Why exactly did my brains fly out and splatter my office with a fine mist of feminist rage? Because of this headline: Scalia: Women Don’t Have Constitutional Protection Against Discrimination.
Surely, that can’t be right. Surely a Justice on the United States Supreme Court is not saying that women are not protected from discrimination. Because by saying that, he is saying there is legal standing to discriminate based on gender and that is 31 flavors of I DON’T FUCKING THINK SO!!!!!
I gathered my wits and delved into the article because this was the Huffington Post, after all, and perhaps the headline was just a boondoggle designed to make liberal feminist types like me lose our shit for very little reason. Alas, not so. The article quoted a recent interview Scalia did with the magazine California Lawyer where the good Justice said this:
“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.”
There is so much here that is turning my guts into a boiling cauldron of anger that I almost don’t know where to begin. Scalia seems to be suggesting that the question of the legitimacy of gender discrimination is not actually settled law and it’s up for debate. He seems to be saying that we need to take legislative steps to outlaw gender discrimination if we want to abolish it, and it’s not up to the courts to define who constitutes a protected class under the equal protection clause. He fails entirely to look at the flip side of that argument which says that we could also legalize discrimination by the same means and the Court has no standing on which to overturn it even though EVERYBODY IN THEIR RIGHT MIND KNOWS THAT DISCRIMINATION IS A BAD THING and courts have been agreeing that for generations.
But even that is not what disturbs me the most about this. To get to the heart of my distress you need to read the 14th Amendment in its entirety.
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.
Read that. Read it again. It doesn’t say women, overtly. Scalia is right about that and only that. What it says instead is person. Person. I’ll say it again: person. For Scalia to suggest that women aren’t covered under equal protections is to suggest that we as women do not fit the definition of “person” as laid out in the Constitution.
I’m no lawyer but even I know that I am a person. You are a person. Justice Scalia is a person, even though I kind of hate to admit I have anything in common with him. We, as people, as citizens of the United States, are entitled to equal protection under that law, without respect to ANY characteristic we have beyond out personhood. THAT is what the 14th Amendment guarantees. Parsing it any other way is cock-smoking asshattedness at it’s very best. Scalia offering up the opportunity to revisit the definitions of personhood by legislative remedy and to say that the courts have no grounds to overturn a restrictive redefinition, even theoretically, suggests that this man, this top legal authority in the United States, is willing to consider that I, by virtue of gender, might be less than a person.
Oh HELL no. No, we have fought this battle. Women are people. Non-Causcasions are people – full people, not 5/8s of people or whatever shit the slave owners tried to institute to cut their damn tax burden – those with disabilities are people, those who love others of the same gender are people. WE ARE ALL PEOPLE. Justice Scalia should not even be suggesting that there is anyone of our species who is not protected by the 14th Amendment.
I always want to think that the people who hold their prejudices close and misguidedly think that its ok to judge a person on what they are, rather than who they are, are few and far between. And that the bigots who do exist are powerless dumbasses whose main avenue for spreading their crap is calling in to talk radio so that the rest of us, the smart people who know enough to take our lesser impulses and stuff them where the sun don’t shine, can run the world the right way. Then something like this happens and I’m astonished to think that there are people of true and lasting influence who are willing to reconsider that which generations of Americans fought to ensure: that we are all judged by the content of our characters and that the law is well and truly blind. Justice Scalia has this job for life and there are only 8 other human beings between us and him. And while I’d pick Sonia Sotomayor over Antonin Scalia in a cage match, he’s still one too many wrong thinkers on the court for my comfort.
Words have power and his words will fall on the wrong ears, no doubt. What will Justice Scalia’s words inspire? I hope it inspires women and other groups to remain vigilant to threats against our right of personhood. But I’m always afraid it will inspire those who would take our personhood away.