SCALIA AND CONSTITUTIONAL SAFEGUARDS AGAINST DISCRIMINATION…. The equal protection clause of the 14th Amendment states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”
Keep that in mind when you read this exchange between Supreme Court Justice Antonin Scalia and a magazine called California Lawyer on the issue of discrimination.
Q: 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?
Scalia: 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.
Given what we know about Scalia and his worldview, this doesn’t come as a surprise. But that hardly makes it any less offensive.
Amanda Terkel spoke with Marcia Greenberger, founder and co-president of the National Women’s Law Center, who called Scalia’s comments “shocking” and “said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.” Greenberger added “that under Scalia’s doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.”
It’s hard to interpret Scalia’s comments any other way.
As for the high court justice’s concerns about what people “thought” and “voted for” when it comes to what the 14th Amendment “meant,” Jack Balkin explains that Scalia’s mistaken about this, too, and “needs to read a bit more history.’
Just as an aside, I’d also love to hear more from Justices Ginsburg, Sotomayor, and Kagan about whether their colleague’s perspective has merit.