At a recent lecture at the University of California Hastings College of Law, Supreme Court Justice Antonin Scalia told the audience that the U.S. Constitution does not prohibit sex discrimination or discrimination based on sexual orientation. While this statement coming from the Court’s current longest-serving justice is not exactly ground-breaking, it does serve as an important reminder about the Court’s bitter divide on the issue of the scope of the 14th Amendment.
Since the early 1970′s the Supreme Court has consistently ruled that the 14th Amendment’s guarantee of equal protection of the laws applied to sex discrimination, and that laws that discriminated on the basis of gender needed a strong justification. This is not the same standard used when dealing with sexual orientation discrimination, and the differing levels of scrutiny reflects a judicial understanding that not all discrimination fits under the umbrella of the 14th Amendment.
But for Justice Scalia, this just isn’t good enough. If society wants to ban gender discrimination or sexual orientation discrimination they can, through the legislative process. The idea though that those forms of discrimination are constitutionally prohibited he called a “modern invention.”
Scalia’s lecture was in celebration of the 24th anniversary of his unanimous Senate confirmation after his appointment by President Ronald Reagan.
photo courtesy of stephen.masker via Flickr