Feminists, Democrats Say Justice Scalia’s Remarks Make It Essential to Pass Constitutional Amendment for Women’s Rights

By Penny Starr | January 7, 2011 | 8:34 AM EST

Thursday's press conference featured a photo op with volunteers holiding ERA signs and a banner. (Photo: Penny Starr/CNSNews.com)

(CNSNews.com) – Several House and Senate Democrats joined feminists at a press conference outside the U.S. Capitol on Thursday to push for the introduction and passage of a constitutional amendment guaranteeing women’s rights.

The conference was timed to coincide with the reading of the U.S. Constitution on the House floor, as ordered by the newly elected Speaker of the House John Boehner (R-Ohio).

“Recently, Supreme Court Justice (Antonin) Scalia stated his opinion that no provision in the Constitution, or the 14th amendment, would provide full and true equality to women and give them protection against sex discrimination,” Rep. Carolyn Maloney (D-N.Y.) said.  “He also said that if laws were enacted sanctioning discrimination, they would be constitutional.”

Scalia, in a recent magazine interview, said it's the job of lawmakers, not the Constitution, to reflect the wishes of an evolving society: "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't," Scalia said in the interview with California Lawyer magazine.

"If the current society wants to outlaw discrimination by sex, 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.”

Sen. Robert Menendez (D-N.J.) also objected to Scalia's remarks. “When you hear the Constitution being read today [on the House floor], what you will not hear is language specifically guaranteeing women equal protection under the law.” Scalia's remarks, the senator said, show that Scalia "interprets the Constitution to contain no equal protection for women. In other words, he may not be predisposed to protect the rights of women when gender discrimination cases come before the Supreme Court of the United States.”

According to Menendez, “Justice Scalia’s recent comments have made it crystal clear that until equal protection for women is explicitly spelled out in the Constitution, the courts might not guarantee it.” He plans to introduce the Equal Rights Amendment in the Senate along with Maloney’s introduction of a similar bill in the House.

Rep. Carolyn Maloney (D-N.Y.) and Sen. Robert Menendez (D-N.J.) plan to introduce the Equal Rights Amendment in the 112th Congress. (Photo: CNSNews.com/Penny Starr)

Maloney and Menendez and others at the press conference were referring to a Q&A with Justice Scalia published this month by California Lawyer magazine. Scalia was interviewed by U.C. Hastings Law Professor Calvin Massey, who asked Scalia about his belief in an enduring Constitution instead of one that is evolving -- and what that means to him.

“In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do,” Scalia said. “It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution.”

“Now if you give to those many provisions of the Constitution that are necessarily broad -- such as due process of law, cruel and unusual punishments, equal protection of the laws -- if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all,” Scalia said.

“If the cruel and unusual punishments clause simply means that today's society should not do anything that it considers cruel and unusual, it means nothing except, ‘To thine own self be true,’” he said.

Massey's next question in the interview focused on the 14th amendment. He asked Scalia: “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?”

Scalia answered, “Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. 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, 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,” said Scalia. “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.”

Rep. Gwen Moore (D-Wisc.) was one of many at the press conference who criticized Supreme Court Justice Antonin Scalia for remarks he made in a recent magazine interview that she and others said were anti-women's rights. (CNSNews.com/Penny Starr)

At Thursday’s Capitol Hill press conference, some participants mocked both Scalia and the reading of the Constitution on the House floor.

“John Boehner and his cronies are holding up the U.S. Constitution as a sacred, perfect document,” Terry O’Neill, president of the National Organization for Women (NOW), said in a statement distributed to reporters.

O’Neill’s statement said the feminists' press conference was held to highlight the fact that women still are not fully protected in our nation’s Constitution.

“We are way past due for a constitutional amendment explicitly acknowledging women’s rights in the United States,” O’Neill said. “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 U.S. Constitution.”

At the same time, participants cited the 14th amendment's equal protection language as evidence that women are protected under the Constitution and that Scalia’s opinion that sex discrimination would be constitutional is wrong.

“This would come as a great surprise to the majority of American women and many like-minded men who believe we are covered by the Constitution,” Maloney said, referring to Section 1 of the 14th amendment, which says: “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 the law; nor deny to any person within its jurisdiction the equal protection of the laws.”

“Justice Scalia has said that women have no rights,” said Rep. Gwen Moore (D-Wisc.), who co-chairs the Congressional Women’s Caucus. “It is deeply disturbing to hear the strict constructionist views of the Constitution that would go so far as to declare that women are not protected under the 14th amendment.”

NOW’s O’Neill included Boehner in her condemnation of men in positions of power who she claims are against equality for women. She cited the Speaker’s opposition to the Lilly Ledbetter Fair Pay Act of 2009. “As long as there are men in this country that keep women down, we have to have an explicit guarantee of equality in the Constitution,” O’Neill said.