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, 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.
If I understand the good Justice, taking into consideration his opinion in the recent Citizens United case, corporations have constitutional rights but women and other minorities are free game for discrimination, at least as far as the 14th Amendment goes. Do you find it astounding that a jurist sitting on the Nation’s Court of Last Resort thinks that AT&T or Halliburton or BP has more rights than your mom does or your sister? I do.
We all need to think very seriously about Justice Scalia’s comments. Think about them in the context of this quote which I am re-printing from an excellent article in U.S. News’ Politics blog:
“…laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
- Justice Scalia’s accidental argument for equal rights (dailykos.com)
- Supreme Court’s Scalia Says Discrimination Is Constitutional (usnews.com)
- Justice Scalia’s Warped Idea of Personhood: Not Women, But Corporations? (crooksandliars.com)