http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=400&invol=542It is a simple case, important for in a page it ruled that the Civil Rights Act of 1964 (which included women among the list or protected groups) forbade a company from having two hiring policies for men and women with young children. It was NOT a 14th amendment case but a 1964 Civil Rights Act case.
I bring this up for Scalia, no matter how much I dislike his decisions on other issues, is correct on this point. Except for the Right to Vote (Covered by the 19th amendment) women's rights are STATUTORY not CONSTITUTIONAL protected. In many ways I can make the same statement, there is NOTHING in the Constitution that says we have to treat men and women equally. Such discrimination is forbade under the 1964 Civil Rights Act, but it has NEVER been ruled forbidden under the US Constitution.
Now, one of the reason for this is that the Courts will always look to legislature act before any constitutional attack i.e. if a decision can be made based on the actual law in question, a decision based on that issue will be issued. The Constitution will NOT be used to determine a point of law unless it is clear there is no way to make a decision without citing the US Constitution. In Hipps, all the court had to cite was the clear language of the 1964 Civil Rights Act. Even Scalia, had he been on the Court at that time, would have signed off on that opinion. The Lower court took the position that Equal Rights for Women was unclear for Sex had been added to the Civil Rights Act of 1964 during the 90 day filibuster against it, thus you had no hearings on what that term meant unlike the terms "Race and National Origin" which had been throughly discussed in Congress while the 1964 Civil Rights Act was being written. The lower court took this to mean that sexual discrimination was less of a concern of Congress then Racial Discrimination and thus could be held to a lower standard of review (The US Supreme Court would embrace this view in later rulings, but not to the extent the lower courts had held in Hipps).
Just a comment that Scalia makes stupid statements, but sometime those stupid statements have some basis in the law and in this case he is right. The US Constitution does NOT protect women from discrimination, that is the 1964 Civil Rights Act. Scalia is also correct that if the Majority of the House and Senate pass a bill and the President signs the bill, Congress can order such discrimination. The 14th amendment permits Congress to pass Civil Rights Laws, but it does NOT require Congress to do so.
Now in California you have the situation where a Federal Judge ruled as a matter of FEDERAL CONSTITUTIONAL Law that California law forbidding homosexual marriages was violated the US Constitution. I question that to be the case and so do a lot of other lawyers and thus why the issue of Standing to file the appeal is so important. If no one has standing to appeal, no appellant court can over rule the Judge. If on the other hand the Court of Appeals or the US Supreme Court rules the people who want to file an appeal has standing to file the appeal then you have a very good chance of the Judge's decision being reversed on the simple grounds that the Court of Appeals or the US Supreme Court would rule that such a law does NOT violate the right to equal protection of the laws as set forth in the 14th amendment. It is clear the 14th was intended to make it clear that the 1866 Civil Rights Act was Constitutional and by the end of the 1800s been expanded to include corporations, but those laws all reflected efforts to regulate Corporations in how their operated AND where they could operate (The first case involved the need for Railroads to have fencing while local farmers were NOT required, the Court ruled such a law violated the 14th amendment, both the railroad and the local farmers had to be subject to the same rules and in that case were NOT). When it comes to marriage the argument will be there is no violation of the 14th amendment for the law applies to everyone equally, you just can NOT marry a person of the same sex. Everyone is being treated equally and thus no violation of the 14th amendment to the US Constitution.
Scalia actually makes a point without citing that case by saying the US Constitution does NOT forbid discrimination or forbid laws banning discrimination. Congress and the States can do both through the simple means of changing the law and the US Supreme Court will uphold whatever Congress or the States do in those cases. Scalia is mealy saying that it is NOT up to the US Supreme Court to make the law but Congress and the States UNLESS either clearly violates a provision of the US Constitution. When it comes to discrimination based on sex or sexual orientation Congress and the States can do as either sees fit to do. It is NOT up to the Court to "reform" the laws of the United States, but Congress and the States and for this reason the US Constitution has never forbade Sexual discrimination except for the right to Vote.
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