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.




#1 L.Long (Guest) on Monday September 20, 2010 at 9:40am

Great example of a political power pushing his religious views onto everyone else.  So what he basically said was that women, gays, & lesbians are not human since they do not come under the protection of the law or the constitution.
It would be good to see, if these guys where elected, how many women, gays, & lesbians would vote for them.

#2 Ophelia Benson (Guest) on Monday September 20, 2010 at 11:38am

It’s not true that no one thought the 14th amendment at least should be directed against sex discrimination too.

#3 Mark (Guest) on Tuesday September 21, 2010 at 6:19am

If the drafters of the Civil War Amendments wanted it to apply solely to discrimination based on race they would have written the 14th amendment as such.  The 14th amendment was spurred by the Civil War and the legacy of slavery left alive in the original drafting of the Constitution, but the language expressed the general precept of formal equality before the law. For my tastes, while I can appreciate Justice Scalia’s attempts to limit judicial discretion, there is nothing in the actual text of the 14th amendment to limit its application to any specific subset of Americans.

I’m not sure what analysis Justice Scalia would use in approachinga law that held only men can own property. Would he leave it in force?  Not applying the 14th amendment’s guaranty of equal protection to strike down such a law would seem perverse.

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