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Written by Jeff Katz |
Tuesday, 04 January 2011
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| Tags: antonin scalia, california lawyer, marriage equality, 14th amendment, supreme court |
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Curious as to how the Supreme Court justices might look at a future marriage equality case? Marking his 24th year on the big bench, Justice Antonin Scalia gave an interview to California Lawyer where he was asked about equal protections.
Some media outlets are jumping all over him and reading his response with a homophobic lens, but we want to know what do you, our brilliant Instincters, make of his answer?
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.
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