January 6 2011
Justice Scalia on Gender Discrimination
A recent statement by Supreme Court Justice Antonin Scalia in the California Lawyer made the headlines this week. The statement, which suggests that women have no Constitutional protections against gender-based discrimination, aroused much discussion about the state of women's rights in the U.S.
Something to keep in mind when trying to make sense of Justice Scalia's controversial position is that Justice Scalia is known as a fierce defender of the originalist view of Constiutional interpretation. This means that Justice Scalia interprets the language in the Constitution based on the meaning the Founding Fathers had in mind. Justice Scalia is not making a statement on whether women deserve to be protected from discrimination, rather, he states that the Founding Fathers didn't intend to convey this meaning when they wrote and passed the 14th amendment. Here is an excerpt of what Justice Scalia actually said:
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.
While Justice Scalia is certainly right about the fact that women weren't treated as equals under the law at the drafting of the Constitution, American society and its culture has thankfully changed and women today are both seen and treated as equals under the law, and in society in general. As a fierce defender of women's equality, I understand concern about Justice Scalia's statement, but I can't find flaw with his originalist constitutional analysis. None of the relevant constitutional amendments include gender-discrimination protections.
So what's the legal stance on gender-based discrimination? In 1971 the US Supreme Court unanimously ruled in Reed v. Reed that an Idaho probate law, favoring men over women as administrator's over a deceased person's estate, was in violation of the 14th Amendment Equal Protection Clause. This case has been used as supporting precedent in many cases where the courts struck down laws discriminating against either gender. Additionally, the legislative has done exactly what Justice Scalia said and taken a strong stance against gender discrimination through the Equal Pay Act and Title VII.
Legal protections and cultural norms against gender discrimination are here to stay, even if they weren't included in the original drafting of the Constitution.