January 7 2011
Another View on Justice Scalia's Gender Comments
Nicole Kurokawa Neily
I must respectfully disagree with Romina’s defense of Justice Scalia’s statement that discrimination on the basis of sex is not covered by the 14th Amendment. In other words, he believes that the 14th Amendment was written to address the issue of newly freed slaves, period.
To be fair, the words "women," "gender," and "sex" do not appear in the 14th Amendment; on that, the Justice is correct. However, does that mean that the 14th Amendment doesn’t apply to discrimination on the basis of sex or gender orientation?
Justice Scalia calls himself a "Constitutional originalist." In a speech at Princeton University in 2001, he explained that he, like Madison, interprets the Constitution according to the "common sense" meaning and definition of the document's words at the time they were written.
So let’s look at the meaning and definition of the 14th Amendment at the time it was written.
The 13th Amendment was passed in 1865 following the Civil War, officially abolishing slavery and involuntary servitude (without the conviction of a crime). However, a number of states continued to restrict the rights of newly freed slaves – including travel, self-defense, and court privileges – using laws like the Black Codes. Accordingly, the federal government intervened in 1868 with the 14th Amendment. Among other things, the 14th Amendment contains clauses dealing with citizenship, due process and apportionment of Representatives. Applicable to the Scalia statement, however, is the equal protection clause, which states:
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.
The Amendment was written in order to ensure that state and local laws are applied even-handedly all persons. Seriously, is he really saying that women aren’t "persons" just because we didn’t fight a civil war for their emancipation? The equal protection clause codifies the spirit of the Declaration of Independence, which stated "all men are created equal." (And no, Justice Scalia, that doesn’t mean the Declaration doesn’t apply to women.)
However, as long as we’re talking originalism – I’d be interested to know why Justice Scalia willfully ignored the privileges or immunities clause of the 14th Amendment (most recently in the McDonald v. City of Chicago case), which virtually everyone who has studied the question now admits was designed to protect basic civil rights of all American citizens.