Scalia Says Constitution Doesn't Protect Women From Gender Discrimination

What does he mean by this? And does the statement deserve the outcry it has gotten?

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In an interview with California Lawyer magazine, Supreme Court Justice Antonin Scalia seemed to suggest that the Constitution does not protect women from gender-based discrimination. "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," said the famously conservative justice, adding, "If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. True to form, Scalia's comments produced outrage from the more liberal corners of the blogosphere.

  • 'Shocking' Implications  The Huffington Post's Amanda Terkel says that the Fourteenth Amendment "would seem to include protection against exactly the kind of discrimination to which Scalia referred." Terkel cites, "Marcia Greenberger, founder and co-president of the National Women's Law Center, [who] 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 other words, if Congress passed a law legalizing gender discrimination, it wouldn't be un-Constitutional and the Supreme Court would have no obligation to knock it down.
  • Scalia Gets the Constitution Wrong  "The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons," Legal blogger Jack Balkin argues. "It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate. Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That's not entirely true."
  • Actually, He Was Right On  Legal blogger William Jacobson scoffs of the Huffington Post article, "the headline ['Scalia: Women Don't Have Constitutional Protection Against Discrimination'] is a good example of a half-truth. Scalia's point is the fairly standard view that the 14th Amendment does not apply to discrimination on the basis of sex. Either sex. It does not protect men against discrimination on the basis of sex, either. Scalia's view is neither novel nor new." He chides, "I wish these people would stop dumbing-down the Constitution."
  • Why Do Corporations Get More Protection Than Women?  A liberal legal blogger at Scholars & Rogues fumes, "So how important is the Constitution for protecting people's rights? Apparently not very. ... Unless you happen to be a corporation. Scalia et al continued the practice of defining corporations as persons with equal protection under the 14th Amendment." She is referring to the Citizens United decision, and sums up Scalia's position as, "corporations are, of course, 'legal persons' endowed by their creators with perpetual life and by the courts with inalienable rights by the 14th Amendment (as opposed to us 'natural persons' who have limited life and apparently limited protection against discrimination by the 14th Amendment)."
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