Scalia: Equal Protection for Ladies? Nobody Voted for That

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Here are a couple of quotes you may find interesting:

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.

Q:    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?

A:    Yes. . . . 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. . . . That's what democracy is all about.

One Vote for Discrimination? The first one you may recognize as the 14th Amendment to the U.S. Constitution. The second one is part of an interview with Antonin Scalia, who as you may recall is a justice of the U.S. Supreme Court, a group that does things like decide what the 14th Amendment means.

This statement by Justice Scalia, which appears in the new issue of California Lawyer magazine, has caused some controversy, especially among women and men who wish to continue their current relationships with women. If the 14th Amendment doesn't extend equal protection to women, then a state legislature could repeal laws against discrimination, or pass laws that discriminated, and women would be stuck with that. Because that's what democracy is all about, you see.

Only, what a constitution is all about is limiting the government and protecting certain rights, even if a majority of voters may not agree with those things right at the moment. As this article from the Supreme Court Historical Society notes, the main issue in 1868 was indeed race discrimination, and there has been a lot of disagreement over what level of scrutiny applies to laws that may discriminate based on other characteristics such as sex or gender; but I'm not sure that the Court has ever actually held it didn't apply to sex or gender at all. It has repeatedly held to the contrary.

Justice Scalia's stated position on this is especially odd given his well-known disdain for consulting legislative history if the words of a law are clear. The 14th Amendment says "any person." Last time I checked, and I do check, women are people, except for the few that turn out to be demons. And if the text of an amendment can only cover something that people were thinking about at the time, then I guess the First Amendment only applies to Poor Richard's Almanack? Nobody ever voted to have it cover the Internet, you know.

In the interview, Justice Scalia also wondered if people in California really use the F-word as much as they do on TV (we do), and ruled that New York pizza is "infinitely better" than the pizza in Washington or Chicago. Deep-dish pizza "is not pizza," he said. "I'm a traditionalist, what can I say?"