Scalia Says Court Invented the Gay Minority. Women, He’s on to You, Too.

What Women Really Think
Aug. 20 2013 1:44 PM

Scalia Says Court Invented the Gay Minority. Women, He’s on to You, Too.

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Scalia, a strict originalist, except when he's not

Photo by Bill Pugliano/Getty Images

Antonin Scalia, Supreme Court justice and abiding troll of the lecture circuit, chastised his colleagues on the bench on Monday for their willingness to “invent new minorities that get special protections.” Scalia’s swipe was almost certainly aimed at U.S. v. Windsor, the court’s recent decision to overturn the Defense of Marriage Act on the grounds that the law “violates basic due process and equal protection principles.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

It’s no surprise that Scalia would reject the notion that gay people deserve equal protection under the Constitution; he has, after all, compared gay sex to murder and decried the pernicious “homosexual agenda.” But by his own logic, there’s another group that Scalia would readily deny the 14th Amendment’s guarantee of “equal protection of the laws”: women.

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Because Scalia was appointed to the court well after it applied the 14th Amendment to gender, his views on sex discrimination have been relatively muted. The justice did have a chance to rage against modern equal protection jurisprudence in U.S. v. Virginia, which held that a public college, the Virginia Military Institute, must admit women instead of creating a separate but equal women’s college. (He was the lone dissenter.) Otherwise, though, constitutional protections for women are so well-settled that they have largely escaped Scalia’s burning ire.

Off the bench, however, Scalia is free to openly inveigh against any little thing that bugs him—and he’s occasionally set gender protections in his crosshairs. A few years ago, the justice stoked outrage when he claimed in an interview that the Constitution does not “prohibit ... discrimination on the basis of sex.” In true originalist fashion, Scalia stated that “nobody ever thought that that’s what [the 14th Amendment] meant. Nobody ever voted for that.”

If you’re a hardcore originalist—and you shouldn’t be—Scalia’s idea has a certain logic. The 14th Amendment, one of the so-called “Civil War amendments,” was ratified specifically to protect black men, especially newly freed slaves. The amendment may proclaim that no state may “deny to any person ... equal protection of the laws,” but by originalist reasoning, women aren’t really people. Only men, Scalia and his originalist cohort believe, are protected by the Constitution; any other group has to take their grievances to the ballot box (regardless of whether they can actually vote).

There is, however, one group to whom Scalia would grant equal protection: Republican voters. That, at least, was the underlying rationale of the court’s decision in Bush v. Gore, to which Scalia signed on. In that case, conservative justices effectively decided the 2000 presidential election for George W. Bush by 5–4 ruling that a statewide recount of votes in Florida would violate the equal protection clause. The court’s opinion found that because different counties used different standards to count ballots, a recount would violate the “equal dignity owed to each voter” in Florida.

Never mind that no court in the history of American jurisprudence had ever ruled that ballots must be counted uniformly or that a recount would actually improve the accuracy of the vote count—Scalia was happy to completely abandon originalism in order to hand the election to Bush. The court even tacitly acknowledged its specious, novel logic by holding that “our consideration is limited to the present circumstances.” In other words, voters only receive equal protection when it’s needed to elect a Republican.

Scalia signed onto this opinion in full and, unlike Sandra Day O’Connor, has refused to apologize for it. Does he truly believe, then, that the 14th Amendment was originally ratified to shield a Republican presidential candidate from a statewide recount that might deny him office? Of course not—and neither would he care if evidence emerged that the equal protection clause was designed to protect women or gays. Scalia’s originalism is little more than a mask for his own deeply backward views, to be selectively imposed when it fits his politics. The Supreme Court didn’t “invent new minorities” by granting equal protection to gays and women. But it sure did in Bush v. Gore.

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