An interviewer for the magazine California Lawyer asked Scalia, "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?" His response:
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.
Scalia's not necessarily saying women or LGBT Americans shouldn't receive equal protection under US law — what he is saying is that that said protection isn't guaranteed by the Constitution. But as Marcia Greenberger, co-president of the National Women's Law Center, tells the Huffington Post, that's still "a pretty shocking position to take in 2011." She adds, "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."
Scalia, of course, is a famous Constitutional originalist, a position he explains in the interview thus:
In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. [...] Now if you give to those many provisions of the Constitution that are necessarily broad — such as due process of law, cruel and unusual punishments, equal protection of the laws — if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today's society should not do anything that it considers cruel and unusual, it means nothing except, "To thine own self be true."
To many, that last part may not sound all that bad — figuring out the original intent of the framers is no simple proposition, and some argue that they actually meant the Constitution to be an evolving document. Scalia, however, isn't buying it — he says, "We don't have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. ... I don't even have to read the briefs, for Pete's sake." The implication is that he doesn't read the briefs because he knows the law so well already, but it's worth noting here one of the pitfalls of originalism: the framers are long dead, and any statement about what they really intended is itself an interpretation. But it's nice that Scalia's so sure of himself, especially where people's human rights are involved.
Scalia: Women Don't Have Constitutional Protection Against Discrimination [Huffington Post]
The Originalist [California Lawyer]