Tuesday, January 4, 2011

Scalia on Discrimination

Supreme Court Justice Antonin Scalia doesn’t think the Constitution protects women — or anyone — against discrimination.

In a newly published interview in the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn’t itself outlaw that behavior:

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.

The 14th Amendment says, in part, “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.” Okay, I’m not a lawyer, but it seems to me that the Constitution is pretty clear in prohibiting states from passing any law that discriminates against citizens or persons. Maybe when they covered that part in law school, Mr. Scalia was out that day.

It’s ironic that in the 1970’s when the battle over the Equal Rights Amendment was being waged, the conservatives and the strict constructionists of the Constitution said that there was no need to add the amendment guaranteeing equal rights based on sex because it was already in there in the 14th Amendment. Now Mr. Scalia seems to be tacitly making the case for the ERA.

Or perhaps Mr. Scalia doesn’t think that women or gays and lesbians are citizens or persons. That’s a whole other matter.