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. “Though, I must say the black family was intact throughout that entire period and continually making economic gains.”


    I think you should re-check your source on this. During the slave era black family structure was for the most part discouraged and destroyed. During Reconstructio and the Jim Crow era there were many other attacks made upon family
    structure, which incidentally also included the families of white soldiers killed in the war. As to the economic gains that was only true for a small percentage.

  2. Mike:

    Jim Crow was loathesome, though being from the north I didn’t really see segregated bathrooms, etc. Yet, at least some escaped and remained relatively free (whites). Though, I must say the black family was intact throughout that entire period and continually making economic gains.

    The disenfranchisement was deplorable and without excuse.

    As the government now has the abusive power the states once had no one, of any race, will escape the boot about to be placed on our necks (God forbid).

    I would like to see blacks be as concerned about freedom as they once were. They sought to be free and now they seem willing to be subjugated to a central government.

    They seem to have forgotten their dream. If they rekindled it, it would be the greatest chapter yet in black American history.

  3. I should clarify.

    I believe the 14th amendment was written to cover the equal protection of female slaves. As equal as it would have been for “free” women of that day.

    The 14th was written for slaves. This means it wasn’t written for women such as myself or homosexuals because we are not slaves. There is no one alive today for which the equal protection business is applicable.

    Unless we start up slavery again (which socialism is).

    Hey…that gives me an idea.

  4. “I feel the same about our imperial supreme court. By now it is obvious that Jefferson was right and John Marshall was wrong. To wit, we now have a police-state (greatly because of abusive powers of courts).”

    I do agree with this statement. However, given past comments in general I assume that we do have our differences regarding SCOTUS. Thes would include on my part that the most oppressive governmental forces in our nation have been at the State and local levels. Given that some SCOTUS decisions were needed to
    put and end to those non-constitutional practices. I cite Jim Crow as a particularly egregious instance.

  5. Elain: Yes, I realize that punishment can refer to rough handling. I even had it included in my post and took it out because I don’t believe that is what Stahl was refering to.

    But thanks.

  6. BBB:

    OOPS..I just read your apology. LOL…sorry.

    I guess we are on the same page.

  7. BBB

    Look. Ms. Stahl confused her herself (she is a nitwit). She started off talking about Abu Ghraib and then half way through her own darn sentence began talking about law enforcement officiers torturing people. Thus she was confusing cops with soldiers.

    Cops and soldiers do have different procedures in handling those they apprehend as one group is citizen arrestees and the other foreign prisoners of war.

    LOLOLOL. Yikes, what don’t YOU get about that?

    Torture is a crime. Punishment is lawful (it just cannot be cruel or unusual). She acts like they are both the exact same thing. The meanings of words seems to confuse her a great deal.

    Law enforcement officers are not soldiers. For example Lyndie English (a soldier at Abu Ghraib) wasn’t a law enforcement officer enforcing a court ordered punishment. This is my point. Stahl didn’t even know how to frame the question correctly. I get raked over the coals for my crazy posts here, this woman had a few good questions to ask and got herself all confused. And she gets paid for it! LOL

    She said: “If someone’s in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression cruel and unusual punishment, doesn’t that apply.” She is talking as if prisoners of war have trials (right in the midst of war and captivity) to determine their punishment (presumably it won’t be cruel or unusual)!

    Excuse me for laughing, but it really is amazing.

    Right at the beginning the judge says torture is illegal and he doesn’t like it.

    What is the problem with that?

    After that she spastically jumps to the subject of actions taken by cops presumably BEFORE a court makes a ruling (which cannot be punishment since a court hasn’t ordered it). It seems that you think that the illegal torture by a solider that Scalia (presumably) and I are talking about is the same as a legal sentence (punishment)received after a verdict is rendered.

    It’s not.

  8. Mike Spindell

    I’m with Thom Jefferson. He said “no matter how long the British oppressed the colonists, they would never acquire the right to oppress them by having done it repeatedly.”

    I feel the same about our imperial supreme court. By now it is obvious that Jefferson was right and John Marshall was wrong. To wit, we now have a police-state (greatly because of abusive powers of courts).

    It should be clear to all that we need to abandon the power grabbing policies Marshall established and return the court to its original place: that of interpreting the law instead of legislating.

    From what I can tell, Scalia ( abused the 14th in Bush v Gore. But any such abuse appears completely in keeping with all the previous abuses of the 14th by the judicial imperialists on the court.

    I oppose that too.

  9. Maybe he is shooting for a reality TV……then again Mike S., may be on to something….

  10. When I am the most serious, I use the most subtle, multi-layered humor, seriously.

    Y’all may have noticed that I respond, though not with chastisement in any usual way. I use words to share things I allow someone else may find of some value, I never know who or what such will be, nor do I make an effort that way.

    I welcome being chastised, it helps me to make better sense of words, and, at times my choice of words, such that they made proper sense to me, obviously meant nothing I ever had in mind.

    When folks do not fuss with me, after a while, I become concerned. I have to figure out if I am in a waking dream, or if my words were a disaster worse than I had imagined possible, as has happened, or, I may be mistaken about that.

    Perhaps because the way autism-insufficient people sometimes assemble sequences of words rubblescrubbles me, I try word sequences to find what may or may not work, as is being done here and now.

    If you see humor in my writing that I did not notice, it has to be there, and I overlooked it.

    When word patterns happen as happened with BIL a while ago, instead of using words of similar character, I haul out something so blatantly ridiculous in context that people may think (briefly?) I am serious in using, e.g. a 1836, high school natural philosophy book as an authoritative source, the double-entendre being that, when it was written, for its purpose it was about as authoritative as any such book.

    The triple-entendre touches upon my bioengineering research which hints to me that some of law precedent yet in use may be in the league of that natural philosophy textbook.

    Case in point? Antonin Scalia?

    Who is pounding on the door, shouting for me to come out with my hands held high?

    Why all the bright flashing lights surrounding the house?

    What lawyer would risk defending me?

  11. J. Brian Harris, Ph.D., P.E.: “‘Tain’t as sarcastic if it is identified as sarcastic; said sarcastically [sarcasm] [double negative?] [ ;-( ]?”

    I know. Nothing kills a joke or a bit of sly humor, mockery, satire, sarcasm, as having to telegraph it. Unfortunately, the color and inflection we give spoken words is not so easy to discern with the printed word.

    I read your postings with an eye toward your humorous flourishes. You have on occasion been so subtle with it as to bury it but I like easter egg hunts so… Maybe too, I see humor where none is intended. After complimenting someone on a long posting I though was a masterful bit of satire (on another weblog) I was chastised by the poster for denigrating his/her Very Serious Posting. LOL. I couldn’t help it if it worked better as satire; I was just acknowledging the fact 🙂

  12. I want to second Buckeye’s comment about Scalia and the Commerce Clause. These radical Justices are there for one reason and that is to turn the legal world back to the 50’s. The 1850’s!

  13. What they really want to do is nullify all the laws that have relied on the Commerce clause for authority. Thomas and Scalia are already there.

  14. Now there’s a guy who has a way with words and apparently knows Scalia personally, Bob.

  15. “As words are not the objects or actions they represent, the meaning is symbolic, but it is still meaning.” ~Buddha

    yes indeed! and they can be used as weapons or bandages or walls or foundations or steps….and it reflects on us how we use them. I don’t agree with Justice Scalia…but I am disturbed that a man in his position would say those words and be serious about it.

  16. Democrats, Women’s Rights Leaders Blast Scalia Comments On 14th Amendment

    WASHINGTON — Leaders of the key women’s-rights groups joined congressional Democrats at the Capitol Thursday to warn that Supreme Court Justice Antonin Scalia had issued “a wake-up call” when he said the U.S. Constitution does not protect women from discrimination on the basis of gender

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