Scalia says Constitution allows discrimination against women, gays

By Michael J.W. Stickings

As HuffPo's Amanda Terkel is reporting, right-wing Supreme Court Justice Antonin Scalia gave an interview recently during which he said that the Constitution does not prohibit discrimination against women and gays:

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.

Scalia went on to say that regardless of what is, or is not, in the Constitution, laws may be passed prohibiting such discrimination:

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.

To a certain extent, Scalia is right. The Constitution obviously does not, and cannot possibly, address every single matter of public policy, and it is the responsibility of democratically-elected legislators and executives (the president, governors) to enact laws within the general framework established by the Constitution (along with individual state constitutions). 

But on this matter, Scalia is simply wrong. As Terkel writes:

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." That would seem to include protection against exactly the kind of discrimination to which Scalia referred.

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."

In other words, while Scalia asserts that the Constitution doesn't currently require discrimination (it would if many Republicans had their way and an amendment prohibiting same-sex marriage were adopted) and that legislatures can prohibit discrimination, what he is saying, essentially, is that discrimination is up to "society," with no legal recourse whatsoever for those facing discrimination.

So if a legislature passed a law, say, barring homosexuals from government employment, that would be that. Or if a legislature passed a law, say, keeping women with children out of the workforce, that would also be that.

But, again, Scalia is simply wrong -- either that, or he knows better and is being disingenous. Indeed, based on his view here, why even have a Constitution at all?

As Tristero writes over at Digby's place:

I realize that this flies in the face of widely held conventional wisdom but I can't escape the conclusion that when it comes to understanding the founding documents of the United States, Scalia is a mediocre intellect. If that.

On the other hand, if we were to agree that this man really is as brilliant as everyone says, then that can only mean that Scalia is deliberately misreading these documents to make them say the very opposite of what Jefferson, et al, clearly wrote. Furthermore, it can only mean that a justice of the Supreme Court is, for reasons we can only guess at, consciously adopting a distinctly un-American, if not blatantly anti-American, bias both to his judicial philosophy and to his rulings. In other words, to believe that Scalia really is smart enough to understand the founding documents, and therefore deliberately misread them, is to believe that he is an activist, a reactionary, and a royalist openly seeking the destruction of this country.

I tend to believe that both are true. Scalia holds a limited, right-wing interpretation of the 14th Amendment, and of the Constitution generally, basically because he holds a right-wing, anti-American judicial philosophy and political bias. In a way, he is both brilliant (in a nefarious way) and mediocre at the same time.

Is this possible? Well, perhaps he is "brilliant" enough to distort the Constitution to suit his own partisan and ideological ends, while the intellectual limitations of right-wing ideology render his distortions "mediocre," at least in terms of the accuracy of Constitutional interpretation.

In this sense, he's a lot like Karl Rove and Bill Kristol, two very smart men who are wildly wrong about just about everything. Now, in all three cases, and even more so with respect to Rove and Kristol, I suspect that what drives them is partisan cynicism. Perhaps they all know better, more or less, or at least knew better, at some time, but I suspect that their right-wing delusions have blinded them to the very possibility of truth. The question is whether they actually know any better. Or at this point whether they are even capable of knowing any better.

Regardless, such delusion, however deep, should not be allowed to exonerate them, to rid them of all responsibility. Ultimately, they are fully responsible for their beliefs -- there's no false consciousness here.

And when it comes down to it, I'm on the side of brilliance over mediocrity. Which is to say, I tend to think they know what they're doing. In Scalia case, I tend to think he knows his interpretation (or misreading) of, say, the 14th Amendment is a limited, right-wing one, even if he wouldn't put it that way.

But, again, it's not clear whether he thinks he holds the right interpretation, one of multiple equally legitimate interpretations, or a distorted partisan interpretation. And so it's not clear whether he's being deliberately misleading or whether he's just plain wrong.

Who's to say what goes on inside such a brilliant mind? Then again, maybe that mind is so sick, so polluted, so twisted, so distorted, that he himself doesn't know what's going on, and what he's really all about.

It's the "Buts" that get you.

By Mustang Bobby.

I've heard it all my life: "I'm all for equal rights (or freedom of speech, or freedom of religion), but...." That's followed by a statement that proves the speaker really is in favor of no such thing. For example, "I'm all for equal rights, but the coloreds really should stick to their own schools and neighborhoods." Or, "I'm all for freedom of speech, but burning the flag is anti-American and should be banned." Or, "I'm all for freedom of religion, but Islam isn't one."

That kind of mindset has been vocalized a lot in the last few years, and it's been brought to a head by the recent discussion -- if you can call it that -- about the plans of a group of citizens in New York to build an Islamic community center in an abandoned coat outlet within a couple of blocks of the site of the World Trade Center. It has stirred up a whole lot of passion from a wide range of people: those who are using it to exploit the fear and paranoia of Americans who are uninformed about the facts of the case ("Al-qaeda is building a mosque on Ground Zero!") or people who are exploiting it for political gain by playing off those who are misinformed, to those who are defending the basic premise that America's foundation rests on the fundamental rights of all the people to exercise all of their rights as enumerated by the Constitution of the United States in compliance with the laws.

There's not a lot of middle ground being sought, but in a case like this, it's hard to see that there is one. After all, rights are binary: you either have them or you don't. There is freedom of religion and the freedom from state interference in the lawful exercise of it, or there is not. You cannot come in and decide one religion is better than the other -- at least not on secular grounds -- nor qualify it based on the sensitivity or lack thereof of the people involved. (Ross Douthat tries to make the case for understanding both sides of the argument in his New York Times column today and basically says that in America today, there's always room for bigots.)

For a very long time a lot of people in this country; the Chinese, Italians, Irish, African-Americans, Japanese, Hispanics, Catholics, Jews, women, gays and lesbians, even the disabled, have had to endure the "But" clause in their basic rights. They have been told by ruling class -- usually by the white straight patriarchs -- such things as "the time isn't right," or "there's a lot of raw feelings" about some recent event, and that granting them the same rights as everyone else would "tear at the fabric of society" or even "destroy America as we know it." And these same people have exploited the unknown and the unfamiliar for their own political or financial gain without really caring whether or not they do more damage to the rights of their fellow citizens by their actions.

If there's anything we should learn from this most recent disgraceful row over the basic rights of Americans, including as well the ruling in California about equal protection under the law for citizens of California to marry those who they love, is that those who would qualify the rights and the freedoms of all citizens based on ignorance and cynicism can get their "Buts" out of here.

(Cross-posted from Bark Bark Woof Woof.)

Talking to a brick wall: Ted Olson and the "conservative case" for same-sex marriage

By Michael J.W. Stickings

It is indeed extremely helpful that Ted Olson, a prominent conservative Republican legal figure, is a prominent supporter of same-sex marriage, and the "conservative case" he makes for it is indeed a strong one:

Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation's commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.

This bedrock American principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike.

But I much prefer the case based on human and civil rights irrespective of political ideology. (As the case he makes implies that liberals are against marriage, family, and community, or at least aren't nearly as committed to them as conservatives are.)

Conservative opposition to same-sex marriage, rooted in bigotry (what else?), is indeed deeply hypocritical given conservatives' admiration of the institution of marriage, but what Olson doesn't seem to understand, or at least to acknowledge, is that conservatism, or at least the dominant strains of contemporary conservatism, does not consider the "principle of equality" to be anything "bedrock" or "central." If it did -- if conservatives really were committed to "the revolutionary concept expressed in the Declaration of Independence" -- Olson wouldn't be such a rare exception among his own kind.

Olson has a leading voice on the right, but he's speaking rationally inside a hurricane of irrationality and about justice to a political movement that has embraced injustice as a driving force. I admire him for this, but I fear he'll get nowhere.