Justice Antonin Scalia has weighed in on the 14th Amendment to the U.S. Constitution, leaving women's rights activists seething.
In an interview with California Lawyer, Scalia said that the Constitution itself does not protect women and gay men and lesbians from discrimination. Such protections are up to the legislative branch, he said.
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.
This is not the first time Scalia has weighed in on the 14th Amendment as it relates to the protection of women's rights. In September, Scalia told an audience at the University of California's Hastings College of the Law that, "If the current society wants to outlaw discrimination by sex...you have legislatures."
In 1996, Scalia was the only justice to dissent in the Supreme Court decision that ended the 157-year tradition of state-supported, all-male education at Virginia Military Institute. In his dissent in the case United States v. Virginia, Scalia wrote:
...the tradition of having government funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law.
4 comments:
The 14th amendment says, "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." Notice the phrases "any person" and "citizens"! This includes women and people of all sexualities. This is not nullified by the fact that the people who ratified this amendment were not considering these groups at the time. However, this amendment does only account for discrimination or infringement of rights by the governments. Therefore, Scalia is correct in stating that legislation, not the Constitution, is for protecting against discrimination in the PRIVATE sector. However, what he does not seem to acknowledge in the interview is the fact that a large amount of legislation (consider the various Civil Rights Acts or the Equal Pay Act or the voluminous amounts of state legislation passed regarding these demographics' rights) to achieve for these groups equal rights has already been passed. Therefore, discrimination by sex is, by and large, already illegal. Discrimination by sexual orientation is behind discrimination by sex in this regard, but it is on its way to becoming illegal overall. Maybe he just doesn't understand this? As far as the 1996 Supreme Court case mentioned goes, I disagree with his ruling and him again. The military schools are government supported and therefore, by the 14th amendment, cannot discriminate against women. The Constitution is the ultimate tradition and keystone of America. Not all male military institutes.
In a perfect world, a utopia, every citizen would have an equal voice in every issue that affects their nation, or themselves... unfortunately, we live in a world far from perfect. While legally speaking discrimination based on gender or sexual orientation is dwindling, if not irradicated in some areas, it's a sad fact that human beings dislike that which is different than themselves, and as such, there will always be bias, discrimination, and prejudices; we are only human. Where I draw the line is trying to impose your own biases and prejudices upon others, such as what "Justice" Scalia wished to do in 1996 in the case United States v. Virginia. Morally speaking, it is unacceptable... we are all sensient human beings, and each and everyone of us deserve equal treatment, regardless of race, gender, or sexual orientation.
The thing people forget is, when they were writing the amendments. They were covering issues that they had currently. The never thought that the things that have been brought up would, because they weren't a problem then. Now people just want to critisize the gov. for any reason they can find without even having done their reaserch. Even if they do their "homework" they still do so with a bais perspective.
I would definitely have to agree with Wesley here. If the 14th amendment only applied to the male portion of our society it would explicitly say it within its context. There have been many discrepancies within the constitution no doubt, but this one is not one of true questioning. No, this is much more so the view of an ignorant and hateful man. The man himself is committing a crime by his own sexual discrimination. Scalia is twisting the constitution to his own benefit. Just as Wesley said the legislation is for protecting the private sector and that is all. Scalia believes he can interpret the constitution better than the majority of our society interprets it.
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