Justice Antonin Scalia

U.S. Supreme Court Justice Antonin Scalia says that the U.S. Constitution does not prohibit discrimination based on sex or sexual orientation.

The comment came during a recent interview he had at the University of California Hastings College of Law, an interview that was published on the website for California Lawyer, a journal publication.

Asked about the debate in 1868 when Congress was considering the 14th Amendment regarding equal protection – and how that applies today to sex discrimination and discrimination based on sexual orientation, he suggested it's error to apply that standard.

UC Hastings law professor Calvin Massey asked, "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?"

"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," Scalia said.

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"Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't," he said. "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," he said.

The comments in the interview, recorded some weeks ago but just posted recently, run contrary to a number of recent court rulings on highly controversial topics, including a ruling from a homosexual federal judge in California who recently said voters' definition there in their own state constitution of marriage as being between one man and one woman only was unconstitutional. That ruling remains on appeal.

The interview, of which a video has been posted online, ranged over a broad spectrum of topics for nearly 90 minutes.

According to the California Lawyer transcript, Scalia said he knows there still are people mad over the court's 2000 decision in Bush v. Gore that ended the Florida recount controversy in that year's president election, installing Bush in the White House.

"I've been impressed that even when we come out with opinions that are highly unpopular or even ... what should I say ... emotion raising, the people accept them, as they should. The one that comes most to mind is the election case of Bush v. Gore. Nobody on the court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn't important enough? And I think that the public ultimately realized that we had to take the case. ... I was very, very proud of the way the court's reputation survived that, even though there are a lot of people who are probably still mad about it."

He said that his perspective on the Constitution – that it continues to mean today what it meant when written and is not evolving – is the only logical position to take.

"In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad – such as due process of law, cruel and unusual punishments, equal protection of the laws – if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all," he said.

"If the cruel and unusual punishments clause simply means that today's society should not do anything that it considers cruel and unusual, it means nothing except, 'To thine own self be true,'" he said.

He said that perspective isn't perfect, but is provides the most solid footing for a system of laws.

"I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. ... We don't have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on," he said.

"All the most controversial stuff. ... I don't even have to read the briefs, for Pete's sake."

That's should be the focal point for some modern judges who want to cite court opinions from other nations, he said.

"What can France's modern attitude toward the French constitution have to say about what the framers of the American Constitution meant? … If you're an evolutionist, the world is your oyster," he said.

Scalia studied at Georgetown University and Harvard, and was in the U.S. Department of Justice in the 1970s. He was nominated by President Reagan to the U.S. Court of Appeals for the District of Columbia and was advanced to the Supreme Court in 1986.

It was Scalia who told one of the attorneys involved in the numerous challenges to Barack Obama's eligibility to be president that for a case to get before the high court, four votes are needed.

None of the eligibility challenges has yet reached the stage where the actual merits are discussed at the high court, although numerous cases have been presented for consideration. Attorneys believe Scalia's remarks meant that among the four justices typically voting along conservative lines, at least one has been unwilling to move into that area of argument.

In a blog on the Washington Post website, Emi Kolawole noted this interview was not the first time Scalia has moved into comments regarding the 14th Amendment.

He reported that it was in 1996 when Scalia dissented from an otherwise unanimous opinion ending the 157-year tradition of only male students at the Virginia Military Institute.

Kolawole noted Scalia explained then: "The tradition of having government funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law."