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. Tootie Re Jan 09 at 4:24
    One of the first uses of the 14th Amendment was the “slaughterhouse case”.
    No one said at the time that the 14th Amendment did not apply because of the race of the butchers (white). But this was a crummy case, and a better one was of Chinese laundrymen in San Francisco, who claimed equal protection of the laws, and prevailed.

  2. Regarding Leslie Stahl and torture:
    Since rights listed in the Bill of Rights are examples rather than exhaustive, * I think it unlikely that founders thought torture to be unconstitutional if used on criminals, but fine otherwise.
    * Secondly, if torture cannot be punishment, then it cannot be retribution.
    * Thirdly, are foreigners protected by our constitution? As a practical matter, the Bill of Rights helps with counter insurgency.

Comments are closed.