Is Justice Scalia a Constitutionally Incorrect Sexist?


Originally published on January 4, 2011.

Justice Antonin Scalia has angered feminists once again.  This time the justice declared in an interview that there are no prohibitions on sex discrimination in the Constitution.  This has feminists on the Left infuriated: Scalia’s words are sexist, chauvinistic, and unconstitutional!   But is the justice correct? Does the Constitution actually prohibit sexual discrimination? Is that what the Founders specified and intended?  Actually, no, the Founders never placed any anti-sexual discrimination or gender equality clauses into the Constitution;  Justice Scalia is correct.

As a traditional conservative feminist, I am against sexual discrimination toward men and women, gay or straight. I fully support women fighting in combat if they pass training and perfect much needed military skills and I don’t care if the best heart surgeon available is a cross-dressing Liza Minelli drag queen.  If one’s job skills are superb, that person deserves the job and best pay.

I do, however, believe in discriminating against pedophiles and rapists.  They are a threat to human life; therefore, they should have no other job than scrubbing prison floors for the rest of their inhuman lives.

Thus, as a true feminist, I reviewed the entire Scalia interview and found nothing sexist or discriminatory about it.

Scalia was asked by UC law professor Calvin Massey:

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?

Justice Scalia answered:

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 is absolutely right.