Scalia Says Constitution Doesn't Protect Women

Sometimes I wonder just what planet Supreme Court Justice Antonin Scalia is living on.   Although he has been given the task of protecting the rights of American citizens, as a justice on this nation's highest court, he has recently said that he doesn't believe the U.S. Constitution protects the rights of more than half of the citizens in America -- women.   Here is what he said to University of California - Hastings law professor Calvin Massey in California Lawyer Magazine:

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.

His thesis is that the Fourteenth Amendment was never meant to provide equal rights to all United States citizens, but only to the slaves that had been freed after the Civil War.   This is an odd argument for a right-wing justice that claims to be a "strict-constructionist" on the Constitution.   Normally the strict-constructionists want to make their decisions on what the Constitution specifically says, without reading into it meanings that are not there in writing.

To uphold his belief that the Constitution doesn't guarantee equal rights for women, he has to insert his own beliefs of what was intended by the writers of the amendment, and there is no reason to believe he has judged their intentions correctly.   It is just as likely (perhaps more likely) that the writers of the Fourteenth Amendment meant exactly what they wrote -- nothing more and nothing less.   Here is what the amendment says:

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.

The amendment seems pretty clear to me.   It clearly says that "any person" is guaranteed equal protection under the laws of the United States, and makes no distinction between the citizens in any way.   Section 2 of the amendment does restrict one right to males -- voting.   But this was taken care of by the Nineteenth Amendment which assured women also had that right.   Taken together, the Fourteenth and Nineteenth Amendments to the Constitution clearly guarantee equal rights to women.   I don't see how an argument could be made that the Constitution doesn't guarantee women's rights.

But I don't think Scalia is really saying that women shouldn't have equal rights (although his argument could be used to try and deny women their rights).   What he is really doing is trying to set up a justification for denying equal rights to homosexuals.   He knows that someday soon the Supreme Court will have to decide if homosexuals have the same right as all other Americans -- specifically the right to marry.   And if he can convince people that the Fourteenth Amendment doesn't protect women's rights, then it'll be much easier to sell the idea that it doesn't protect homosexual rights.

It's that pesky phrase "any person" that he is trying to overcome.   That phrase, if it means what it says, would include ALL American citizens, including homosexuals.   But if he can sell the idea that the phrase only applied to men, then he has opened the door to denying rights to homosexuals.   I think this is a disingenuous argument, propelled only by his right-wing beliefs -- not the Constitution.

To interpret the Constitution like Scalia wants it interpreted would be a giant step back for this country.   Many groups, including women, have fought long and hard for their rights.   Even the suggestion that those rights are not guaranteed by the Constitution is not just ridiculous -- it is anathema to the very idea of a free nation.