Justice Antonin Scalia created a firestorm last winter when he opined that the 14th Amendment does not protect women against discrimination on the basis of sex. The truth is that this view has been, until recently at least, a bedrock conviction of conservative originalists. In that sense then, the bigger news came at a Senate Judiciary Committee hearing in October when, confronted on his remarks by Sen. Dianne Feinstein, Scalia backpedaled and suggested that the Equal Protection Clause did indeed protect women from state-sponsored discrimination on the basis of sex. For a Justice famous for his blunt and unchanging conservative views, Scalia’s fancy footwork was fascinating, and telling.
In fact, Scalia’s backpedaling is part of a significant reassessment of the meaning of the Equal Protection Clause that is transforming the debate over the Constitution. This debate, which is happening in conservative legal and academic circles, could have a dramatic impact on the outcome of critical cases—including Perry v. Brown, the challenge to California’s Proposition 8 and the denial of marriage equality to gay men and lesbians. After a long detour to the California Supreme Court on the question of whether the case can even go forward, Perry is heating up, with the Ninth Circuit hearing oral argument last week on two separate issues, and a decision expected on the merits in the months to come.
The fact that Ted Olson, a stalwart conservative who served as solicitor general for President George W. Bush, is leading the charge for marriage equality in the Perry case speaks to the seriousness of this conservative reassessment of the meaning of equal protection. But it is perhaps even more significant that Northwestern law professor Steven Calabresi, co-founder and current board chair of the Federalist Society, and co-author Julia T. Rickert recently published a 100-page law journal article that patiently and thoroughly lays out the originalist defense for the protection of women from sex discrimination. Applying Justice Scalia’s own originalist methodology, Calabresi shows why his former boss was right to walk back his assertion about the Constitution’s protection of equality. If Scalia’s concession that the 14th Amendment makes space for women was a watershed, Calabresi’s new paper is a roadmap.
What conservatives such as Olson and Calabresi have slowly been recognizing is that it is inappropriate to look to the intentions of the Framers of the 14th Amendment to trump the actual text they wrote, the cardinal sin in constitutional interpretation if ever there were one. It is the text that guides and binds judges, and the text of Section 1 of the 14th Amendment broadly supports protection of fundamental rights and equality under the law for all persons, not just former slaves. In ratifying the 14th Amendment, the American people redeemed the Constitution from the sin of slavery by adding to our foundational charter a universal guarantee of equality, covering every person in the United States. As Calabresi emphasizes, under the original meaning of that text, all systems of caste and subordination violate the 14th Amendment.
History is supposed to be Justice Scalia’s strong suit, but, as Calabresi shows, Scalia’s argument for reading women out of the Constitution’s protection of equality relies on a particularly crabbed look at our constitutional history. Scalia relies chiefly on the fact that the Framers of the 14th Amendment dismissed women’s claims for equality. Indeed, in Section 2 of the amendment the Framers sanctioned discrimination against women in voting. By penalizing states only for denying the right to vote to “male” citizens, the Framers at least implicitly left states free to exclude women from the franchise. But Scalia’s argument ignores the later amendments that extended the text’s command of equality, most important the 19th Amendment, which guaranteed women the right to vote and repealed the 14th Amendment’s stamp of approval for discrimination on the basis of sex. As Calabresi shows, in ratifying the 19th Amendment, the American people erased the one textual limit on the 14th Amendment’s otherwise sweeping protection of equality. In light of the 19th Amendment, there is no good or principled reason for denying protection to women against discrimination under the Equal Protection Clause, and to read the 14th Amendment as if the subsequent texts don’t yet exist is to privilege form over fact.
Calabresi thus convincingly demonstrates that the full sweep of our constitutional history— – the principle stated in the Declaration of Independence, perfected in the text of the Equal Protection Clause, and then further illuminated in the 19th and other amendments—supports a broad reading of the Constitution’s command of equality.
Calebresi’s account of the Constitution’s protection of women drew significant support last month from Justice Ruth Bader Ginsburg—often called the “Thurgood Marshall of the women’s rights movement.” At an event celebrating the 40th anniversary of the Supreme Court’s decision in Reed v. Reed, the first case in which the court applied the Equal Protection Clause to prohibit discrimination against women, Ginsburg approvingly cited Calebresi’s account of the clause, declaring that “I count myself as an originalist too.”
Given case law that has protected women under the Equal Protection Clause for the last 40 years, this emerging consensus on the text’s command of constitutional equality for all persons may not seem that transformational, but it is, for at least two reasons. First, the same logic that leads conservative thinkers to Reed inevitably leads to Perry as well. Calabresi does not admit this, but it’s where his argument goes, as Ted Olson clearly understands. Calabresi’s (and Ginsburg’s) central argument is that the 14th Amendment prohibits states from enacting legislation treating any persons as a subordinate caste. That’s precisely the argument Ted Olson has advanced and the district court accepted in Perry: States violate the Equal Protection Clause when they treat gay men and lesbians as second-class persons, unworthy of having their loving relationships recognized by the law. Calabresi’s account, unwittingly perhaps, make a powerful case for marriage equality as a matter of fundamental constitutional principle.
Second, the emerging consensus and embrace of originalism by Justice Ginsburg reflects just how rapidly the debate over constitutional interpretation is shifting. Her willingness to acknowledge that fidelity to constitutional text leads to greater equality is a signal that originalism isn’t the sole province of conservatives anymore. The inevitable result: One by one, the shibboleths of the right about the “original” meaning of the Constitution are being discredited, while progressives increasingly embrace the Constitution’s text and history. This methodological meeting of the minds is what allows liberal/conservative partnerships possible, such as the pairing of Ted Olson with the far more liberal David Boies on the Perry litigation team.
Justice Ginsburg’s recent remarks show just how powerful arguments for equality can be when rooted in the text and history of the Constitution. As Justice Ginsburg explained in her remarks, the Constitution’s history reflects a 220-year quest for “a more perfect union” guided by the principles of the declaration. “Equality was the motivating idea,” but it took the Civil War and the work of successive generations of Americans fighting for and obtaining a long series of amendments that ended slavery, guaranteed equality under the law for all persons, and ended the wholesale exclusion of black people, women, and young adults from the polls.
The story that Justice Ginsburg tells is one of constitutional progress, but, as Ted Olson and Steve Calabresi remind us, equality itself is neither a progressive nor a conservative idea: It is an American idea. It’s been a fundamental part of the American canon since Thomas Jefferson wrote the declaration and a critical part of our Constitution since Reconstruction. It’s time once again, in cases like Perry and in the public debate over marriage equality, for the nation to meet Martin Luther King Jr.’s challenge “to rise up and live out the true meaning of its creed.”