Antonin Scalia | Discrimination | News | Supreme Court

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."

Feed This post's comment feed


  1. 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.

    Posted by: Joey Y | Jan 4, 2011 12:18:07 PM

  2. 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.

    Posted by: Sam | Jan 4, 2011 12:41:51 PM

  3. 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.

    Posted by: anon | Jan 4, 2011 2:12:08 PM

  4. 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.

    Posted by: Sean | Jan 4, 2011 8:06:13 PM

  5. On the bright side, the second amendment only protects the right to bear muskets and sabers.

    Posted by: JJ | Jan 4, 2011 9:01:51 PM

  6. 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.


    Posted by: gucci bags | Jan 4, 2011 9:37:45 PM

  7. Vote Republican and THIS IS WHAT YOU GET.

    Posted by: Brian B. | Jan 4, 2011 9:53:56 PM

  8. This man should be impeached.

    Posted by: Randy | Jan 4, 2011 11:42:01 PM

  9. 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?

    Posted by: FunMe | Jan 5, 2011 1:19:36 AM

  10. 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?

    Posted by: Good Luck | Jan 5, 2011 8:47:30 AM

  11. 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!

    Posted by: Geo | Jan 29, 2012 3:41:03 PM

  12. « 1 2

Post a comment


« «Watch: Parker and Spitzer Discuss Raunchy Navy Video with Former USS Cole Commander Kirk Lippold« «