Women's Rights Unconstitutional?

Justice Scalia. via Flickr / Stephen Masker

Today, the day after new congressional representatives were sworn in, the new Republican majority ruled that the new Speaker of the House John Boehner read the U.S. Constitution aloud --something that historians estimate has only been done twice before in U.S. history.

But the reading -- a clearly symbolic reiteration of the centrality of the Constitution to government -- comes hot on the heels of some disturbing comments about women's Constitutional rights from one of the country's most powerful lawmakers, Supreme Court Justice Antonin Scalia.

In a recent interview with California Lawyer, the magazine asked Scalia if it's erroneous to apply the 14th amendment (which includes the Equal Protection Clause that prohibits states from denying citizens "equal protection of the laws" to issues of gender discrimination or sexual discrimination, since the lawmakers who drafted that amendment in 1868 almost certainly weren't considering those kinds of discriminations.

Scalia, a staunch originalist, replies:

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.

So despite winning the right to vote, the fact that women make up half of the U.S. workforce, and constitute a majority portion of university students, despite the fact that Scalia shares the bench of the highest judicial body in the country with two women, there is still no constitutional prohibition against discrimination on the basis of sex.

Terrifying, to say the least.

In response to Scalia's comments, today as Mr. Boehner read aloud, a group of Democratic lawmakers and women's rights activists gathered outside the Capitol Building in the dreary January weather to ask the Republican majority congress to insert an Equal Rights Amendment into the Constitution that clearly protects women's rights.

Until then, despite all the progress we've made toward gender equity in the U.S., women's liberties are not guaranteed.