JD Journal » 14th amendment

The World According to Scalia

joshua — Wed, 05 Jan 2011 18:47:52 +0000

According to Supreme Court Justice Antonin Scalia’s version of originalism, the Constitution does not protect women from state sponsored discrimination.

Originalism is a doctrine, or more accurately a family of doctrines, that can be used to interpret the Constitution. An originalist interpretation of the Constitution looks to the meaning as it was understood at the time of writing. For example, an originalist interpretation of the 8th amendment, barring cruel and unusual punishment, would only consider a punishment cruel if it was considered cruel in the 18th century. By contrast, a non originalist reading would stick to the text but would examine modern standards of cruelty to determine if a punishment was in violation. Justices Scalia and Clarence Thomas are the country’s leading originalists, but the doctrine has become increasingly popular, primarily but not exclusively among the right wing.

The 14th amendment reads in part “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.” The Court wasted little time in finding that this clause, referred to as the “equal protection clause”, protected citizens from state sponsored discrimination based on race. The original rulings were narrow however and permitted the creation of all white and all black schools, for example, so long as the facilities were equal. The “separate but equal” doctrine was famously overturned in 1954 in Brown v Board of Education. However, the Court rejected numerous attempts to apply the equal protection clause to cases of discrimination based on gender until a unanimous Court ruled in 1971 that a state could not enforce a law that mandated males be given preference over females as estate executors in probate court (Reed v Reed). As a side note, one of the attorneys that argued the case was Ruth Bader Ginsburg, herself a Supreme Court Justice today. It has been a matter of settled law in the years to follow that the government can not discriminate on the basis of gender, along with race and ethnicity. Yet despite his supposed respect of stare decisis, Scalia was the sole dissenting vote in a 1996 case that forced the Virginia Military Institute to end its practice of denying women the right to attend.

Scalia and the 14th amendment are back in the news because of the recent publication of an interview he gave back in November in which he said, among other things, “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, hey we have things called legislatures, and they enact things called laws.”

Justice Scalia apparently believes that the Constitution is meant to be read as a limitation on the rights of the people rather than a limitation on the power of the state. For nearly a century, women’s rights activists attempted to amend the Constitution to explicitly ban government sponsored discrimination based on sex, and after repeated setbacks the Equal Rights Amendment was finally passed by both houses of Congress in 1972 and sent to the states for ratification. All told, 35 states ratifies, 3 shy of the 38 required. Five of those states have since rescinded their ratifications, although the validity of those rescissions is in dispute. The bill passed by Congress in 1972 required ratification to occur by 1979, later extended to 1982, but no additional states ratified and the amendment is considered to be dead in the water today. Under Scalia’s interpretation, the failure of the states to ratify is an open invitation for continued discrimination based on gender.

Although even a rightward leaning Court is unlikely to reverse 40 years of anti discriminatory rulings, Scalia’s interpretation of the 14th amendment has plenty of allies, particularly when it is applied to discrimination based on sexual orientation. As the Proposition 8 case from California works its way through the system to the almost certain appeal to the Supreme Court, Scalia’s interview leaves little doubt as to how he would rule.

Prop 8 Argument Recap

joshua — Tue, 07 Dec 2010 15:53:04 +0000

Legal giants David Boies and Ted Olson appeared once again on behalf of their clients to argue that California’s Proposition 8, which effectively banned same sex marriages, is unconstitutional. This time that forum was the 9th Circuit Court of Appeals and this time it was televised live. The oral arguments in the case lasted nearly three hours and were divided between procedural issues and the issues directly involved in the case. While it is always difficult to make predictions based on the questions that judges ask, I’ll go out on a limb and do so anyway. I would expect the three judge panel to find that the supporters of the initiative, but not the deputy clerk of Imperial County, have standing to appeal by carving out an exception to the standing rules for sponsors of ballot initiatives that are being challenged in court. Furthermore, I believe the three judge panel, composed of one moderate conservative, one very liberal and one center-left judge will uphold the lower court’s injunction barring the enforcement of Prop 8. My best guess is that they will limit the scope of the ruling based either on the fact that California once gave same sex couples the right to marry so taking it away is particularly offensive to the 14th amendment, or based on the fact that California gives gay couples all the rights and benefits of marriage and so denying them just the name is a clear equal rights violation. Either way, the ruling won’t go so far as to say that gay marriage is a constitutional right.

You can read live blogs covering the arguments here and here or see an expanded version of my analysis here.

Judge Rules Against California’s Same-Sex Marriage Ban

joshua — Wed, 04 Aug 2010 23:06:18 +0000

A federal judge Wednesday struck down California’s controversial Proposition 8 voter-approved ballot measure that banned same-sex unions.

In his ruling, U.S. District Chief Judge Vaughn R. Walker of San Francisco ruled Proposition 8 violated the 14^th Amendment of the Constitution because it limits the ability of gays and lesbians to marry the partners of their choice, the Associated Press reports.

“Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment,” the judge wrote. “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

The ruling is expected to be appealed to the U.S. 9^th Circuit Court of Appeals and could wind up before the Supreme Court. Proposition 8 was approved by 52.3 percent of California voters in November 2008.

Students and Parents Sue the Chicago School District

joshua — Fri, 13 Nov 2009 23:07:04 +0000

On September 24th of this year, a student at Fenger High School in Chicago was beaten to death while walking home from school. The incident was caught on film. Since then, parents who have tried to transfer their children to other schools out of concern for their safety have been stonewalled by a system that makes transferring schools difficult, at best. Some parents have kept their children home from school in the mean time. Now a group of students and parents is suing the school district, claiming that their right to a public education (a property right) is being effectively denied without due process of law, in violation of the 14th amendment. The parents are seeking an immediate court order forcing the school district to permit mid year transfers out of Fenger High School. The court will take up the case on Monday in an emergency hearing.

Prop 8 Challenge Allowed to Proceed

joshua — Wed, 14 Oct 2009 23:19:21 +0000

Opponents of California’s Proposition 8, which amended the California Constitution to limit marriage to heterosexual couples, have overcome a motion to dismiss their challenge of the law in federal court. Prop 8′s backers argued that the challenge should be dismissed because the Supreme Court let a similar law stand in Minnesota in a 1972 challenge. The judge rejected that argument, saying that much has changed in the Court’s position on a variety of issues in the intervening time. The judge also rejected the notion that couples who can not procreate shouldn’t be married, noting that the last wedding he presided over was between a couple of ages 95 and 83.

The lawyers standing for the opponents of Prop 8 are notable in their own right. Ted Olson, the Solicitor General under President George W. Bush has teamed up with David Boies, who argued against him in front of the Court in the Bush v Gore case.