ACLU refutes Scalia

[pokerfan]

His comments fly in the face of 40 years of Supreme Court precedent. Since the 1971 case, Reed v. Reed, it has been clearly understood that the 14th Amendment prohibits discrimination based on sex. In decision after decision, many authored by conservative Supreme Court justices, this principle has been reaffirmed.

<...>

Scalia's views are extreme and out of step with the mainstream. He says that nothing in the Constitution prohibits discrimination against women; rather, it is up to legislatures to ban discrimination if they so choose. However, the Constitution provides a safety net to protect against the will of the majority when fundamental rights — such as the right to equal treatment — are at stake.

http://www.aclu.org/blog/womens-rights/constitution-protects-women-despite-justice-scalias-views

[badtoworse]

1. Hopefully, some real lawyers will weigh in (I'm not a lawyer)

I do not believe what Scalia said and what the ACLU said are inconsistent. As I understand it, Scalia basically said the 14th Amendment is silent on the matter of discrimination against women. It neither outlaws it nor does it prohibit legislation from being passed that outlaws it. The ACLU is saying that 40 years of jurisprudence have affirmed a prohibition of discrimination against women. Those concepts are not contradictory.

Any lawyers?

[pokerfan]

2. Also from the link

Indeed, the text of the Constitution simply states that the government shall not deny "any person" the equal protection of the laws. The 14th Amendment does not specifically mention race and the language is intentionally broad. Clearly women fall within the category of "any person."

The ACLU also seems to be under the impression that women are persons, a position with which Scalia disagrees.

[badtoworse]

3. If that is true, then why was the 19th Amendment needed?

And why was the ERA considered necessary?

[no_hypocrisy]

4. ERA was and is considered necessary because women's rights are based on INTERPRETATION

of the Federal Constitution, and that interpretation is always subject to being overturned. One decision and women could be forced into a gender caste system, unprotected by the courts.

An amendment to the Constitution is the only permanent way of enshrining rights, that is until another amendment nullifies that original amendment (think, Prohibition).

[badtoworse]

6. So as it relates to the 14th Amendment, are womens' rights there or not?

[no_hypocrisy]

9. It depends on the majority interpreting the 14th Amendment and the fact pattern, and

the precedent in case law.

Without an amendment, women could lose their rights to participate in society.

[pokerfan]

5. Conservatives said for years that the ERA was unnecessary

because of protections already built into the constitution including the 14th amendment. Now we have Scalia saying it doesn't. :shrug:

As far as suffrage goes, while the Fourteenth extended equal protection and due process to all citizens, it also explicitly said (in Section 2) that only males would allowed to vote. But that doesn't change the meaning of Section 1 which states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

[hfojvt]

8. SCOTUS didn't think so in 1873

Bradwell v. Illinois in an 8-1 vote the Court decided that Illinois could prevent women from gaining admission to the bar based only on their gender.

and the second part does not explicitly say that only men can vote, it only implies that by only providing penalties if older men are prevented from voting. Oddly enough, it does not even say that blacks cannot be prevented from voting. It only says that the state would lose some congressional representation if they were.

[pokerfan]

13. Oh I agree

but I was thinking more like 1973 rather than 1873. The ERA as unnecessary in light of the 14th is a conservative meme going back at least forty years. It even made it into an episode of The West Wing:

Ainsley: Because it's humiliating! A new amendment we vote on declaring that I'm equal under the law to a man? I am mortified to discover there's reason to believe I wasn't before. I am a citizen of this country. I am not a special subset in need of your protection. I do not have to have my rights handed down to me by a bunch of old, white men. The same Article 14 that protects you, protects me and I went to law school just to make sure.

[Orangepeel]

15. Because of assholes like Scalia (nt)

[dpibel]

10. Pick and Choose

If you take Scalia's point as valid, which you seem quite happy to do, the 14th Amendment is also silent on the matter of discrimination against blacks.

If the response to that is that the Amendment was enacted post-Civil War, so everybody knows that it referred only to blacks, well, that doesn't help much, at least in an intellectually honest, consistent world (which is not a world where Scalia lives). Because if you have to fill in the blanks--any blanks--you're rather out there in interpretation land. It doesn't specifically reference blacks and, in the Scalian world, that's the end of it.

In real world statutory interpretation cases, the strongest evidence of the intent of the drafters is, oddly enough, the words they used. Here, as others have pointed out, the words they used were "persons" and "citizens."

In standard jurisprudence, you only get to interpret (by, e.g., looking at drafters' intent) when there is an ambiguity.

As someone else in this thread has pointed out: You and Tony Scalia appear to be among a tiny minority who find those words ambiguous. "Women," you apparently say, "persons or not? It's a valid question."

[COLGATE4]

11. Scalia's point is that, if the Constitution is silent on a given subject

(i.e. discrimination against women) then jurisprudence is NOT the way it should be changed. Rather, Scalia's thesis is that any change in this regard must come from the Legislature, State or Federal. To Scalia's way of thinking, the existing jurisprudence which has held that women cannot be discriminated against is unwarranted 'legislating from the bench'. The real sting in Scalia's 'originalist' meme is that a minority that is not specifically protected by the Constitution must wait for the majority (Legislature) to vindicate their rights. If it does not, then tough shit for that minority. Real Neanderthal thinking.

[pokerfan]

17. Indeed

There was considerable controversy regarding even adding on a bill of rights for this very reason. Hamilton said it best, in Federalist 84:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

So they added the Ninth Amendment.

[hfojvt]

7. this is what the Oxford Companion to SCOTUS says about Reed

"Earlier cases had established that the clause did not forbid group based discrimination as long as the legislature might have some reason for believing the statutory distinction promoted some aspect of the public good. Under this 'rational basis test' the Supreme Court had upheld flat bans on the practice of law by women (Bradwell v. Illinois 1873), prohbitions on women's tending bar (Goesaert v. Cleary 1948) and blanket exclusions of women from jury service (Hoyt v. Florida 1961. In Reed the Court ignored this unbroken line of precedents and explained in an extraorinarily short opinion that this case of gender discrimination presented 'the very kind of arbitrary legislative choice forbidden by the Equal protection clause'.

The law in question had distinguished categories of preference for selecting administrators of the estates of people deceased intestate. Part of the law preferred spouses to offspring, offspring to parents, parents to siblings, and so on; another preferred males to females within each category. The Reeds were the separated parents of a deceased son.... After striking down this law in Reed, the Court often used the Reed precedent in the following decade to strike down many other statutes that discriminated on the basis of gender." Oxford Companion to SCOTUS 2005 p. 830


People might get a kick out of this too. In Bradwell v. Illinois (1873) Justice Joseph P. Bradley wrote "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." op cit p. 97-98

And people think Scalia is bad. :rofl:

I think the Court was wrong to strike down Reed. How else are you gonna decide between a mother and a father? Or a son and a daughter? (okay in that case, it would be logical to go by age (except for the fact that all four of us younger kids would be howling at the idea of my older sister being given precedence, the horror, the horror)) Or a brother and a sister? (in that case age is less logical) Does it depend on which way the arrow is pointing? Are you gonna go by age? Flip a coin? Investigate to decide who was closer to the deceased in affection? And never mind that anybody who doesn't like the way the law is written can get around it by writing down their own preferences.

[madrchsod]

12. roberts mission is to overturn supreme court rulings from the 1800`s.

he already has in one case. tony has a big mouth but the most "dangerous" supreme is roberts.

[badtoworse]

14. Thank you to everyone who posted on this

The concept that women have equal rights seems obvious, so I wanted to put Scalia's comments in context. There is a lot of history on the issue that I did not know (and was very surprised to learn)and I appreciate the posters who took the time to explain things.

[tomp]

16. that we even are discussing this is admitting the u.s. is a...

...backwater of justice. that it isn't taken for granted that all have equal rights, that anyone is oppressing any minority, or even thinking about it, demolishes the myth of america in one fell swoop.

not that there aren't a hundred other things doing that as well. like a black corporatist president, for example.

p.s.: al gore voted for scalia.

[Tsiyu]

18. To quote the Italian men in my family

He's just puffing the ulcers of the two new women on the Court.

The brute knows he's being a doctrinaire ass. He wants to be an ass. it's what old, irrelevant men do for sport.

So every woman in America should stop paying taxes until we sort it out for Tony.

[badtoworse]

20. Ask them if he's a jadrool - nt

[Quantess]

19. I listened to Norman Goldman (an attorney) on the way home

He said that "Scalia is about as an extreme example of an activist judge as you will ever find", or that "this is the most extreme example of judicial activism you will ever find". Norman Goldman said something very close to that on his radio show.

Edit to add: He also said it's most likely republican payback for Roe Vs. Wade, 40-odd years later.

[Enthusiast]

21. Scalia legislates from the bench!

Citizens United. That is all.

[WinkyDink]

22. It didn't give the SCOTUS the right to interfere in Florida's vote recount---and yet Scalia thought

the Constitution did.

He is vile.

[pokerfan]

24. Activist judge!

[progressoid]

23. Unfortunately, fat Tony get's the final say.