If sex discrimination is not covered by the Constitution, can Congress pass a law legalizing discrimination against women? On what constitutional basis would such a law be appealed?
That it exceeds Congress’ authority under the Constitution. The federal government is one of limited, enumerated powers. What grant of power in the Constitution allows Congress to pass such a law?
Aha, it applies only if you consider women “persons.” If they’re not, we can abridge all we want!
Because Section 2 of the 14th refers explicitly to males, while Section 1 does not. Scalia is talking about discrimination based on gender, not about voting rights based on gender. This isn’t rocket science.
Multiple possible answers, the first being it was necessary because the 14th had been misinterpreted. I don’t agree with that (though I do think the 14th was misinterpreted in the Slaughterhouse Cases, but that’s another rant), as I think the intention was to continue permit male only franchise. But then, if we are obsessed with language, we need to look at the different words chosen - the fact that the langauge in the second part specifically includes “male” is indicative that where “person” is used in the first part, it includes both male and female.
I don’t see how the language can be argued any other way - and as good textualists like Scalia know, if the language is clear and plain on its face, then original intent doesn’t freaking matter. One could argue that “person” as used in the late 19th century, only included males, but that is massively undercut but the second clause.
These questions generally end up in the courts, which sometimes change their answers (e.g. Plessy v. Ferguson vis-a-vis Brown v. Board of Education). The Slaughterhouse cases referenced above, breathtaking stroke of judicial activism that they are (rendering a clause of the Constitution void of effect, thereby permitting things that the framers of the clause had clearly expressed the intention to prohibit), indicate that the answer need not rest upon anything more solid than “Because I said so”.
I don’t know why no-one has answered your question, Fear. I think it is simple enough that I can do so.
It is illegal in the US to discriminate based on sex when hiring, due to a statute, passed by Congress and signed by the President, not based on any Constitutional reading. There is no doubt that Congress could repeal this law, which would allow private employers to merrily discriminate on the basis of sex all they wanted.
A woman (or man, of course) could then sue and attempt to establish that anti-discrimination is guaranteed by the Constitution, but I believe she (he) would have a difficult time making the case. Given the current Court, probably an impossible time.
If Congress passed, and the President signed, a law **forbidding **the hiring of women, it would be promptly overturned. The Constitution does not really have language that prevents Congress from passing a law that is utterly stupid, but the Supreme Court does have that authority and would probably wield it.
Huh? Given that the 14th was intended to permit male-only franchise (as indicated by the plain text), then it was not a matter of “misinterpretation” to conclude that another amendment was necessary to extend the guarantee of the franchise to women. Other rights and privileges protected by the Fourteenth Amendment are a separate question, not being tied to any “male” language.
In the same manner as discrimination against gays has been.
In general, current 14th amendment law applies a hierarchy of criteria that examines different forms of discrimination more stringently than others. For example, laws that call for discrimination based on race are generally subject to the most stringent analysis, called “strict scrutiny,” and only the most compelling of reasons will permit such a law to stand. Under current law, discrimination based on sex is generally subject to a lower form of review, called “intermediate scrutiny,” and such laws are somewhat more likely to survive. (Note that this means that even mainstream jurisprudence recognizes some distinction between race-based and sex-based discrimination; this much is not unique to Scalia).
Finally, most other forms of discrimination receive “rational basis” review, and will be upheld as long as the government can articulate some rational reason for them. Thus, it is not a violation of equal protection for the state to imprison Tom Delay but not Bricker, because it has a rational reason for doing so – Delay has been convicted of a crime and Bricker has not (as of this writing ;)).
Traditionally, rational basis review was viewed as almost a free pass, and laws subject to such a test would nearly always be upheld. More recently, however, the Supreme Court ruled (in Romer v. Evans (1996)) that a state law barring localities from enacting ordinances recognizing gays as a protected class failed even the rational basis review. It did not apply a higher level of scrutiny, as it would have to discrimination based on sex or race, but it instead found that the state could not even articulate a rational reason for this law.
Under Scalia’s view, discrimination based on sex would presumably receive rational-basis review; he’s saying that there’s no basis to believe that the 14th amendment calls for any heightened review. But that would not necessarily prevent courts from striking down such discrimination in cases where they determined that the government could offer no rational justification.
It’s true that Scalia himself would be very unlikely to find violations under a rational-basis test. Even where they agree on what level of scrutiny to apply in a particular case, individual judges can and do disagree about the result of that review. In Romer, for instance, I think it’s fair to say that all of the justices agreed that rational-basis review was appropriate, but the dissenters (including Scalia) believed that the law did pass the test.
Suppose Congress passed a law saying that:
(1) only men could be employed as pilots of scheduled passenger aircraft;
(2) only women could be employed as flight attendants on scheduled passenger aircraft.
Would that pass constitutional muster? I suspect that Scalia, with his reasoning, would allow it. The argument against it would have to be that it denied would-be female pilots and male flight attendants the equal protection of the laws.
I think we are saying the same thing. Sorry if I wasn’t clear on that - I don’t agree with an argument that the 19th was needed to restore the original intention of the 14th, but I have heard it made.
At the time it was written the whole point of the 14th was to protect former slaves. Yet it has been used more often to expand the legal rights of corporations. Does Justice Scalia also believe that is an improper use of the amendment?
Interesting; I’ve so often heard from conservative legalfolk that women’s equality is fully enshrined within the law, hence the lack of any need for the ERA.
So which of the following two statements is closest to being correct, in y’all’s opinion and in your opinion of Scalia’s opinion?
a) The proposed Equal Rights Amendment is not necessary for the establishment of amendment-level protections for women’s legal equality; it is redundant and already taken care of by other amendments (please specify where and how)
b) The proposed Equal Rights Amendment would be necessary for the establishment of amendment-level protections for women’s legal equality although other (non-amendment) federal laws exist which mandate women’s legal equality (please describe them, thanks); new laws could be passed by simple majority in Congress at any time which would allow or mandate the US and the states to treat men and women unequally and there is no Constitutional amendment prohibiting such a law from taking effect.
c) The proposed Equal Rights Amendment would be necessary for the establishment of amemd-level protections for women’s legal equality; no federal law currently exists which in any way prohibits unequal treatment by law on the basis of sex in any federal or state law or statute; either such unequally-applying laws already exist now or they could, were Congress or any of the States to pass them by simple majority.
What would be the rational basis argument?
This is my understanding, though I’m no legal expert. In fact, laws requiring men (but not women) to register for selective service are indeed such laws, and would, it has been argued, be unconstitutional if an Equal Rights Amendment were to be ratified.
Perhaps something about the traditional roles of men and women in society, which I suspect is something like the rational basis argument for keeping women soldiers away from combat positions.
Why would you need a rational basis? You only need a rational basis if equal protection applies - if women are outside of the strictures of that, then there is surely no level of scrutiny needed, provided that it falls within the permitted powers of Congress to legislate in that area.
I missed the reasoning that exempts women from EP?
Something similar was recently discussed in a thread in GQ ( Why was the Equal Rights Amendment not ratified? ). If anything, the statement by Justice Scalia shows why something like the ERA needs to be put in the constitution.
I see where you are coming from, I think - the argument would be that the Fourteenth extended equal protection from white people to the newly freed slaves? And therefore women already had equal protection under the law, and therefore any law discriminating against women would already have required some sort of justification?
I don’t think that holds up - women didn’t have equal protection under the law before the 14th Amendment, not just in practice but also conceptually. Which again explains the language of the 14th - by granting all citizens equal protection under the law, it calls into question the concept of an all male franchise in ways that weren’t in question before, and so the drafters expressly reinforce the restriction of the franchise in the language of the amendment.