Supreme Court Justice Antonin Scalia has never been accused of displaying an excess of enthusiasm for extending liberties to Americans who do not happen to share his gender, sexuality and skin color. But now the activist justice is denying that the Fourteenth Amendment's "equal protection" language affords equal protection to women and gay people.
Scalia, the hyper-partisan justice who has agreed to mentor Tea Party conservatives in the Congress at seminars organized by Minnesota Congresswoman Michele Bachmann, Scalia tells California Lawyer magazine: "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't."
Reasonable people might ask: What part of the Fourteenth Amendment's bar against any more by any state to "deny to any person within its jurisdiction the equal protection of the laws" is Scalia missing?
But if we accept that Scalia's pre–Civil War read of the Constitution seems to have achieved significant influence with the Republican majority that made a bumbling attempt to read the document at the convening of the new Congress, then we should also accept that it is time to clarify things.
The National Organization for Women has responded appropriately.
"We are way past due for a constitutional amendment explicitly acknowledging women's rights in the United States," says NOW President Terry O'Neill. "Nothing less will do, as long as sexists like Supreme Court Justice Antonin Scalia feel completely justified interpreting women's rights as unprotected in the US Constitution."
Along with Congresswoman Carolyn Maloney, D-New York, Senator Robert Menendez, D-New Jersey, and others, O'Neill called Thursday for renewal of the movement to enact an Equal Rights Amendment to the Constitution. Maloney focused on the threat posted by the presence of someone who thinks like Scalia on the nation's highest court, arguing that "if he can convince four others to follow him, you could overturn the progress of the women's movement for the last forty years. That's quite a wake-up call."
O'Neill pulled out a copy of the Constitution and read the Fourteenth Amendment.
"A man in power like Antonin Scalia insists the word 'person' does not apply to half of the population of the United States," she declared. "As long as there are men in power in this country who keep women down, we need an explicit guarantee of equality in the Constitution."
While O'Neill is certainly right about Scalia's sexism, even she must give the Jurassic jurist his due: his rejection of the standard reading of the Fourteenth Amendment has indeed highlighted the fact that women still are not fully protected in our nation's Constitution—and the fact that it is time to renew the document's historic promise by amending it to provide explicit protections for women.