The news may not be shocking to originalist interpreters of the Constitution. But this morning, the left is up in arms over Supreme Court Justice Antonin Scalia's comments in a recent magazine interview that the 14th Amendment and the "Equal Protection" clause was not penned for the goal of preventing sex discrimination.
In the January 2011 edition of "California Lawyer," Scalia was asked:
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?
He responded by explaining that sexual discrimination was not the goal, but that doesn't mean that United States doesn't have the proper means to still prevent such discrimination:
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.
But while it seems Scalia is simply outlining the checks-and-balances system of the United States government, and explaining how democracy works, the left is making Scalia out to be a a sexist homophobe.
The Huffington Post covered the story by quoting the Equal Protection clause and then saying, "That would seem to include protection against exactly the kind of discrimination to which Scalia referred." It goes on to quote a womens' rights advocate calling Scalia's comments "shocking" and saying "there's nothing the court will do to protect women from government-sanctioned discrimination against them."
But absent from HuffPo's article is a focus on Scalia's comments that "certainly the Constitution does not require discrimination on the basis of sex." Scalia goes out of his way to say that just because "there's nothing in the Constitution about that ... doesn't mean you cannot prohibit it."
Scalia made similar comments at the University of California's Hastings College of the Law in September. "If the current society wants to outlaw discrimination by sex...you have legislatures," he said. And in 1996, he dissented in the Supreme Court decision that ended the 157-year tradition of all-male education at Virginia Military Institute. As in his magazine and UC-Hastings remarks, his dissent in that case, United States v. Virginia, pointed out that there is a normal democratic process for making laws:
...the tradition of having government funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law.