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Justice Scalia: No Protection for Women in US Constitution

January 4, 2011 by Brett Wilkins in Courts, Women's World with 0 Comments
(Photo: Stephen Masker/Wikipedia)

(Photo: Stephen Masker/Wikipedia)

US Supreme Court Justice Antonin Scalia, probably the second-most conservative member of the high court after Clarence Thomas, said the US Constitution does not guarantee protection against discrimination on the basis of gender or sexual orientation.

“Certainly the Constitution does not require discrimination on the basis of sex,” Scalia said in an interview with California Lawyer magazine. “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.”

Justice Scalia says it is the job of elected lawmakers, not the Supreme Court, to pass laws protecting women against discrimination.

“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,” he said.

Scalia’s views have alarmed some observers. Marcia D. Greenberger, founder of the National Women’s Law Center in Washington, DC fears that if the majority of the Court shared Scalia’s outlook then gender equality could suffer severe setbacks.

“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she told the Huffington Post. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011.”

The Court has set precedent by ruling that women are indeed protected under the 14th Amendment. In 1971 it decided in Reed v. Reed that “to give a mandatory preference to members of either sex over members of the other … is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.”

Still, Scalia, who wants to go so far as to overturn Roe v. Wade, doesn’t buy that argument. He says that when the 14th Amendment was written in the 1860s, protection for blacks, not women, was the intent.

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