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.
It's a convenient time for Scalia to get loose on the 14th Amendment, as the new, super-right-wing, “constitutionalist” Congress floods into Washington with the intent of revising the document our country was founded upon in their own image. In particular, right-wingers have a particular disdain for the landmark amendment, which did away with many racist and guarantees birthright citizenship -- last summer, Senators John Kyl and Lindsay Graham proposed we do away with it altogether, and the passion for repeal is already bleeding into super-conservative states like Arizona, Texas and Utah. In his passive, wishy-washy stance, Scalia is essentially deflecting interpreting the Constitution -- erm, his job -- back to Congress.
But there's legal precedent that says the 14th Amendment does protect women, along with people of color. The Huffington Post called National Women's Law Center founder Marcia Greenberger:
"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."
Emboldened by the incoming wave of Tea Partiers, clearly Scalia's using this opportunity to publicly open the door for regressive interpretations of the Constitution.
Scalia defers to the legislature regarding equal rights, sex discrimination, abortion, and all civil rights issues. But what he doesn't acknowledge is that after the legislature rules on these issues, where is the Supreme Court in determining the constitutionality of the laws. Is he really saying that there is no need for the Supreme Court to rule on the issue of civil rights. Is this just shocking or just ignorant?