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Scalia Says Constitution Does Not Prevent Gender Discrimination

By Ian Millhiser  

"Scalia Says Constitution Does Not Prevent Gender Discrimination"

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scalia-gestureSpeaking to a law school audience in San Francisco last Friday, Justice Antonin Scalia expressed some strange views about the Constitution and gender equality:

Scalia also said he doesn’t believe the Constitution bans sex discrimination.

The 14th Amendment, enacted after the Civil War in 1868, guarantees due process and equal protection and in recent years has been interpreted by courts to prohibit sex discrimination as well as racial discrimination.

But Scalia said he believes the amendment doesn’t apply to discrimination against women because that use of the measure was not intended in 1868.

He said he personally opposes bias against women, but said it can be banned by laws rather than reliance on the Constitution.

“If the current society wants to outlaw sex discrimination, hey, we have legislatures,” Scalia said.

Scalia’s odd stance on gender equality is nothing new. In a 1996 Supreme Court decision limiting gender discrimination in Virginia’s higher education system, he cast the sole dissenting vote in favor of allowing the state to continue to deny educational opportunities to women (Justice Thomas was recused from the case).

What is new, however, is that Scalia may have significantly more support on the present Supreme Court than he did in 1996. Justice Thomas, who has even gone so far as to call for a return to the days when federal child labor laws and laws banning whites-only lunch counters were considered unconstitutional, would almost certainly be moved by Scalia’s claim that women’s rights under the Constitution must remain exactly the same as they were in 1868. Similarly, as a young lawyer in President Reagan’s Justice Department, Chief Justice Roberts penned an article claiming that only race discrimination — and not discrimination on the basis of other categories such as gender — is limited by the Constitution.

Justice Alito does not appear to have weighed in on the question of how much protection the Constitution gives women against gender discrimination, but as a lower court judge, he penned a dissent which would have “eviscerated” the law banning race and gender discrimination in the workplace. Alito was also the author of the Supreme Court’s unforgivable decision in Ledbetter v. Goodyear Tire, which cut off many women’s ability to seek equal pay for equal work until President Obama signed a law overturning the decision.

In other words, the Supreme Court could be just one vote away from turning Scalia’s vision into a reality.

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