Does the Constitution Protect Against Sex Discrimination?

Supreme Court Justice Antonin Scalia recently gave an interview to the California Lawyer where he said that the Constitution does not prohibit sex discrimination against women and gays. That’s up to the legislatures, he said.

CL: 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? 

AS: 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.

The question of whether the Constitution protects against sex discrimination is the hardest one for those truly committed to following the original understanding of the Constitution.

Justice Scalia is certainly right that the framers of the Fourteenth Amendment did not contemplate that its protections would require rights for women or gays.  At some level, even the Supreme Court recognizes that these rights are not in the text–it says that discrimination against gays fails to have any rational basis, which is the test applied to all laws, and it does not afford women the same formal protections as racial minorities.  The ban on gender discrimination, created by the Court in the late 1960s and early 1970s, with no textual basis in the Constitution, has become such a part of the fabric of the law and the broader culture that it is impossible to imagine precedent returning to the old days.

But Scalia’s point, and the point of originalism, is not whether the right in question is good or bad, but which institution of government should make the decision.  If you believe, as I do, that discrimination based on sexual orientation is not prohibited by the Constitution, that does not end the matter.  The Constitution simply moves the issue to the political branches of the federal government and the states. The President and Congress can ban such discrimination by the federal government–as it recently did with the repeal of don’t ask, don’t tell–and the states can make up their own minds.  

The nation, I think, will have gay marriage in most states in the next few years, even if it’s not imposed on the country by a few federal judges.  I think that the eventual settlement of these contentious issues will be on far more secure ground if it occurs through the normal political process rather than by judicial fiat. Witness the way that abortion continues to tear up our politics and our courts.

  1. liberal jim

    I would not make a good lawyer for I reason that since the 19th amendment came 50+ years  after the 14th arguing that the 14th somehow prohibited sexual discrimination would be ludicrous.  I also realize using this type of logic would also limit the amount of billable hours and in the end billable hours is what the present day law profession is all about.  The percentage of lawyers in Congress may go a long way in explaining the current state of affairs.

  2. Charles Gordon

    For their own electoral survival, delegating their power to the judiciary appeals to most legislators.

    When votes are cast on Election Day, candidates want to collect them from all sides of the issues.

    Through equivocation, by voting “present” when it’s allowed, their favorite strategy consists of serving us cake while staying out of the kitchen, knowing the “superannuated judges” will take the heat but never get burned because the cover of their black aprons lasts life-long.

    (McCain-Feingold, is but one of the notoriously transparent examples of a bill POTUS 43 signed into law with the “understanding” the guardians with judicial authority would most certainly strike it down).

    Judges and Justices have seized more political power because our Legislators have willingly thrust it upon them.

  3. Pilgrim

    Justice Scalia can be both absolutely right on the Constitution and wrong to try to conduct constitutional discussions in even specialized media.  I was infuriated to watch Ed Shultz (MSNBC) and Joan Walsh (Salon) reduce this interview to demonizing sound-bites and quarter-truths.

    As small as the MSNBC and Salon audience might be, it is still far greater than the California Lawyer (and Ricochet, for now).  I believe that Justice Scalia should limit himself to speaking through his written opinions and in more closed forums e.g. Federalist Society, law schools, and bar associations speeches and let others carry the argument in a way that is less politicising of the SC.

  4. David Limbaugh
    C
    liberal jim: 

    Apart from your slam on lawyers, which I will not adopt except for the trial bar (LOL), I think you make a good point. In fact, the US Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874) upheld a Missouri constitutional and statutory provision committing the voting franchise to men alone and expressly dealing with the issue of whether the 14th Amendment would bear on that issue. Although it decided the case on the basis of the privileges and immunities clause and not the due process clause, the effect is the same. If anything in the 14th prohibited the state practice the Court would have so held. 

    Also, it’s interesting to read the Court’s acknowledgment of its limitations, wholly validating the Scalia and Yoo position. The language is so instructive that I’m going to post the entire last two paragraphs of the Court’s opinion in a follow up comment because they won’t quite fit into this one, but please read them to glean a flavor of the Court’s proper respect for the limitation of its own authority, a respect only shared by originalists today, imo.

  5. David Limbaugh
    C

    Ok, Liberal James, and others interested, here are the last two paragraphs in the Court’s opinion:

    We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power, to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a State to withhold.

    Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we

    AFFIRM THE JUDGMENT.

  6. KC Mulville

    The originalist looks at the Constitution and sees that it doesn’t specifically protect women’s equality. That’s because there’s nowhere in the text that says so. 

    The interpretationist sees the Constitution as having an open-ended warrant to protect civil rights, of which women’s equality is one. That open-ended warrant comes from texts like the “promote the general welfare” phrase, or the substantive due process, or other such similar texts that purport to make the Constitution as the guarantee of civil rights protection. The moment something is seen as a basic civil right, the interpretationist believes that the Constitution automatically covers it.

    The conflict is about whether the texts in those clauses gives government an open-ended warrant. I’d argue that authority of the Constitution rests on the consent of the people, therefore it follows that the content can only be interpreted like an ordinary contract: what did the contractors consent to? No one believes that the framers intended government to assume unlimited power in its quest to promote the general welfare. It’s illogical (and dishonest) to interpret those clauses as if they did. 

  7. Trace

    I agree with Pilgrim about the appropriateness of sitting Justices granting interviews and effectively becoming involved in the political fray. But I just have to say how refreshing are Scalia’s self-deprecating comments about the court. I cannot even imagine Nancy Pelosi or Harry Reid have even half that much perspective about their own importance and role in the process.

  8. liberal jim

    David : The point I was making was about lawyers.   The fact that there was a decision between 1868 and 1920 affirming that states had a right to bar women from voting is of no importance to me.   The fact that lawyers are discussing if the 14th amendment barred sex discrimination 90 years after the passage of the 19th amendment   says nothing about the constitution and everything about lawyers.   I am of the opinion that the government has become a government designed by lawyers for lawyers. That and not the political malarkey is the crux of our problem.  The bigger government becomes the more necessary lawyers become. It is not surprising a JD such as you would have difficulty coming to grips with this.

  9. dittoheadadt

    I think, to be precise, it should be noted that Justice Scalia did not actually say that the Constitution does not prohibit discrimination against women and gays.  His comments were broader than that.

    He said more generally that it does not prohibit discrimination based on sex or sexual orientation, period.  It was the headline writers and dopes like Schultz who deliberately misreported the thrust of the Justice’s point.

    His comments are equally applicable to men and to straights and to others against whom sex or sexual orientation discrimination is possible.

  10. John Yoo
    C
    Pilgrim: Justice Scalia can be both absolutely right on the Constitution and wrong to try to conduct constitutional discussions in even specialized media…. I believe that Justice Scalia should limit himself to speaking through his written opinions and in more closed forums e.g. Federalist Society, law schools, and bar associations speeches and let others carry the argument in a way that is less politicising of the SC. · Jan 5 at 8:29am

    The Court has become the subject of politics, because it is inserting itself into divisive social issues at the expense of the normal democratic process.  If the Justices are deciding our national policies on abortion, race, religion, terrorism, and on and on, I think it only to the better that we learn how they think.

    As for Justice Scalia in particular, the Court naturally has emerged as a target of both political parties — witness Obama’s attack on the Justices, to their faces, at last year’s State of the Union address.  Academics, the bar, and the press will defend the liberal Justices, leaving the conservative Justices to defend themselves.  

  11. AmishDude

     I think a sine qua non of this discussion is the recent ruling on the Alaska election.  It is perfect.

    The written law said that the write-in name must be “as it appears” in the registration of write-in candidates.  Anyone with an IQ above 80 realized that that meant correct spelling.  Certainly some accommodation had to be done vis-a-vis handwriting, but there is no doubt that “as it appears” leaves any room for misspelling.

    The Alaska Supreme Court found that…inconvenient.  They cited high-sounding concepts like the principle of disenfranchisement and other things, but they didn’t cite the law and they didn’t cite anything constitutionally concrete.

    They learn these concepts and principles in law school and forget that the law is binding.  The law is the law and it might not be nice and it might not make sense at times, but judges’ hands should be tied.

  12. AmishDude

    Scalia’s basic point is that “good” is not synonymous with constitutionally required nor is “bad” synonymous with constitutionally prohibited.

    Scalia has, in the past, taken liberal jim’s (and my) side on this.  He lamented how talented and intelligent people are going into the law.  He said they should be doing something productive like designing cars.

    If you look at it, the legal profession is the epitome of rent-seeking.  A lawyer’s job isn’t to produce a good or a service people voluntarily choose.  A lawyer is either used to get money from another by force, protect from that action or deal with the government.  The only reason a lawyer is necessary is because of the barrier to entry of the profession and the expertise required to deal with the web of regulations created by lawyer-legislators.

    Consider this: Who are the highest-paid professors on campus?

    With some singular exceptions, it is law professors.  It says much, and nothing good, about America that this is the case — it isn’t the case overseas.

    Of course lawyers are necessary, but it’s singularly damaging when the legal profession forms an oligarchy.

  13. Umbra Fractus
    liberal jim: The fact that lawyers are discussing if the 14th amendment barred sex discrimination 90 years after the passage of the 19th amendment   says nothing about the constitution and everything about lawyers.

    It’s an issue of long term strategy. For progressive lawyers to admit that it is the 19th and not the 14th amendment that grants protection to women is to concede the conservative argument that the 14th amendment is not open ended, and that special protection needs to be made explicit, thereby implicitly conceding that sexual orientation has no constitutional protection.

  14. Kenneth

    “The nation, I think, will have gay marriage in most states in the next few years, even if it’s not imposed on the country by a few federal judges.  I think that the eventual settlement of these contentious issues will be on far more secure ground if it occurs through the normal political process rather than by judicial fiat. Witness the way that abortion continues to tear up our politics and our courts.”

    This was precisely my point about repeal of Don’t Ask Don’t Tell.  It was clear the courts were going to strike it down.  Better that our military folks accept the change as the will of the people, expressed through the legislature, than that they feel it had been forced upon them by judicial fiat.