Update: Women’s Discrimination Daymare ~ 14th Ammendment of the U.S. Constitution

There was alot of interesting follow up to my post yesterday, “Women’s Discrimination Daymare: 14th Ammendment of the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation“.   The follow up was directed at Justice Scalia, not myself of course.   Much of the follow up came in the form of comments on the Huffington Post article itself, here are a few excerpts:

• Cinnamonape:  “The fact that the 14th Amendment doesn’t accord women equal rights is…in a sense correct…­since women were not considered “citizens” at the time.  But it did not deny that : “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 law; nor deny to any person within its jurisdicti­on the equal protection of the laws. Once women were given their full citizenshi­p rights by the 19th Amendment the 14th Amendment fully applied to women.”
• BoyinBOYCOTT: ” Scalia may have been too clever by HALF shooting off his mouth this way. NOW he should be forced to RECUSE himself when ever a case brought befor the Court deals with the equal Rights of a woman, and LGBT person, or a Latino, since he has demonstrat­ed he is PRE- preducial against them, and their protection­s the Consttitut­ion affords them.  OUR Constituti­on begins with WE THE PEOPLE, we is the plural encompasin­g ALL people, and the word people doesn’t seperate anyone from the government WE created and WE control.”
• myhomeo: “It’s funny that back in the 70′s right wingers were saying that The Equal Rights Amendment wasn’t necessary because the constituti­on already guaranteed women equal rights. I guess they were wrong.”

I’m not a lawyer, just a barista, but, in looking at the history behind the Fourteenth Amendment its interesting to note that women were split on supporting it or not, (from Women’s Rights at About.com):

Some women’s rights supporters, including Lucy Stone, Julia Ward Howe, and Frederick Douglass, supported the Fourteenth Amendment as essential to guaranteeing black equality and full citizenship, even though it was flawed in only applying voting rights to males. Susan B. Anthony and Elizabeth Cady Stanton led the efforts of some women’s suffrage supporters to defeat both the Fourteenth and Fifteenth Amendments, because the Fourteenth Amendment included the offensive focus on male voters. When the Amendment was ratified, they advocated, without success, for a universal suffrage amendment.

It wasn’t until 1872 that the court found that:

The unanimous decision of the US Supreme Court found that women born or naturalized in the United States were indeed American citizens, and that they always had been even before the Fourteenth Amendment. But, the Supreme Court also found that voting was not one of the “privileges and immunities of citizenship” and therefore states need not grant voting rights or suffrage to women.

So that’s a real kick in the teeth.  Finally we aren’t property BUT, that voting thing, forget about it.   Still, it wasn’t until 1971 that it was decided that the Fourteenth Amendment did in fact protect women,

In 1971, the Supreme Court heard arguments in the case of Reed v. Reed. Sally Reed had sued when Idaho law presumed that her estranged husband should be automatically selected as executor of the estate of their son, who had died without naming an executor. The Idaho law stated that “males must be preferred to females” in choosing estate administrators.

The Supreme Court, in an opinion written by Chief Justice Warren E. Burger, decided that the Fourteenth Amendment did prohibit such unequal treatment on the basis of sex — the first US Supreme Court decision to apply the Fourteenth Amendment’s equal protection clause to gender or sexual distinctions. Later cases have refined the application of the Fourteenth Amendment to sex discrimination, but it was more than 100 years after passage of the Fourteenth Amendment before it was applied to women’s rights.

So, it appears Justice Scalia is both correct and incorrect.  Corrrect concerning the written letter of the law, but as to it’s application in protecting women, it’s clearly settled.  Still, it seems to me his admonition that, as citizens, if we want change, we must, “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” is still wise counsel.  Fortunately in the United States, we can do that by votes and lobbying and not guns.