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Scalia Publicly Rejects the Use of the 14th Amendment to Bar Discrimination Against Women and Gays

While the legal profession debates the propriety of his decision to participate in the educational sessions for conservative new members of Congress, Associate Justice Antonin Scalia is also causing a stir over his public statement that the 14th Amendment does not prohibit discrimination against women or gays.

Scalia’s statement came in an interview with California Lawyer magazine. Scalia stated “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.”

Once again, this statement is not a violation of judicial ethics but rather a violation of a core principle of judicial self-restraint. In the past, justices avoided public appearances beyond occasional law school commencements and ceremonial appearances. That was before the advent of the celebrity justice where members increasingly appear in high profile events. I take a highly conservative view of such appearances. I believe it undermines the integrity of the court for justices to be holding forth on their personal views in interviews and conferences. They are given one of nine unique positions that require a degree personal discipline in public appearance and, yes, insularity. As noted in this column, I admired John Paul Stevens for his practice of having his opinions speak for themselves. Scalia has helped inspire a new model of the celebrity justice that appears to appeal to many of his colleagues. These interviews and speeches tend to be self-aggrandizing exercises and not only do not do justice to the Court but to Scalia himself. He is certainly not alone in yielding to the temptation to appear in public. Both liberal and conservative justices have increasingly made controversial appearances.

Scalia’s views on gender discrimination are well-known. However, such arguments should be precedent not personality driven. Scalia is rightfully viewed as an intellectual leader of the conservative wing of the Court. If there is anyone who could allow his opinions to speak well for himself, it is Justice Scalia. He clearly enjoys exchanges with students and lawyers. He is also one of the most entertaining and dynamic members of the Court. I truly like that about him. However, this is a job that requires the small sacrifice in one’s public persona. Scalia’s legacy would be better served with less of the justice in the public arena.

Source: Politics Daily

Jonathan Turley

122 thoughts on “Scalia Publicly Rejects the Use of the 14th Amendment to Bar Discrimination Against Women and Gays”

  1. rafflaw,

    “Scalia stated that if the States want to discriminate against women, that is ok.”

    If they can establish a legitimate government interest for doing so, that statement would be correct. To say that is not would be to ignore precedent. Scalia didn’t say that the States can discriminate against women any time they want, for any reason they want.

    Let’s look at a simple case that would restrict the use of some public property. Men can’t enter a public restroom so identified, and women are restricted from entering the one designated for men. Is this, in the strictest sense, a discrimination on the basis of gender? Yes. Does the government have a legitimate interest in doing so? Yes again.

    In my previous post I identified Schlesinger v. Ballard.
    http://supreme.justia.com/us/419/498/case.html

    I think it would be a good opinion for you to read.

  2. raff:
    “Or is Scalia also suggesting that racial discrimation should be allowed if the States are ok with it?”

    Sounds that way to me.

  4. We don’t want the people to know our personal opinions about these matter, then the stupid peons below who we rule over with an iron fist might learn about our lies, deceits, and trickeriers and hold us accountable.

    That simply won’t do.

  5. BBB,
    Scalia stated that if the States want to discriminate against women, that is ok. Taking that logic a step further, Blouise or Swarthmore Mom could be prevented in their respective states from the ability to work in specific professions and Scalia would be ok with that. How does that make him technically correct. How can you possibly define “persons” as it was defined in the 1800’s today in 2011? If blacks are citizens under the 14th’s definition of persons, according to Scalia, why aren’t women? Or is Scalia also suggesting that racial discrimation should be allowed if the States are ok with it?

  6. Scalia and Christie(my state governor)have a lot in common.Arrogant, Could care less what you think about them,They can do no wrong etc,etc.

  7. Mike:

    Prove how the 14th bars discrimination against women.

    Oh wait. First prove the 14th was legally approved.

    LOL

  9. Like it or not, Justice Scalia, in this instance is correct when he said “the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t”.

    The Court has held on numerous occasions that laws that discriminate on sexual grounds are subject to higher scrutiny, but if they serve a legitimate government interest, they can be permitted.

    The gender preference in Schlesinger v. Ballard certainly served a legitimate government interest, and women were the beneficiary.

    I understand how Scalia’s comment can be seen as rash, but it is no doubt technically correct. If he were to have said that the Constitution prohibits discrimination in all cases, he would be going against many previous Court decisions.

    Maybe he made that statement just to see how it gets spun. 🙂

  10. rcampbell and Mike S. and Buddha are all correct. I’ve said this on an earlier thread, but Justice Scalia claims that the Constitution doesn’t protect women means that the Constitution does not protect more than one half of the country. I guess if you are a man, that isn’t a worrty. At least in Justice Scalia’s mind. Does Justice Scalia have daughters that don’t believe that a man is dominant over a woman as he does? This originalism notion didn’t get in his way when he declared corporations are people when it comes to election money. This originalism didn’t get in his way when Bush v Gore was decided. If the 14th Amendment doesn’t protect everyone, why should women be required to pay taxes?

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  13. Scalia is more jokester than jurist; more showman than scholar; and more iconoclast than intellectual. He likes himself way too much, and always enjoys looking for ways to see on display what he likes the most. He is a literalist with a logical veneer, and a detriment to the tradition of a court once valued for its emphasis on — and commitment to — the individual rights of every-day Americans. I call him the “anti-Chancellor” for his stubborn campaign for form over substance.

  14. Question: given that women could not vote when the Amendment was adopted, doesn’t his view make sense (with respect to women)?

  16. This man could be the worst SCOTUS judge in US history and Tootie’s approval of him only proves the point.

  17. Scalia is an affront to the very concepts of fairness and equality embodied in this country’s founding. Listening to his twisted world view over the years does provide a window on history though. It’s a little easier to see how judges over the centuries have used and misused their countries’ laws to enslave people, subvert justice and to justify all manner of atrocities. The thing that makes Scalia stand out is the enormity of his ego and incredible arrogance.

  19. Isn’t it better to know that a Justice is personally biased, than to not know it?

    I think knowing the reality of any situation is preferable to not knowing it; in particular in this case, Scalia’s revelation could inform a lawyer appearing before him to ensure his arguments would not fall upon deaf ears. Perhaps he could bolster his justifications from more angles, knowing how Scalia feels about the 14th Amendment.

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