Supreme Court Justice Antonin Scalia said in a recently published interview that the equal protection clause of the 14th Amendment does not prohibit discrimination based on gender or sexual orientation.
“Certainly the Constitution does not require discrimination on the basis of sex,” Scalia told California Lawyer. “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.” (He voiced a similar opinion in a speech in September.)
Marcia Greenberger, founder and co-president of the National Women’s Law Center, told the Huffington Post’s Amanda Terkel that the comments are shocking. “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.”
The equal protection clause states: “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.”
The Supreme Court ruled unanimously in 1971 that the clause protected women from discrimination.