[Theateetetuig]

http://www.huffingtonpost.com/2011/0..._n_803813.html

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 in the legal magazine California Lawyer, Scalia said that while the Constitution 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."

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.....

[thargeagsaf]

Just responding to the topic head. It is obvious that the Constitution does not protect women or for that matter men from discrimination based on gender. This at one time was even known by libs who tried for decades to pass the Equal Rights Amendment (look it up). The Government discriminates against men everyday only men and not women can be denied citizenship and can be denied federal school loans if they fail to register with the Selective Service. The questions is why has our school system so massively failed in teaching this basic idea that a Supreme Court justice has to explain what should be obvious to every fourth-grader.

[GoodLover]

Mark you calendars, folks.....day, date, and time. This might not happen again for a while:

I pretty much agree with Paul on this one.

The Constitution clearly does NOT guarantee equal rights to women. My generation of women should be keenly aware of this, as we witnessed the failure of the states to ratify the ERA. (However, this information shouldn't be known by fourth-graders, as the concept is a bit above that level. Unfortunately, due to the requirements of NCLB, and the overemphasis on test results on math and language arts, civics is being dropped as part of the curriculum by many school districts, and lots of students will never be taught the fundamentals of government.)

Although I'm not convinced about the government's being able to deny citizenship only to men but not to women (any references on that, Paul?), I do agree that it is dicsriminatory to require only men to register for Selective Service, and have held that view for many years, all the way back to my college days. I believe that our daughters are no more precious to us than our sons, and that all should bear the responsibilities of citizenship, so everyone should be required to register for Selective Service.

Of course, I have also always held that women should then refuse to do so until the ERA is passed and ratified. Equal responsibility demands a guarantee of equal rights.

[Podosinovik]

There is Federal legal recourse for any gender discrimination in Title VII, though. Just nothing for sexual orientation yet.

[Diandaplaipsy]

Just responding to the topic head. It is obvious that the Constitution does not protect women or for that matter men from discrimination based on gender. This at one time was even known by libs who tried for decades to pass the Equal Rights Amendment (look it up). The Government discriminates against men everyday only men and not women can be denied citizenship and can be denied federal school loans if they fail to register with the Selective Service. The questions is why has our school system so massively failed in teaching this basic idea that a Supreme Court justice has to explain what should be obvious to every fourth-grader.

Will somebody please tell Incident that there's a View Post button so he can read the article without taking me off ignore?

Actually, the Constitution does guarantee equal rights to women. It doesn't have to explicitly say anything about gender to do that. The actual text of the 14th amendment:

"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." It doesn't give any explicit reasons why the state cannot abridge someone's rights. It just says the state cannot do it--period, for any reason. That implies that a woman's rights under the law cannot be abridged because of sex.