Reed v. Reed.

[defendandprotect]

94. Constitution is schizophrenic ... "All are created equal" should have taken care of it ALL ....

[No Elephants]

100. Constitution is fine. Scalia is psycho. ("All are created equal" is from D of I, not the Const.)

[defendandprotect]

108. Declaration of Independence came first ... and then the watering down began ....

In comparison with the Declaration of Independent -- "All are equal" -- the Constitution

is schizophrenic --




7/4/1776

The Declaration justified the independence of the United States by listing colonial grievances against King George III, and by asserting certain natural rights, including a right of revolution. Having served its original purpose in announcing independence, the text of the Declaration was initially ignored after the American Revolution. Its stature grew over the years, particularly the second sentence,

a sweeping statement of individual human rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

This sentence has been called "one of the best-known sentences in the English language"<2> and "the most potent and consequential words in American history".<3>

The famous wording of the Declaration has often been invoked to

protect the rights of individuals and marginalized groups,

and has come to represent for many people

a moral standard for which the United States should strive.

This view greatly influenced Abraham Lincoln, who considered the Declaration to be the foundation of his political philosophy,<4> and who promoted the idea that the Declaration is

a statement of principles through which the United States Constitution should be interpreted.

Constitution doesn't come along until 1787 -- and a "Bill of Rights" is deemed necessary

immediately.




This document also influenced the French Revolution -- 1789/99 -- "All are equal"

Russian Revolution -- 1917

Constitution didn't go into effect until 1787

Bill of rights introduced 1789 and came into effect on December 15, 1791


Scalia is a religious fanatic - and fascist ... don't know about "psycho" --




:)

[47of74]

29. Ol' Anton loves to wipe his ASS with the Constitution

[madrchsod]

30. is it any wonder why his daughter is an alcoholic.....

if he was my dad i`d drink to try erase my childhood.

[defendandprotect]

96. Know his sons were working for a number of Bush-affiliated law firms at time of Bush/Gore....

but is the daughter in any way politically connected to Scalia's privileged career?

[lobodons]

34. Just die already!!

Do the country a favor and have a heart attack!!

[rug]

35. He's wrong.

Amendment 14

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Granted, "the equal protection of the laws" defies a plain reading.

[marias23]

36. More of Reagan's Legacy

His opinions are so obviously political - abortion OK, homosexuality no good. (Maybe that overweight will catch up with him. Just saying. :))

[lunatica]

37. What isn't in the Constitution matters more to Scalia than what is

I'm sure the Founding Fathers would be proud of Scalia for 'getting it'. 'It' being what they really meant when they wrote it.

[pam4water]

38. I hope he keep talking until he has to step down!

[Davis_X_Machina]

41. The article's right on the law.

Laws that discriminate on the basis of sexual orientation have so far not been required to pass strict scrutiny, the highest -- and virtually unpassable -- standard of scrutiny applied by the courts to legislation with discriminatory effect.

And state legislatures can pass laws outlawing discrimination by sex.

And Scalia's right on the history. Interpretation of the 14h Amendment that reaches gender-based discrimination is a modern invention.

The issue is whether it's a 'forbidden' modern invention. He says 'yes'; other judges say 'no'.

Scalia's crazy, but he's not stupid. And none of this is news.

So the article as a result, like the speech it covered, is a nothing sandwich.

[COLGATE4]

45. Perfect analysis. Thank you.

[Unvanguard]

48. No, it isn't.

You're correct about the first point: sexual orientation has not been recognized as a suspect or quasi-suspect classification at the federal court level. But we have to add two qualifications to that. First, it has not been ruled (at least by the Supreme Court) to not be a suspect or quasi-suspect classification either. Second, even if it had been, it doesn't help Scalia at all: his position requires rejecting the view that the Supreme Court is the definitive interpreter of the Constitution, because otherwise he'd simply be wrong about sex discrimination, which has been ruled to require at least intermediate scrutiny.

The fact that state legislatures can pass laws outlawing discrimination by sex is uninteresting. The important question is whether the courts can impose a norm of non-discrimination on state legislatures in contexts where they don't want to abide by it. When it comes to sex discrimination, we have come far enough that this is mostly a merely theoretical question, but when it comes to sexual orientation, it is of significant importance.

As for the notion that "(i)nterpretation of the 14h Amendment that reaches gender-based discrimination is a modern invention", this is arguably true, but it does not do Scalia's work for him. The text of the Fourteenth Amendment forbids any state from "deny(ing) to any person within its jurisdiction the equal protection of the laws"; women obviously are persons; it follows that the text of the Fourteenth Amendment demands equal protection for women. Nobody in 1868 denied that women were persons, or for that matter thought them undeserving of equal protection of the law. What has changed is not the meaning of the Fourteenth Amendment, but our attitude toward women: people in the late nineteenth century thought that sex discrimination was justified in a general way by the differences in men's and women's rightful roles, and we no longer buy into that notion. There is nothing about the text or the original public meaning of the Fourteenth Amendment that requires us to abide by their prejudices rather than our own understanding.

Edit: The better argument here from a genuine originalist would be that the scope of equal protection was originally intended to be much more limited than we currently interpret it; that's part of why the inclusion of women (they don't say male persons, though they could have) was not too bothersome. The trouble for Scalia is that he is too faint-hearted an originalist to actually go down this route; if he adhered to original public meaning in this sense, Loving v. Virginia would certainly be wrongly decided, and Brown v. Board of Education arguably so.

[No Elephants]

82. As far as a "strict scrutiny" analysis, avoiding conflating gender and sexual orientation is very

important.

Remember, the reason for strict scrutiny is protecting a "discrete and insular minority," which, precisely because it IS a minority, cannot hope to prevail against an oppressive, biased majority by voting. So, courts have to scrutinize discriminatory laws enacted by lawmakers elected by, and theoretically doing the will of, the majority of the population.


In theory, at least, women, being a majority of the population, are as well, if not better, represented by Congress and state legislatures as any group in the nation.

Again, in theory, at least, women have no need for special judicial protection. The same is not so of the GLBT community, estimated at only somewhere between 4 and 10% of the population. If lawmakers eleted by, and doing the will of, a bigoted majority do the GLBT community wrong, the GLBT community cannot outvote the majority to kick the bums out of office.

Discrete and insular minority=no real power at the ballot box = need for special judicial protection = strict scrutiny. That analysis does not apply to womenn, who make up over half the population and therefore, at least theoretically, can vote their own best interests impactfully.

[Unvanguard]

87. I don't believe I've conflated those two.

In any case, I think pretty much the entirety of Western history is sufficient to disabuse anyone of the notion that, because women are the majority, social prejudice and discrimination against them are not real social forces with serious political consequences.

The paradigm case of discrimination in the United States is discrimination against African-Americans, and the strict scrutiny criteria stem essentially from consideration of that case. Discrimination against women--and discrimination against LGBT people, for that matter--functions in importantly different ways. But the words "equal protection" do not suddenly cease to have any relevance to cases merely because different kinds of inequality are not always isomorphic.

[No Elephants]

98. Never said you conflated them. Scalia did, if the OP article is an accurate reflection of what he

said. You mentioned both in the context of a strict srutiny discussion without making the distinction, which is a different issue. However, for reasons stasted in my prior post, I think the distinction needs to be made, especially when discussing strict srutiny.

In my prior post, I was not trying to say strict srutiny would be inappropriate for gender discrimination cases. (My post was full of phrases like "in theory" for a reason.) Rather, I was just not ready to discuss gender disc. I simply wanted to make a point that should help members of the GLBT community.

"The paradigm case of discrimination in the United States is discrimination against African-Americans"

True, but the plain language of the 14th amend. is not thus limited.

[Unvanguard]

106. I think we are on the same page then.

Sorry about the misunderstanding.

[AlbertCat]

44. "a modern invention."

Well, since it's 2010 and not 1780-something, that's a good thing.....you stupid, disingenuous elitist dumbfuck. What a senile piece of crap this joke of a judge is! "Originalists"!:eyes: When they start hand sewing their own breeches and powdering their wigs, I'll start taking them seriously.

[Davis_X_Machina]

46. Incoporation...

...of federal constitutional protections against state action into the 14th is a (relatively) modern invention -- back to Gitlow IIRC in 1925 or '26, and even then, that wasn't an equal-protection case, but a due-process one.

Scalia's mad as a March hare, but he's not a liar.

[No Elephants]

101. He is a liar. He pretends to be a principled originalist. He's neitiher principled nor an

originalist.

And, he is not arguing that application of the equal protection clause to the states is relatively modern. He's arguing that finding a constitional barrier to gender discrimination is relatively modern.

[greymattermom]

49. ERA

That's what the Equal Rights Amendment was supposed to address. It failed, so he's probably right.

[No Elephants]

85. Pease see Reply 79.

[kpete]

50. Constitution does not ban sex bias, Scalia says

Source: San Francisco Chronicle


Constitution does not ban sex bias, Scalia says

Bob Egelko, Chronicle Staff Writer

Saturday, September 18, 2010

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.
......................

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."





Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/09/18/MNJE1FFTSO.DTL

[wtmusic]

51. So gender bias = equal protection. Got it, Tony.

What a f*cking moron.

[The Wielding Truth]

52. What about equal pay for equal work? Is Scalia saying that is unconstitutional?

[No Elephants]

83. No.

[Tumbulu]

53. appointed by Ronny R....I really never believed in hell but folks like RR make

me hope there is such a place.

[pnwmom]

54. Which is why we tried to pass an ERA years ago. It failed.

Much of the opposition stemmed from claims that it might lead to gay marriage . . . .

[No Elephants]

86. Please see Replies 67, 72 79 and 39.

[defendandprotect]

97. Mormon Church + RCC Church financed campaign against ERA with tax-exempt $$....

but I have to look up whether we still only need three votes?

Why isn't that happening -- maybe I misunderstand the process, but don't think

you have to get states that have already signed to sign on again???

[Yeahyeah]

55. Clarence Thomas:"(nod)".

[C_U_L8R]

56. And what's wrong with "modern inventions" anyway

after all.... shouldn't we all be living in the present (and future) tense

the only people who seem to want things just like they were
in the 1700's are republicans and al qaeda.
Like two hateful little peas in a pod.

[sandnsea]

57. Only corporations have equal protection

Right Tony? :sarcasm:

[Gman]

60. Well there's an issue he will be recusing himself from

if he had even an ounce of integrity.

[No Elephants]

102. That's a hell of a big "if."

[Javaman]

71. some people...

need a good kick in the nuts.

Some people...

[high density]

61. "Originalism" is selectively applied only when it's convenient to the nuts

Certainly Scalia's reading of the the 2nd amendment doesn't apply only to "arms" that were around in 1791.

[JerseygirlCT]

63. And the original authors had no problem with slavery, either

This "strict constructionist" crap is simply poorly disguised bigotry.

[No Elephants]

104. What does that have to do with the proper interpretion of the 14th amendment?

It's funny how Scalia's alleged strict constructionism always lines up with right wing nutery, when just about the only RW parts of the const. were repealed or superseded(Prohibition, slavery, unequal voting rights)

[harun]

64. The intention of the authors is irrelevant, what is relevant is our intention,

the ones who are alive.

Scalia doesn't know what the authors would think about events today any more than me. Neither of us should spend any time on it because what matters for us is our intention, not theirs.

[alp227]

68. Sorry, a truly free society requires a living constitution.

Originalism boggles my mind. How can strict constructionists swear to uphold the Constitution yet act like it's still 1787?

[unkachuck]

69. '...that it is constitutionally forbidden is "a modern invention."'

....c'mon fat tony, even a dumb fuck like me won't buy that line of bullshit....

....whether it's presidential declarations of war, judicial review, liberty of contract or appointing presidents, you assholes on the supreme court have always made this shit up as you went along....

....the day is rapidly approaching when you and your friends and your bogus, pompous opinions regarding the 'Constitution' will be seen as nothing more than words on paper....

[The Second Stone]

84. At the time nobody thought it made corporations "persons"

Yet Scalia just ruled against all original intent and present common sense that corporations are persons under the law. And now he tells us that women aren't?

Scalia is just a clever political hack with no principles.

[defendandprotect]

88. Looks like Scalia is trying to bait a hook for those who want to foster gender inequality....???

Also, confusing use of "sex" for gender --

and "sex" for sexual orientation --

Scalia should be held upside down until the DUCKS come flying out of his mouth --

and he's forced to resign!

[David Zephyr]

110. Scalia is proud of being the bigot he is.

Here he is flaunting his upcoming opinion on Prop 8 which he knows will come before the Court. Some judge.