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:
“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.