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Thread: Antonin Scalia: Women Don't Have Constitutional Protection Against Discrimination

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    Elite Member MohandasKGanja's Avatar
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    Default Antonin Scalia: Women Don't Have Constitutional Protection Against Discrimination

    Scalia: Women Don't Have Constitutional Protection Against Discrimination

    WASHINGTON -- The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.

    In a newly-published interview with the legal magazine California Lawyer, Scalia said that while the Constitution does does not disallow the passage of legislation outlawing such discrimination, it doesn't itself outlaw that behavior:
    In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. 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. It's not about nine superannuated judges who have been there too long, imposing these demands on society.
    For the record, the 14th Amendment's equal protection clause 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." That would seem to include protection against exactly the kind of discrimination to which Scalia referred.

    Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.
    "In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "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. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

    Greenberger added that under Scalia's doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools -- all things that have happened in the past, before their rights to equal protection were enforced.

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    I keep wondering the same thing over and over....'I wonder how hard it is to learn Swedish?'. I dont even recognise this country anymore.

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    Elite Member McJag's Avatar
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    Holy cow. A Supreme Court Justice and this is 2011. Let us pray.
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    Elite Member darksithbunny's Avatar
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    I wonder what the Supreme Court women Justices had to say about that.

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    I didn't interpret his comments that way at all. It seems like what he is talking about are the checks and balances of the US. Even though we complain about the status of the country, the design of the country gives us a recourse to change as things progress.

    We changed segregation. We're working to change discrimination against homosexuals. We have that recourse.

    I think what he is pointing out is that it is the responsibility of common Americans to understand that this country is not run by the Legislative, Executive and Judicial branches of the government. It is run by the people. Far too often people slack off because we feel the country is run by the officials.

    I think his comments are aimed at encouraging people to recognize and appreciate this distinction.

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    Elite Member witchcurlgirl's Avatar
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    He is correct. If he was wrong the constitution wouldn't have needed some of it's amendments.

    The fact that the Constitution doesn't have certain specific protections is the reason we have had to make a number of laws. If you want an explicit legal protection, a law is the way to do it. That's what a legislature is for.

    The ERA is a good example of what he's talking about. If the specific protection had been in the 14th amendment there would have been no need to try to pass an ERA. And when the ERA wasn't passed, specific laws had to be put in place to ensure women would have some protection against discrimination.
    Last edited by witchcurlgirl; January 4th, 2011 at 09:12 AM.



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    Elite Member Quazar's Avatar
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    I think it's pathetic that we need laws to enforce prohibiting discrimination against human beings. We actually have to spell it out for people that it is wrong.

    On the positive side - at least we can have the ability to create laws that protect people unlike some places where even the government discriminates agains its own citizens. I wouldn't want to be a female in Saudi Arabia.

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    Elite Member MohandasKGanja's Avatar
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    I guess if you read the 14th amendment literally, it only limits the States from creating laws that would deny citizens equal protection. And I also believe that there was either a Supreme Court ruling or amendment that obligates the Federal government to follow amendments that originally applied to the states.

    So, then, the question is does that mean that municipalities, religious groups, non-profit organizations and private commercial entities are free to discriminate among classes of people unless specifically statutorily proscribed from doing so. And, I guess, that this is where legislation has to come in to fill the gap.

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    Elite Member ManxMouse's Avatar
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    Not a surprise, Scalia is an originalist, as opposed to the justices who view the Constitution as a living, breathing document that is to be interpreted as social views evolve. Having said that, Scalia is a smug jackass.
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    Elite Member MohandasKGanja's Avatar
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    Quote Originally Posted by ManxMouse View Post
    Not a surprise, Scalia is an originalist, as opposed to the justices who view the Constitution as a living, breathing document that is to be interpreted as social views evolve. Having said that, Scalia is a smug jackass.
    He's also a Catholic "originalist". If I remember correctly, he's a member of the Tempus Dei church, somewhere in Northern Virginia. It's a church for Catholics who think the church went horribly wrong during Vatican II. I think the mass is spoken in Latin, too, which means nobody except the priest knows what's going on during the liturgy.

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    Quote Originally Posted by MohandasKGanja View Post
    He's also a Catholic "originalist". If I remember correctly, he's a member of the Tempus Dei church, somewhere in Northern Virginia. It's a church for Catholics who think the church went horribly wrong during Vatican II. I think the mass is spoken in Latin, too, which means nobody except the priest knows what's going on during the liturgy.
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    Elite Member witchcurlgirl's Avatar
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    Quote Originally Posted by MohandasKGanja View Post
    He's also a Catholic "originalist". If I remember correctly, he's a member of the Tempus Dei church, somewhere in Northern Virginia. It's a church for Catholics who think the church went horribly wrong during Vatican II. I think the mass is spoken in Latin, too, which means nobody except the priest knows what's going on during the liturgy.
    Many synagogues have services in Hebrew, does that mean no one knows what's going on but the Rabbi? Mosque services aren't always in the vernacular, do they understand?



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    Elite Member witchcurlgirl's Avatar
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    The average american jew knows as much hebrew as does the average american catholic. By which I mean for religious services only, and mostly memorized at that. The same applies to the average american muslim.

    Scalia is a guinea, he probably has a decent grasp of latin as it's the root of most romance languages. Most romance language speakers can grasp it with no trouble.

    Anyway, the catholic church has many parishes that offer services in Latin amd the vernacular, one need not be a Hutton Gibson nut to attend one.



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    Elite Member MohandasKGanja's Avatar
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    Quote Originally Posted by witchcurlgirl View Post
    Many synagogues have services in Hebrew, does that mean no one knows what's going on but the Rabbi? Mosque services aren't always in the vernacular, do they understand?
    That's a good point. My dad said that his brother (a Latin-speaking altar boy) knew what was being said in pre-Vatican II masses, but that nobody else in the family did.

    Similarly, my friend learned to "pronounce" Hebrew so that he could read from the Torah during his bar-mitzvah, and it sounded good to my gentile ears. But he told me he had no idea what he was saying.

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