Given Scalia's recent blathering, here again is Colbert's 9/30/10 evisceration of his sexism

[spooky3]

In case you need background, Scalia has again opined that, contrary to a 1971 9-0 US Supreme Ct. decision, the 14th amendment to the Constitution does not apply to sex discrimination.

http://www.huffingtonpost.com/2011/01/03/scalia-women-discrimination-constitution_n_803813.html

This is not the first time Scalia has offered such a bizarre, and sexist, interpretation of this amendment. In Sep. of last year, Stephen Colbert showed just how hilariously wrong Scalia was (and is).

http://www.dailykos.com/story/2010/9/30/906627/-Stephen-Colbert-destroys-Scalias-interpretation-of-Constitution

Why anyone thinks Scalia is brilliant is beyond me.

[freshwest]

1. Saw a clip with Scalia doing his best godfather imitation...

He said the Supreme Court was being given cases about things that no one had enough wisdom to decide. There is some truth to that.

But his demeanor was like, 'Hey, what you expect us to do about this stuff? We don't know. Nobody knows. So we'll just toss something out.'

He didn't say those exact words, but it sounded that way.

Thanks for bring that, Colbert had me LOL as always. And I do mean loud.

And possibly, the only ones who say Scalia is brilliant are being paid to say that... Just sayin'

[spooky3]

2. well, if we take him seriously, the response is

"then you have an easy solution. Just deny certiorari and let the lower ruling stand, if you don't feel wise enough to decide."

[freshwest]

3. It would reduce their case load, wouldn't it?

But it seems now they are there to do the bidding of the corporatists, and greed never sleeps. Okay, snark.

I do remember them leaning on the Universal Declaration of Human Rights some time back in making decisions.

There were complaints about that, despite our being signatory to the United Nations and part of the founders of the United Nations, that they were not following the US Constitution.

Many laws in the USA are being made to conform to international treaties signed, which I understand we are obligated to live up to, but not what the people or domestic laws or agencies want to have happen.

But I don't for a minute believe that anyone as corrupt by blatant partisan actions as Scalia and Roberts care one way or the other.

[happyslug]

4. Can't find the case in 1971 where the 14th applied to women, I did find a 1971 discrimination Case

The problem is the 1971 case, PHILLIPS v. MARTIN MARIETTA CORP., 400 U.S. 542 (1971), a 9-0 decision, only ruled that the Civil Rights Act of 1964 forbade discrimination against women. The 14th amendment is NOT mentioned for the Court did NOT have to address the 14th amendment when it ruled what Martin Marietta has done violated the Civil Rights Act of 1964. The US Supreme Court did not have to address the 14th for it was clear the action of Martin Marietta was clearly illegal under the Civil Rights Act of 1971:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=400&invol=542

My point is simple, Scalia may be right, the 14th amendment does NOT protect woman's rights, it permits Congress to pass laws to protect Civil Rights (which can include Women's Rights) but by its clear language and the intention of the Congress that passed the 14th AND the states that ratified it, Women's rights were NOT even Mentioned.

Worse you have the opinion of the leaders of the Women's rights movement of the 1860s, those radical feminists OPPOSED the 14th amendment do to the language of Section 2 of the 14th amendment:

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Notice the term "MALE" is used (Used twice in the above section), it is the only place in the entire US Constitution where the term "Male" is used (The term "Female" is NEVER used in the Constitution of the US, the 19th Amendment giving women right to vote is worded as follows "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.").

The use of the term "Male" was the reason the Women's rights movement of the 1860s OPPOSED the 14th Amendment. The use of the term "Male" also shows that Congress knew what it was doing when it used the term "person" elsewhere in that amendment. If Congress wanted to extend the protection of the 14th to include discrimination against women, it could have done so, but it is clear Congress was only concerned about discrimination based on RACE not SEX. Under the 14th every state in the Union could discriminant against Women Voting for it clearly shows that Congress NEVER intended that discrimination based on sex be protected by the 14th amendment. What Congress was concerned about was Racial Discrimination only, thus the use of the term "Male" if voting rights were restricted for every state in the Union at that time only males could vote.

For amendments 11-27 of the US Constitution:
http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html

[spooky3]

5. Check this out: Reed v. Reed

http://www.oyez.org/cases/1970-1979/1971/1971_70_4

I think the other point that seems clear to a non-lawyer (lawyers may disagree) is that the language of the amendment itself is very clear. There is no need to speculate about intent and mindsets, etc., and how much deference to give them, how to apply the speculated-upon principles consistently across other cases, etc., when the language is crystal clear.

Since the 14th amendment used the language "all persons" and didn't exclude women (or men), I think the point that others have made is that the burden is on the person who wants to claim that certain "persons" should be excluded from the protection of the Constitution, and this is a heavy burden. The burden is not on those who want to claim that because women weren't specifically mentioned or discussed, they should be presumed to be excluded. You have to look at the language itself.

The Reed case was mentioned here:

http://www.dailykos.com/storyonly/2011/1/4/115517/0593

I should note also that the vote was 7-0 (2 didn't participate), not 9-0 as stated in my OP.

[freshwest]

6. Neither the 14th nor 15th granted women the right to vote.

Reed v Reed was a matter of state law and they have been poor in granting rights, dependent on the cultures within them.

It required the 19th to get women voting rights.

Scalia is blowing smoke, but the media and fundies will grab at every straw to take away all women's rights. And many people have blinders on about what these regressives intentions are for women, including women themselves.

The GOP and Scalia want to take this country back to before the Civil War era. Heck, before the Revolution, probably.

They've attacked Obama for his so-called 'anti-colonialist views They would have attacked Washington, too.

Oh, I'll stop railing about regressives. We are in agreement, though.

[spooky3]

10. agree that we're in agreement -- just a couple of minor points

There are many examples in history of how all the ramifications of a law weren't understood at the time. So it's not at all hard to fathom how people might have decided that the 19th amendment was necessary.

I don't think anyone claimed that Reed v. Reed was a comprehensive decision, i.e., that it outlawed all sex discrimination in a broad way. However, its existence does directly contradict the claim that *Scalia* made, which was that it wasn't relevant to sex discrimination. In other words, *he* is staking out the all-or-none position; you and I and others are not, so the burden is on him to show that the 14th amendment can never be applied to sex discrimination. In that case the US Supreme Ct. ruled to the contrary, and that precedent has not been overturned by the US Supreme Ct, and no statute has been enacted to overturn it.

[happyslug]

7. In Reed, the Court ruled a law has to have SOME merit for difference in treatment

The actual Reed Case:
http://supreme.justia.com/us/404/71/case.html

The Key paragraph is as follows:

In applying that clause , this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U. S. 27 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949); McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia, 253 U. S. 412, 253 U. S. 415 (1920). The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state object that is sought to be advanced by the operation of §§ 15-312 and 15-314.

Thus that decision is a very narrow reading of the 14th as to women's rights. The Court basically said they could not see any reason for the preference for a father over a mother when it comes to handling the estate of a deceased child. The rationale of the Idaho Supreme Court, that it was just a way to avoid litigation, was NOT good enough (through it was good enough for the Idaho Supreme Court after reviewing the same decisions as the US Supreme Court did). The key is simple, first is the law handling men and women differently and if yes, is the reason for that difference based on reasonable motives.

Side note: One thing to worry about with the above is the concept since the 1930s of great difference by the courts to the determination of handling different groups of people differently to the State Legislatures and Congress. For example the Court will NOT review a decision of a State to license eye doctors and determine who is an eye doctor. The Courts will NOT review a State decision as who can practice law (i.e. what education is required). The State will not review a decision of a state as to what age a child has to go to school, or at what age children can work, These are are deferred to the State Legislatures and Congress.

Reed stands for the narrow position that an arbitrary decision to prefer a group of citizens over another group without any basis violates the 14th amendment, but if any basis exist then the law does NOT violate the 14th amendment. Most actual difference in treatment are reserved to the State Legislature and Congress to determine not the courts.

[spooky3]

9. Take a look at the comments on the dkos thread - and

look closely at the language Scalia used. I think you'll see why Scalia is clearly wrong.

[happyslug]

11. I have read Scalia's Comments.

And I am just pointing out his comments have SOME MERIT. All Reed ruled was that if you discriminated between two types of people (other then on Racial grounds, which is clearly disfavored under the 14th) the discrimination must be based on something real. In Reed the court ruled that favoring a father over a mother had no basis as a matter of law and just because the law had always favored males over females is NOT justification by itself to favor males over females just to minimize litigation.

Reed is a very narrow ruling. All Scalia is saying is that if Congress passes a law permitting discrimination based on sex and came up with any rationale to support that discrimination, that is permitted under the 14th (as opposed to Racial Discrimination which is outlawed by the clear intent of the post-Civil War Amendments, the 13th, 14th and 15th Amendments). In Reed the mere fact that the law in question was passed to minimize litigation (The finding of the Idaho Supreme Court) was not enough of a rationale to withstand an attack under the 14th. At the same time the court made the ruling so narrow that it is an almost meaningless exception.

Just pointing out I can see the US Supreme Court going with Scalia on this point. Some of the Justices will prefer to avoid the whole issue for it is unpleasant and would on its face go against what Congress had done with and since the 1964 Civil Rights Act, but on a straight interpretation of the 14th, discrimination based on sex is permitted given any reasonable rationale for the discrimination (And today's court will probably over rule Reed as to the issue of minimizing litigation, but that is another story on WHO is on the Supreme Court).

[The Backlash Cometh]

8. Italian American Borke.

We would be dealing with the same bizarre reasoning if it had been Borke.