This is why I can never get on board with judges like Scalia. Is he a smart guy? Of course. But the following? Not so much…
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?
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.
Here’s what the 14th Amendment says regarding equal protection…
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.
How can you read the above and not see that it was written broadly so it could be applied broadly? Of course gender isn’t referenced. But why has judge after judge after judge referenced this to strike down law after law after law that seeks to discriminate against nearly any person or group? The idea that we’d have to legislate sexual discrimination on a state by state basis is insane.
But here’s why I take issue with strict constitutionalism: it seems to be anything but. Scalia says above, “Nobody ever thought that that’s what it meant. Nobody ever voted for that.” Okay, fair enough. So how can Scalia square those statement with his use of the equal protection clause in Bush v. Gore where he argued that different standards of counting ballots violated the amendment and infringed Bush’s rights? And before you twist yourself into a pretzel trying to explain why it’s okay for that case and not discrimination cases…save your breath. Or, well, you can try, but you’re just proving my point…that we all interpret things differently and the overwhelming consensus is that the 14th amendment prohibits discrimination on the basis of who you are in a very broad sense.
Oh…and newsflash…the Constitution isn’t a perfect document. And guess what? The Founders knew that. That’s why they made sure it could be amended. That’s also why they established the judiciary…to sort through the subsequent questions that would arise.
Still, if you want more reasons why Scalia is just plain wrong, read what Jack Balkin has to say.