The Corner

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.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

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