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.


  1. bobbyjoe says

    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.

  2. Brian in Texas says

    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.

  3. says

    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


  4. Mike says

    “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.

  5. Bart says

    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.

  6. nic says

    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.

  7. Kelly in Atlantic City says

    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.

  8. candideinnc says

    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.”

  9. Tone says

    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.

  10. RichardR says

    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.

  11. Brad says

    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.

  12. Tyler says

    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 1787…it 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.

  13. TANK says

    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.

  14. Mark says

    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.

  15. nic says

    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?

  16. says

    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!

  17. says

    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).

  18. Keith says

    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.

  19. TheSeer says

    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.

  20. Randy says

    Scalia has made it abundantly clear once again that he pre-judges cases by working backward from a decision toward the evidence and arguments.

    He is a disgrace to the legal profession.

  21. mad1026 says

    Agreed MSTROZFGKSLV! The intent of the Radical Right to install a theocratic form of government on the United States of America is illegal according to the Constitution. Sarah Palin, Sharron Angle and their ilk recommend “Second Amendment Remedies” for “activist judges.” Scalia is the No. 1 activist judge in the country. I’m just saying!

  22. Ryan says

    There are many ways to effectively deconstruct Scalia and reveal him to be a bigot. Most have already been mentioned above, the eternal debate over originalism vs pragmatism. his questionable choices of language in his written arguments. His evocation of his religious and personal beliefs at speaking appearances.

    There is no need to mock him for his religion or cultural background, there are plenty of catholics and italian americans who aren’t assclowns.

  23. BobN says

    “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”

    In other words, when it says “persons”, it doesn’t REALLY mean persons. It means only those individuals seen as equal persons in 1868. I.e. white, male landowners.

    So-called “originalists” say the 14th amendment was just about the end of slavery, that the word “persons” meant only to extend equal citizenship to black males. Despite the fact that the writers chose to use much broader language, they only meant a very narrow change.

    Now, it is true that this argument over meaning is very old. There have always been people who claimed it only meant black males. The problem is that that view was debunked only 30 years after ratification, when “persons” was interpreted to include Chinese Americans.

    Now, if “original understanding” is important, who is a better judge of the INTENT of the 14th amendment? People like Scalia, looking back hunting for prejudices from a distance of more than 200 years OR the justices of the 1890s, many of them colleages, friends, and associates of those in the Congress who ratitied the amendment?

    Why, Scalia, of course! At least that’s what Antonin thinks.

    He takes one of the most remarkable documents, remarkable achievements, of this civilization and burdens the words with the prejudices and ignorance of the mid-19th century. It’s a disgrace.

  24. Kayla says

    All of you idiots who hate Obama and plan on voting for his opponent in 2012, should also not plan on getting your equal rights anytime soon, in fact don’t expect to get equal rights in your lifetimes. Because if the next president is a Repub and he gets the opportunity, he’ll be adding Scalia clones to the court, but hey, it’s all about tax cuts right!?!?! Down with socialism, hail Beck!

  25. says

    I have no idea what this man is talking about, but, I do know that not very long ago in my family tree we were owned by others even though the constitution very clearly said “all men are created equal”. So, don’t give me any bullshit about what the constitution and the founding fathers meant. It is a living document that adapts and we have a country that does the same.

  26. matt says

    By this logic, the only guns protected by the 2nd amendment should be muskets. They are what existed when the Constitution originated. Since then, our understanding of science and tech has advanced, giving us new weapons, but it was not the intent of the Founders to protect them, and thus, they should not be protected.

    In the same way, our understanding of society has advanced, allowing us to realize there is little relevent difference socially between the races and the genders and even sexual orientations. As such, the protections offered by the Constitution now extend to all of them, not just the white Protestant males, whether the Founders thought so at the time or not.

  27. says

    What part of “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” doesn’t Scalia understand?

  28. Jamesstone says

    Yea then let’s go back to the past and take away women’s right to vote
    .And yea ..slavery is okay..sure
    I’d bet the farm this is an old closet case that never came out ..

  29. TANK says

    “Scalia is considered the Court’s leading proponent of ‘originalism’. This is a legal philosophy whereby the proponent attempts to locate the most dickish elements of the founding fathers’ political views, magnify them, and disingenuously use them as a pretext for perpetuating dickish views. In other words, the phrase, ‘I am an originalist’, is synonymous with ‘I am a racist, but I’m too much of a pussy to just come out and say it because I went to college’. It’s the legal philsophy the audience on Jerry Springer would have if they went to Harvard or Yale law schools.”

  30. jason says

    Scalia genuflects at the altar of the Vatican. He is not an American first and nor does he represent Americans.

    The Consitution also doesn’t stop discrimination against Italian Catholic dorks like Scalia. He needs to be impeached.

  31. Gavin says

    I also wish no ill on anyone.

    Still, I can’t help but recall the fabulous words of Patsy Stone, who once said:

    “Oh, just DIE already!”

    Equality is coming. Just need Scalia and his ilk of his generation to go away. Then the young perky Christine O’Donnells of the world will seem even sillier and shriller. Yes, it’s possible.

  32. nic says

    the doughy papist is a prime example of ideology trumping logic. i do not begrudge him his intelligence. he has that in spades. i begrudge him respect, though. in his tortuous struggle to reconcile a failed belief to the spirit of the law, he ties himself in torturous knots of angst and epic failure. this is why i say that his monstrous ass must reek of ravioli and desperation. his world is being dismantled brick by brick. i pity his poor wife and mistress.

  33. anon says

    As Dahlia Lithwick put it, Scalia’s judicial philosophy is “it sucks to be you”.

    The goal of originalists is to deny individual rights by first, limiting the application of the bill of rights to the states. That is, they want to return to the interpretation of the bill of rights as only a federal matter, such as existed prior to the 1920’s.

    Second, they want to limit what are called “alternative paths” to individual rights, such as the common law requirement that laws be neither arbitrary or capricious. While many moderate judges disdain alternative path arguments, originalists will not even give them a hearing.

    Further, while Scalia talks about legislation to promote rights, many states have laws that promote gay rights, such as CA did when its Supreme Court granted gay marriage in the first place (as did MA). It was only because of prop 8 that it became a federal matter because that was the only route available legally to overturn prop 8. But, it is unlikely that Congress would prevent states from enacting laws like prop 8 AND Scalia would call such laws unconstitutional via states rights. So, Scalia makes it more or less impossible to overturn local laws that restrict minority rights.

    Scalia, but his own theories, should be willing to overturn DOMA.

    Scalia has voted against his own judicial philosophy when it goes up against is personal philosophy, such as various federal drug law cases, federal minority religious rights cases and property rights cases. Scalia’s voting pattern is not so much originalist as it is traditionalist.

    “All men are created equal” is in the Declaration of Independence, not the constitution.

  34. nic says

    oh please, ANON, don’t go begarring the issue. the “declaration” informed the constitution: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

    more beautiful words were never before uttered in history. your time might be better spent picking the nits off of someone else’s head. uhmm, let’s see…. maybe sasquatch above?

  35. nic says

    the monsters on the bench are those that let ideology vanquish the written word. many recall justice sandy-day o’connor fondly, but her’s was the deciding vote that usurped the will of the people and diminished the office of the president. all of a sudden, the supremes became the dictators. i will never forgive that bitch.

  36. Catholic Scholar???? says

    Scalia is just a very public example that you can’t be both Catholic and intellectual simultaneously.

    He reminds me of the tortured rationalizations of “Catholic truths” when you start with your faith based conclusion and then tie yourself in knots trying to prove it is based on logic.

  37. TANK says

    Dude, the reality is that you can’t be any christian denomination and an intellectual anymore, as the the days of st. thomas have long since seen their sunset. Take all the greatest hits: Alvin Plantinga (calivnist), Peter van Inwagen (catholic, I think), the Adams twins (Robert Merrihew and his wife Marilyn McCord), William Lane Craig, and even DICK Swinburne…it’s all sillyness–practically none of their peers in the academy take religion as a viable worldview seriously. If they’re distinguished–and Dr. Adams is–it’s for reasons other than their religious yadda yadda (Dr. Adams’ leibniz scholarship is top notch! If you want the best book extant on leibniz’s philosophy, read merrihew’s Leibniz: determinist, theist, idealist…leibniz was well beyond his years, kept down by lesser mortals. Or, you can do something productive with your time, and avoid philosophy altogether…)

  38. FunMe says

    This UN-American douche bag is still alive?

    Someone feed him a BIG juicy dead animal steak for him to enjoy.

    He needs to stop taking up too much space on this planet.

  39. says

    Yeah, if we don’t get Obama elected , followed by eight years of Hillery, then we can expect more Scalia lap-dogs, like Thomas, to be appointed to a perpetual biased court.
    Originalism ? Are you serious ?

    The Founding Fathers would be appalled to find their thoughts on government frozen in time and not developed and evolved by subsequent generations. Jefferson would be the first to ask: what the fuck have you been doing ?
    And just as pertinent, Jefferson would ask: you still have that old right to bear arms clause ? Haven’t the British left ?
    Move on.

  40. anon says

    If you are wondering how “all men are created equal” informed the constitution, it was in the non-nobility clause where we outlaw an American aristocracy. Even if the DoI had very broad language, not all of it made it into the constitution. After all, ‘all men are created equal’ would on its face, ban slavery, which didn’t happen. It would also give just about everyone the right to vote, which didn’t happen, etc. You can also through in the reconstruction amendments too, though I was talking about the bill of rights originally.

  41. MikeMick says

    So by Fat Tony’s logic, the Declaration of Independence — the forerunner to the Constitution and a guiding principle — should read, “We hold these truths to be self evident. That all men are created equal, except for you fags.”

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