While I'm going to assume most readers of this blog probably aren't huge fans of Supreme Court Justice Antonin Scalia, it's still somehow shocking to see him say something so blatantly yucky. In an interview with California Lawyer, Scalia insisted that the Equal Protection Clause of the 14th Amendment doesn't apply to women and gays. Not that he thinks we should be discriminating against them, or anything. Just that there's nothing to stop you if you, you know, wanted to:
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. 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.
Now, I'm no lawyer. I didn't even take a Government class in college. I'm probably better equipped to comment on interpretations of the law in ancient Sparta. (The interpretation there would almost certainly be "stab someone and then have sex with a prostitute.") But the Equal Protection Clause seems a bit more inclusive than that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Of course, I can understand his mistake: why would he include women and gays in his definition of "persons" when he clearly doesn't think very much of them?