Scalia: Constitution Doesn't Protect Women or Gays from Discrimination

U.S. Supreme Court Associate Justice Antonin Scalia speaks during debate at ACLU Membership Conference, Sunday Oct. 15, 2006 in Washington. AP

.S. Supreme Court Associate Justice Antonin Scalia speaks during debate at ACLU, Oct. 15, 2006 in Washington.
AP

Neither women nor gays are promised protection against discrimination under the Constitution, Supreme Court Justice Antonin Scalia said in an interview with the publication California Lawyer.

Scalia's remarks has spurred criticism from liberals and from some law scholars, though he has expressed this point of view before.

"You do not need the Constitution to reflect the wishes of the current society," Scalia said. "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."

Scalia was specifically referencing the 14th Amendment, which 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."

The justice argued that "the Constitution tells the current society that it cannot do [whatever] it wants to do... Now if you give to those many provisions of the Constitution that are necessarily broad--such as due process of law, cruel and unusual punishments, equal protection of the laws--if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all."

The Washington Post notes Scalia gave this analysis of the 14th Amendment back in September. Furthermore, his position on protection from discrimination on the basis of gender was exhibited in 1996, when he was the only justice to dissent from the Supreme Court decision to end the Virginia Military Institute's 157-year-old, state-supported tradition of only accepting male students.

Marcia Greenberger, founder and co-president of the National Women's Law Center, told the Huffington Post that Scalia's most recent remarks were "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."

Jack Balkin, a legal scholar at Yale Law School, argues that it's "not entirely true" that the 14th Amendment wasn't intended to prevent sex discrimination. The Amendment was intended to prevent discrimination in basic civil rights against single women, he argues.

"It does not simply ban discrimination based on race," Balkin writes. "The fact that the word race is not mentioned in the text (as it is in the Fifteenth Amendment) was quite deliberate."

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