Will Scalia Tell Congress That the Constitution Leaves Women Out?

01/24/2011 01:56 pm ET | Updated May 25, 2011

Today, Justice Antonin Scalia will provide a lesson on the Constitution to incoming House members when he speaks at an event organized by Tea Party leader Rep. Michele Bachmann and her "Constitutional Conservative Caucus."

The public commentary on this event has primarily focused on whether it raises ethical concerns for a Supreme Court Justice -- particularly one who has been dubbed "the Justice of the Tea Party" in the blogosphere -- to speak directly with Members of Congress about legal issues that could arise in cases before the Court. But we think another question should also be asked: what is the Justice going to tell these lawmakers that the Constitution says about equal protection guarantees for women?

After all, Justice Scalia recently asserted that the Constitution does not protect women against discrimination on the basis of sex. ("Sorry to tell you that," he thoughtfully added in the interview.) And indeed, in his 26 years on the Supreme Court, Justice Scalia has never joined any opinion that held that a law or policy violated the Constitution because it discriminates on the basis of sex.

Given the 40 years of robust Supreme Court precedent holding that, in fact, the Constitution's promise of equal protection of the law does extend to women, Justice Scalia's assertion to the contrary is a shocking statement. The Constitution's prohibition of sex discrimination has been recognized across the judicial spectrum, not only by champions of women's rights, such as Justice Ginsburg (who herself argued and won many of the foundational cases establishing this principle), but also by conservatives such as former Chief Justice Rehnquist. Indeed, Reed v. Reed, the 1971 Supreme Court case that was the first to strike down a law that discriminated against women, was a unanimous decision.

Because of Supreme Court decisions applying the equal protection guarantee of the Constitution, the military can't deny female servicemembers spousal benefits that it gives to members of the service who are male. The spouses of working women, as well as working men, are entitled to Social Security benefits and worker's compensation benefits if their partners die. Women and men must be permitted to serve on juries on an equal basis. Husbands do not have the legal right to control marital property without their wives' consent. A state cannot provide a unique educational opportunity, such as attendance at a military college, only to men. Justice Scalia's vision of the Constitution, would turn back the clock on these important protections.

The Justice's speech to lawmakers today will reportedly focus on the separation of powers, a topic that might seem far afield from the Equal Protection Clause. But, in fact, Justice Scalia's criticism of the 40 years of precedent that include women in the Constitution's protection is an argument about separation of powers -- that is, the distinct roles played by Congress and the judiciary, and the limits on the power of each.

According to Justice Scalia, judges improperly usurp the power of Congress when they strike down laws that discriminate on the basis of sex. Because Justice Scalia rejects the notion that the Constitution's Equal Protection Clause provides a fundamental guarantee that the law may not discriminate on the basis of sex, he believes that judges have no power to restrict lawmakers' decision to discriminate on the basis of sex. If lawmakers conclude that it would save government funds to pay female public employees lower wages than male public employees, for example, then according to Justice Scalia, they have the power under the Constitution to do so. Let's hope that in the future the "Constitutional Conservative Caucus" also hears from those who respect longstanding Supreme Court precedent and the constitutional rights of women.