Justice Scalia and Women's Rights

Supreme Court Justice Antonin Scalia has recently been arguing that the Constitution does not, in fact, bar sex discrimination.  The Court has held for almost forty years that the equal protection clause of the Constitution protects women from sex discrimination.  Scalia says that €œIf the current society wants to outlaw discrimination by sex, you have legislatures.”

Of course Congress has outlawed sex discrimination in employment (Title VII and the Pregnancy Discrimination Act) and education (Title IX), among other settings.  And twenty states have amended their state constitutions to explicitly prohibit discrimination through Equal Rights Amendments.

Scalia says he is not against equal rights for women, it€™s just that he believes in a strict, literal interpretation of the Constitution.  He focused on the fact that the 14th Amendment was drafted after the Civil War to help protect the civil freedoms of black slaves.  “Nobody thought it was directed against sex discrimination,” Scalia said.

Some feminist scholars have argued that women have their own Constitutional Amendment directed against sex equality — the 19th Amendment.  The 19th Amendment guarantees equal voting rights to women.  The 70-year battle for women€™s suffrage was more than just about the vote; it was a comprehensive attack on all of the laws and social customs that relegated women to a subordinate position and denied them equal political, social, and familial rights.  Shortly after its passage in 1920, the U.S. Supreme Court interpreted the 19th Amendment in this historical context and held that the amendment contained a general guarantee of sex equality that extended beyond voting.  The Court used this general equality right to then strike down a labor law that provided different maximum working hours for women in Adkins v. Children€™s Hospital.