Antonin Scalia | Discrimination | News | Supreme Court

Scalia: Constitution Does Not Outlaw Bias Over Sexual Orientation


Supreme Court Justice Antonin Scalia spoke at UC Hastings Law School (which as you may recall was recently involved in a SCOTUS case of its own), and told those assembled that the U.S Constitution does not outlaw discrimination based on sexual orientation:

Hastings "If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

The 74-year-old justice, leader of the court's conservative wing, is also its most outspoken advocate of "originalism," the doctrine that the Constitution should be interpreted according to the original meaning of those who drafted it.


"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."

The court has not applied the same exacting standard to discrimination based on sexual orientation, an issue it could reach in several cases now in lower courts, including the dispute over California's ban on same-sex marriage.

But when the justices overturned laws against gay sex in 2003 as a violation of personal autonomy and due process, Scalia dissented vehemently. He compared the anti-sodomy laws to statutes against incest and bestiality and said many Americans view bans on homosexual conduct as protections for themselves and their families against "a lifestyle that they believe to be immoral and destructive."

Scalia said Friday he's not a purist and is generally willing to accept long-standing court precedents that contradict his views.

More HERE.

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  1. At least at 74 we won't have to put up with this ass more than another 10-15 yrs.

    Posted by: pietro | Sep 19, 2010 10:12:48 AM

  2. Ah, the so-called "originalists," AKA the "why, oh why can't things still be exactly like they were in 1787?" crowd. Scalia can couch things in phony "originalism" claims all he likes, but the truth will always be that he's nothing more-- and has never been more-- than a far-Right judicial activist thug.

    Posted by: bobbyjoe | Sep 19, 2010 10:16:49 AM

  3. Gasp! He's an activist judge!!!

    Posted by: KMC | Sep 19, 2010 10:24:02 AM

  4. Originalism is a modern invention.

    Posted by: jeffg166 | Sep 19, 2010 10:27:01 AM

  5. I don't wish ill health on anyone, but please retire soon.

    This is why it is still always important to vote democrat for President. If Mccain had won in 08 we would have had two conservative judges replace liberal to moderate ones. We have four justices that are in their mid 70s now, so it's important that there's not a tea bagger/conservative sitting in the Oval Office in the near future.

    Posted by: Brian in Texas | Sep 19, 2010 10:28:27 AM

  6. ok, true originalism

    James madison as MAIN writer of the constitution. Can't get any more original on intent than by reviewing the mind of the main who wrote most of it

    "An alliance or coalition between Government and religion cannot be too carefully guarded against......"

    "Rulers who wish to subvert the public liberty may have found an established clergy convenient auxiliaries. A just government, instituted to secure and perpetuate it, needs them not."


    "Strongly guarded... is the separation between religion and government in the Constitution of the United States the danger of encroachment BY Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history"

    and a hundred more

    Originalism would thus dictate per the first amendment and especially since the first amendment focuses on the gov not establishing religion, the original intent was that religion was dangerous and

    1- round up all priests and bishops in america (scalia is catholic) and question them all on what they knew and when they knew it about the national crime of the sexual abuse of us children by this foreign led group

    2- pull the US ambassador to the vatican back home and kick the vatican ambassadorial group out of the US gov provided house in DC

    3- fire the congressional preacher

    4- fire all military chaplans

    5- remove the modern creation of "in god we trust" and "...god..." from our money and our pledge. Originalism dictates that the founders never ever claimed "Creator" refereed to in the constitution as god.


    The founders when the constitution was writen were living in an ignorant time as compared to ours and themselves were in many ways more ignorant of the workings of the world around them than a modern elementary school kid


    Posted by: | Sep 19, 2010 10:32:18 AM

  7. "Originalism" I suppose is an interesting legal theory, but that horse has long left the barn. It is the role of SCOTUS to interpret the constitution - that was solidified long ago with Marbury v. Madison. As Olson recently commented - people claim judicial activism when they don't like the ruling. That said, I don't believe this means that Scalia would vote against marriage equality. This is probably naive on my part, but generally I think that SCOTUS tries to do what they believe is the right thing.

    Posted by: Mike | Sep 19, 2010 10:39:15 AM

  8. Excellent post MSTROZFCKSLV.

    Beyond "originalism" being a modern concept that Scalia now propegates to keep himself from looking like the bigotted asshole he is, it also reeks of regressive, backwards concepts. It's the "earth is flat" concept, that we've grown out of.

    I would also ask Scalia if he speaks to dead people since he now knows what was in each of their heads when they created the constitutional documents.

    Bottom line, he just wants to justify his fat, disgusting, pig-like bigotry.

    Posted by: Bart | Sep 19, 2010 10:39:18 AM

  9. Hmmm...I wonder how Scalia feels about racial minorities...I mean, if we want to go all "originalist" on the constitution.

    Posted by: Jon Lee Hart | Sep 19, 2010 10:39:41 AM

  10. this ugly, fat, old fart will blindly follow his religion and his pope to perdition. which part of the dictum that "all men are created equal" does he not get? does he really support originalism? then, let us enslave the cannanites again; they bear the curse of hamm, after all. the founding fathers were weened on the enlightenment. they saw the constitution as an evolving document. they did not forsee that women and blacks would never awake to freedom. i suppose, way back when, they thought that only landowners should have a say. within the course of human events, however, they must have pondered the idea that negroes and women were also sentient beings capable of self-actualization. i simply can't see his rationalization for codifying prejudice. his argument is built on a house of cards that will surely collapse as his soul will when called to a reckoning.

    can you imagine what this fat fuck's ass-crack smells like? i'm guessing ravioli and desperation as his world implodes.

    Posted by: nic | Sep 19, 2010 11:04:44 AM

  11. This 'phobe isn't qualified to talk about discrimination. I don't understand why a law school would ask him to speak. We shouldn't listen to him. He doesn't apply the Constitution fairly.

    Posted by: Kelly in Atlantic City | Sep 19, 2010 11:11:53 AM

  12. On the walls of the Jefferson Memorial are words of Jefferson to the effect that the laws of the land must adjust to the thinking of the times. To try and apply the law of two hundred years ago to the situation of today, said Jefferson, would be like trying to have an adult wear the pants he wore when he was a child.

    The Founding Fathers recognized the need to be free of the burden of this stupid fat man's "Originalism."

    Posted by: candideinnc | Sep 19, 2010 11:29:13 AM

  13. I'm appalled that a sitting justice of the most powerful court in the USA would hold forth in public on these matters at all. Such clearly doctrinaire comments only weaken his court and further expose his personal bias.

    Posted by: Tone | Sep 19, 2010 11:39:24 AM

  14. When is he going to choke on a calzone?

    Posted by: Jane Roe | Sep 19, 2010 11:45:29 AM

  15. Justice Scalia is one of the four reasons I voted for Obama in '08 and will again in '12. The other three are Alito, Roberts, and Thomas. Our rights ultimately will be determined by the Supreme Court, given current prevailing political cowardice, and I wish the progressive electorate would come to understand the importance of liberalizing the Court.

    Posted by: RichardR | Sep 19, 2010 12:06:55 PM

  16. History will not judge him well.

    Posted by: Rob G. | Sep 19, 2010 12:37:26 PM

  17. If we want to talk about originalism, then it's probably safe to say that a Catholic man of Italian decent was not envisioned by the founding fathers as somebody who would sit on the supreme court. During the 19th century, Italian imigrants were heavily discriminated against and Catholicism was held highly suspect. So how original does he want to get?
    Mr. Scalia needs to recuse himself from any future cases regarding LGBT discrimination, since he has now discussed his views in public. I have no respect for judges who make knee-jerk decisions. Of all of the justices, he and Clarence Thomas are the predictable knee-jerkers on the court. Everyone knows what and how they'll rule even before a case is even presented. Activist judges indeed.

    Posted by: Brad | Sep 19, 2010 12:39:37 PM

  18. Not a lot of constitutional scholars in this room I see. Scalia, for all his flaws, is actually one of the few justices who at least has a view of the constitution and sticks to it. Originalism is not new, it is not modern. Justices have been fighting over this since there were justices. You don't have to agree with it, but originalism is not an invention of Scalia and he is certainly not the only one who has supported it. Seeing the Constitution as a living document is far more recent a phenomenon. I mean you do know that it took an actual constitutional amendment to grant women the right to vote? No one read that into the constitution (even though one could easily argue the 14th Amendment grants equal protection to women in that regard).

    And in most cases relating to sexual orientation, it has nothing to do with what the authors of the Constitution thought in has to do with what they thought in 1868 when the Fourteenth Amendment was adopted. His point being that unless you amend a constitution to give people the rights you want them to have, then the Constitution doesn't say something it doesn't say. I disagree with him personally regarding the 14th Amendment (as do many justices), but he's at least consistent in his views and generally does not support a broad reading of substantive due process as a tool to establish rights under the Constitution that he does not think were ever intended in the Fourteenth Amendment. It doesn't make him a bigot.

    Besides, Justice Thomas is by far much more the originalist than Scalia...Scalia just gets all the flack for it because he actually writes opinions.

    It's become so easy for people to throw out words like bigot. I doubt anyone here who has done it has actually ever read or studied anything Scalia or the other justices on the court during the time he has been there has written. He isn't the first justice to have a narrow view of the Constitution. I doubt he'll be the last.

    Posted by: Tyler | Sep 19, 2010 12:40:36 PM

  19. Why is it that originalism usually always confirms the bias of those who rely on it? And if consistency seems to be the only feature that recommends scalia's approach to jurisprudence from at least one poster, what is it about consistency for its own sake that makes it better than (your normative claim) inconsistency? What is important about understanding the mindset of the legislators who passed the fourteenth amendment if it precluded both women and gays? Who cares about their likely interpretation was when others that extend equal rights and participation are equally consistent with it? I mean, do you have any idea how misguided a theory of language that is?

    And scalia is most definitely a bigot...uh huh, uh huh. He's just not as stupid as your typical bigot.

    Posted by: TANK | Sep 19, 2010 12:49:08 PM

  20. Tyler: I think a close reading of Scalia's dissents in Romer v. Evans and Lawrence v. Texas gives him at least a colorable claim to the title "bigot." His language goes quite a ways beyond a dispassionate application of originalism.

    Posted by: Mark | Sep 19, 2010 12:59:19 PM

  21. really, tyler? do you want to argue scalia's case on its merits. step-n-fetchit-thomas, is the me-too justice appointed by the repug prez bush, the former. his appointment was was a slap to the face of any person who held a regard for thurgood marshall. scalia (an italian) would not have a seat on the supreme court were it not for the founding fathers. he was considered a sub-human species by the anglo-status quo merely decades ago. and, now he is bringing to bear every last shred of his empty-headed catholicism to apply the (mostly) secular constitution to creationist america. why are you not ashamed of yourself? no, really?

    Posted by: nic | Sep 19, 2010 1:06:59 PM

  22. As an originalist, Scalia also believes the earth is flat, without question.

    It wasn't all that long ago, that the last thing you would see or hear, was a Justice of the Court give persoanl opinions about legal issues that would more than likely come before the Court. Hell, they never made public appearances at all!

    May his arteries clog faster than a closet republican politician calls an escort service!

    Posted by: John Simpson | Sep 19, 2010 1:15:07 PM

  23. Scalia is, first & foremost, a rightwing political hack. He'll dip into the past & "originalism" if it suits his needs.

    BUSH v. GORE resulted in the FL Supreme Court ruling being set aside. This from a judge who normally champions "States' Rights".

    Scalia will be known as the chief conspirator in the coup that installed GWBush as Prez (despite getting 500,000 fewer popular votes...I know, I know...that doesn't matter. But his rationalization for throwing the election was even lamer).

    Posted by: JONNY NYNY2FLFL | Sep 19, 2010 1:30:30 PM

  24. I'd be curious to ask the question of Scalia, "How does consensual homosexual conduct put in danger any family in this country? What real, verifiable harm does it cause any heterosexual family? Just because people say it does, doesn't make it true, does it?" And to compare our love, our lives, and our futures to non-consensual, immoral and other destructive behaviors is relativism, is it not? I thought Scalia was against relativism.

    Posted by: Keith | Sep 19, 2010 1:38:32 PM

  25. Justice Scalia is a Christian bigot. I wonder what he thinks about constitutionality of a potential law to imprison all fat people because of the "dangerous and destructive lifestyle" they lead. He would be the first one to go to jail.

    Posted by: TheSeer | Sep 19, 2010 1:40:34 PM

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