Scalia: Women, Gays Have No Constitutional Protection Against Discrimination

Via Pam Spaulding comes this bit from a California Lawyer interview with Supreme Court Justice Antonin Scalia asserting that women and gay people don't have constitutional protection against discrimination.

Scalia In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

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. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. 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.

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?

I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. … We don't have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don't even have to read the briefs, for Pete's sake.

Said Marcia Greenberger, founder and co-president of the National Women's Law Center, in response:

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them. But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."


  1. says

    Observers speculate he’ll be on the court for up to 20 more years because, well, like they say, the good die young and weed is tough to get rid of in the garden of limbo.

  2. walter t boned says

    Hey Me = he has the money behind the Catholic Church making him and his circle very WEALTHY and PRIVILAGED (meaning they do not have to follow normal rules of experience or behavior) …. he CHOOSES to stay ignorant because it is PROFITABLE and feeds he ego need to feel superior.

  3. Rob says

    Judging from this interview and accompanying photo, it seems Justice Scalia has gone all “Jabba the Hutt” in both thought (picture him with a chain in his hand pulling Princess Leia Organa [or any scantily-clad female] close to his wickedly slimy tongue) and in appearance. Decisions matter and, in this case, the Hollywood actor-President’s decision to nominate Scalia to the SC and the Senate’s decision to approve him means we have a throwback to the 18th century when it comes to civil rights’ consideration for any group but WHITE MEN WITH MONEY AND OWNERSHIP INTERESTS!

  4. says

    mld: True!

    Next time someone tries to crow about Reagan being a great President, just remember Antonin Scalia and Reagan’s preferred choice, Robert Bork (which was shot down leading to the eventual confirmation of Anthony Kennedy).

    And for those who make a hobby of bitching about President Obama: Elena Kagan, Sonia Sotomayor.

  5. bruce says

    Scalia serves the Vatican before he serves the people of the USA. He’s a right-wing Catholic who hates Americans.

  6. ams says

    Favorite quote: “All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.” So much for impartial rulings!

  7. pete N sfo says

    “It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

    Well, at least he got something right.

    These right-wingers have no problem distorting whatever they need to in order to justify their own actions. For Scalia, these comments almost sound like compromise.

  8. jpeckjr says

    And, yet, in Romer v. Evans, the Supreme Court did find that the Equal Protection clause does apply in matters of sexual orientation. Let us remember that Justice Scalia’s views have not prevailed on this question in several cases. There are 8 other justices.

    The comment that troubles me most: “I don’t even have to read the briefs, for Pete’s sake.” Sir, it is your job to read the briefs and decide on the merits of the case. Having your mind made up before the briefs are submitted and the case is heard is irresponsible in a judge.

  9. says

    The men who wrote most of the Constitution also did not include airplanes, computers, televisions, etc., etc.- but that hasn’t stopped Scalia from ruling on interstate commerce, transportation, censorship, etc. He is an originalist only when it suits his straight, white, Catholic male interests.

  10. brenda says

    I know it’s wrong to post stuff that wishes harm or death on the president, but can you wish harm or death on a supreme court justice in a blog comment?

  11. BMF says

    @ David: your comments are out of order. You want to take issue with his position. Fine. But, that’s NO EXCUSE to make derogatory comments about his ethnicity.

  12. Jack M says

    His arrogance is incredible. He bends and twists the Constitution to justify his bigotry, and probably uses the Bible to those same ends.

  13. Gregoire says

    Interestingly, his closest friend on the court is Ruth Bader-Ginsberg. I wonder what she thinks of these remarks — as a justice and as a woman?

  14. DR says

    He’s correct, to a point.

    The plain text of the 14th Amendment does not prohibit discrimination on the basis of gender or sexual orientation. Historically speaking, the 14th Amendment was a response to laws being passed which would have created a new legal slave system in the South (as well as lynchings).

    Having said that, other Justices believe that that the Constitution is an evolving document which needs to be interpreted in the time in which we exist, not in the time in which it was written, so we have Equal Protection and Due Process Protections which have evolved over time.

    You may not like his rulings or legal analysis, but personal attacks are unnecessary and quite frankly, the man has forgotten more law and legal history than most of you will ever learn.

  15. TR says

    In his statement concerning the 14th amendment, Scalia’s bigotry is obvious.

    He sees women and gays as some sort of half-caste sub-human constitutionally unequal to himself.

    Were he not steeped in the patriarchal culture of male arrogance he would know that women and gays are not half people with partial franchise under the constitution.

    Were he not rendered sightless by the blinders of prejudice, he would understand that women and gays are first and foremost CITIZENS of the United States.

    It is as CITIZENS that their full right to equal protection under the law is secured, not as women and gays that their claim to full rights are sought or their status as CITIZEN hangs.

  16. Sam says

    If you’re an originalist who believes that what is written should be interpreted by what was intended by those who wrote it/passed it, and the question given to him clearly indicates those that wrote the 14th Amendment never intended it to be used beyond race, then it’s entirely logical and sensible for him to believe the 14th Amendment does not protect discrimination against gender and sexual orientation.

    I loathe him and I don’t disagree with this view, but it is hardly surprising. I mean this is like saying, the sky is blue. One need only read any decision he’s written on either of these issues. Scalia’s dissents in Romer and U.S. v. Virginia expresses his view that those cases were wrongly decided.

    You don’t have to like his thought process, or agree with it, but Scalia is hardly inconsistent in his views. There is almost no chance that women or gays were considered when the 14th Amendment was passed. Unlike him, however, I think the line of cases that developed Equal Protection and Due Process jurisprudence to include women and gays (to some degree less than race) is reasonable and under the principle of stare decisis, has come to mean that in 2011, the 14th Amendment applies to women to some degree and to gays in some lesser capacity. And in another 20 years will probably more fully encompass those two classifications.

    As for the comment regarding Romer v. Evans above, that isn’t exactly what the Court did. It said Amendment 2 to the Colorado Constitution was not rationally related to a legitimate governmental interest. It doesn’t indicate that in all cases involving sexual orientation, a law will be found unconstitutional. J. Kennedy made a concerted effort to limit Romer’s holding. Lawrence did far more to open up the doors to use the 14th Amendment to protect against discrimination for gays than Romer did. In any case, Scalia vigorously dissented in both of those cases. None of this is surprising.

    And just to note, he feels that way about things other than women and gays. We like to point to these to try to paint him as some hateful bigot, and maybe he is, but he’s consistent regarding the use of the 14th Amendment in other areas as well.

  17. Rich says

    David is offering incisive biting satire, as usual. My more polite version is: I wonder how he feels about the constitution and ethnic discrimination. He and esp. Alito traded on the immigrant’s kid experience, as i recall.

  18. jamal49 says

    @DR Scalia is not “right, to a point” unless you are referencing his politics. Scalia was not offering a judicial opinion based on all that “law and legal history” he obviously has forgotten. He was offering a clearly biased personal opinion based solely on personal politics. Not a good basis for any decision from a Supreme Court Justice.

    Scalia’s comments are unprecedented for a sitting Supreme Court Justice. Whatever personal opinions one might express about Justice Scalia, one must focus solely on what he has said and then point out the absolute and utter fallacy of his jurisprudential approach to Constitutional Law.

    To whit: that the Constitution is forever frozen in time. In other words, it means what is says and nothing more with the only way to rectify its lack of specifics for a more modern time is to legislate.

    To follow Scalia’s “logic” to its extreme (which is where Scalia surely feels most comfortable), we must therefore conclude that, other than the right to vote, American women have no other rights under the Constitution because the Constitution is not gender-neutral. All references to rights granted under the Constitution, save for the 19th Amendment, are for those of the male gender.

    This attitude flies in the face of 250+ years of Supreme Court rulings and precedent. Antonin Scalia’s pronouncements are so far outside the norms of Constitutional law as to make him a real and present danger to the social and political stability of the United States of America.

    “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,” says Justice Scalia.

    If it only was so easy as that. One shudders to think where American society would be if Scalia’s attitude prevailed over the length of our nation’s history.

    Perhaps this petty, mean-spirited and very, very sad excuse of a Supreme Court Justice (if not a man) should heed a part of the previous quote. Mr. Scalia, you have been there for far, far too long. It is time you resign and take your vile, poisonous Constitutional “knowledge” with you.

  19. Brad says

    If you go back to the 17th and 18th century American colonies you would find a lot of anti-Catholic feeling. As more and more Italian immigrants migrated to the US in the 1800’s there was a lot of anti-Italian sentiment. How original does he want us to get. In the world of the founding fathers he would not have been anywhere near the supreme court or in the government.
    This blowhard needs to recuse himself now when decisions concerning LGBT and women’s rights need to be made by the SCOTUS.

  20. Joey Y says

    He was completely right. If no other laws were around, and no case law as a guide, the implication is that, ALONE, the constitution didn’t delineate protections for gays or women, which could be used on either side. As much as I dislike him for some of his views, the logic and analysis is sound. It’s up to OTHER laws that come along to shape the interpretation of a document that is over 200 years old.

  21. Sam says

    The only people here who pretend to understand what he is saying and calling him a bigot are people who have never studied the law, read anything he’s written and probably don’t even understand how the Supreme Court interprets the 14th Amendment.

    I think there is a big difference between saying, that is not what the 14th Amendment does, and these people aren’t worthy of the protections it affords.

    And he has a point that if we want to change the way we are treated in this country, we need to start doing it legislatively. I think we have this idea of what the 14th Amendment means that any person who has actually studied it knows is really not the truth. And his beef is that it is because of these justices (he seems to really be going after Stevens with some of his commentary) who bend the meaning to say things beyond that has solidified this belief. He has a point. Unfortunately for him, it isn’t likely to change.

  22. anon says

    He views reflect flaws in the constitution itself. For one thing, it is too hard to amend, for another the ninth and tenth amendments are too weak. Several clauses are extremely vague, and there is too much reliance on old British common law, particularly in areas of criminal law. However, parliamentary systems with no fixed constitution do invite chaos and extremism as we’ve seen in Europe over the last 150 years. It was only after they lost their colonies and most of their armies after WWII that the place calmed down (toss in their welfare states if you like too as part of the defanging process). The rigidity of the US constitution lead to one big mix-up though: the civil war. Our system makes some political issues almost unresolvable.

  23. Sean says

    He is a literal constitutionalist and offers no personal opinions about women’s or lgbt rights in his statement other than to say that his literal interpretation does not support them. He goes on to say that congress can fix this via legislation. If the Equal Rights Amendment had passed back in the 80’s these issues would not exist in his mind.

  24. says

    Puchi soon as I laughed, looked at him interesting question: “million total, you loved her?”
    He sighed, put up a more comfortable position against the chair, “we who know what this old love? I just can fancy dishes she would do housework in my life nothing more.”
    I do not answer him, said: “Either you read this right, my salary according to your hair, in the nine districts to give you a separate office, and you do not need to see her, who do not know where you work . ”
    I shook my head.


  25. FunMe says

    SCALIA is so UN-AMERICAN and a leading activist judge whn has made a MOCKERY and joke of the US Supreme Court Can we impeach this clown?

  26. Good Luck says

    An intellectual for the 18th century! Those were the good days!

    A place for everybody and everybody in their place. I wonder if he expects Clarence Thomas to fetch things. Or have the female justices do the typing?

  27. Geo says

    I’m not sure how someone, who is so totally repulsive, can be in a position to pronounce that, “The People” does not include woman. Can it be said that woman can not hold office in Government because they are not protected by the US Constitution?! Get off your high horse and try to be a man without trying to put somebody else down to make yourself look like a superman. It won’t fly!