Scalia: Constitution Does Not Protect Women, Gays from Discrimination

September 20, 2010

During a 90-minute question-and-answer session at UC Hastings School of Law, Supreme Court Justice Antonin Scalia announced his view that the 14th Amendment's guarantee of equal protection under the law does not apply to women or gays and lesbians.  Scalia explained his views as follows:

If the current society wants to outlaw discrimination by sex, you have legislatures. . . Nobody thought it was directed against sex discrimination.

Scalia believes that discrimination on the basis of gender "shouldn't exist," but believes the notion that it is constitutionally forbidden is "a modern invention" and thus has no grounding in the constitution. 

Scalia's views on homosexuality are far less generous.  He was one of only three Justices to vote in Lawrence v. Texas in favor of allowing states to continue imposing criminal penalties against gays and lesbians.  In his dissenting opinion, Scalia compared such laws to statutes against incest, bestiality and prostitution, and further commented that some view bans on homosexual conduct as protections for themselves and their families against "a lifestyle that they believe to be immoral and destructive." (Bizarrely, he also warned that by striking down laws against homosexual conduct, the Supreme Court would make it impossible for states to proscribe -- among other things -- masturbation.)

Scalia offered his comments at a celebration marking the 24th anniversary of the unanimous Senate vote confirming him as a Justice, following his nomination by Ronald Reagan.