Scalia: gays and women not included in “any person”

Timothy Kincaid

September 20th, 2010

Supreme Court Justice Antonin Scalia believes that women and gay people are not protected by the constitution from state mandated and enforced discrimination. (SF Chronicle)

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

“If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

Scalia, a proponent of “originalism” believes that it doesn’t matter what the words of the Constitution say or even what a logical and consistent application would yield. Rather, it is what was in the minds of the white men who drafted that wording which matters.

And Scalia believes that when they wrote

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

they clearly did not intend for “any person” to include women or gay persons. So I guess we know how he’ll be voting in the upcoming cases which deal with the equality of gay citizens.

Since the “original intent” is required for Scalia to find that the US Constitution protects women and gay people, perhaps we should provide him with some original intent. Maybe Scalia would find it more convincing if Congress and the States amended the US Constitution to put the words “any person” in bold font.


September 20th, 2010

There was an interesting point-counterpoint with Scalia and Breyer, done recently, as best I recall.

It was very good at illustrating the core difference in stated approach to judging.

I have to say this, however, that on the second amendment issue, Breyer kept pushing on original intent, which is fairly plainly about a militia, not about an “individual right” to a gun.

Scalia was left to start drawing on understanding of British common law or British tradition/history or something for the “meaning” of various terms, which is, of course, inimical to a narrow approach (unless I miss some important exception, for this instance).

Ben in Oakland

September 20th, 2010

I listened to Breyer speak last week in san Francisco. I asked him the Big gay question, which he rightfully refused to answer.

“Justice Breyer, I am an American citizen, a tax payer, and a law abiding, productive, and contributing member of my community. Why and how does my government continue to treat me and people like me as second class citizens?”

He rightfully refused to answer the question, saying he would have to recuse himself if he did. I just wanted to get the question out there, and into his consciousness.

If the Prop. 8 appeal goes to Scotus, I hope that Mr. Olson and Mr. boies will ask Scalia to recuse himself based upon this single statement, since 14th amendment protections will be at the heart of the case.


September 20th, 2010

Your rant completely ignores the fact that for a good chunk of our history – women and non-white men did not have the same rights as others. It took legislative action and constitutional amendments to correct that so really Scalia is right in this instance.

Bob Barnes

September 20th, 2010

Interesting that he found “Target” and Best Buy” to be included in “any person.”

Mark F.

September 20th, 2010

Sorry Ben, Scalia does not have to recuse himself because he voiced an opinion on a matter that might come before the court. Breyer is incorrect here. Kagan already said the Constitution does not contain a right to gay marriage. Will she have to recuse herself if this matter comes before the court?


September 20th, 2010

I’m not surprised with anything Scalia says pertaining to gay and lesbians. This is the same man that a couple of years ago was asked if he had any gay friends and replied “I don’t know. Maybe. I’ve never asked.”

What person says that in the 21st century, that they don’t know if their friends are gay. I bet he knew which of his friends were married heterosexuals.

In my view, Scalia is as close to a heterosexist bigot as you will find in such a high position of government. It is a shame he made it all the way to the Supreme Court.


September 20th, 2010

Just one more of the activist right wing wing justices installed on our Supreme Court by the GOP. You know, the “pro-gay” Republican party per many on this site…

Timothy Kincaid

September 20th, 2010

Mark F,

A correction. Kagan’s did not speak in the context of what the Constitution said or how it should be applied. Her comment was in context of what has been found by the court (ie what the justice department would act upon).

It was not her opinion about the Constitution but a recitation of the current status of rulings.


September 20th, 2010

Tim, look up Brown v. Board of Education. It was a SCOTUS decision that desegregated schools, not legislative action or Constitutional Amendments.


September 20th, 2010

Scalia is not worth taking seriously at all. In the past in his dissents in certain cases he as ranted about the “Homosexual Agenda”, and he believes that states have a right to enact laws against fornication and adultery and other idiotcies. As for his view that what counts was what was in the minds of the founders, that is only true in regard to things Scalia dislikes, when it comes to things Scalia likes likes he will disregard “original intention” quite readily while denying he is doing so. Of course “original intent” is also a form of tyranny in which we are expected to constrained by the ideas of men over two centuries ago. If this is the case and the Constitution is a immobile document that can only be interpreted through late 18th century minds then it is time tyo junk the whole thing and get a new one.

It is fascinating that Scalia also disregards the actual words of the constitution. What matters is only what was in the mind of late 18th century men. As deduced by Scalia of course. Who obviously will interprete those opinions according to his bias, given the usualy low level of his decisions and dissents.

It is my understanding that at least some of the4 founders hoped that the constitution would be a growing evolving document that would change in meaning over time so as to be useful in other quite different time periods. Scalia wants it to be a straight jacket.

Mark F.

September 20th, 2010


Yes, I think you are correct. However, my point stands that just because a Supreme Court Justice expresses an opinion on some issue, it does not mean she has to recuse herself if the issue comes up in a case.

Scott P.

September 20th, 2010

Scalia seems to forget that the Founding Fathers allowed slavery and anti-Catholic discrimination. You can bet every dollar you have he’d NEVER say the Constitution allows barring a Catholic from holding a seat on the Supreme Court.

Rob San Diego

September 21st, 2010

Timothy said “So I guess we know how he’ll be voting in the upcoming cases which deal with the equality of gay citizens.”

What, you mean we didn’t know “how” he would be voting against us? I would say, at least we now know “why” he won’t be voting for us.

Anything getting to the Supreme Court will be a 5 to 4 decision.


September 21st, 2010

Tim is wrong, Erin is right.

Also, to address “original intention”, it is fine to adhere to such as it pertains to topics which were around at the time of it’s inception, but to now Rule Against gays (or whatever issue) because a particular issue may not have been specifically address at the time of inception is bad judging.

Apply the law as written.

Gay Marriage is not specifically in the constitution, but this is moot. We are people, and this is the only qualifier.

Scalia is probably a KOC member too.

Donny D.

September 23rd, 2010

Scalia’s originalism is rather extreme, and doesn’t discredit all concern with original intent. It DOES matter if words used two hundred years ago had some different meanings and connotations than they do now, and using modern word meanings to interpret laws enacted centuries ago while pretending one isn’t doing that is the kind of smarmy sophistry one can expect from Breyer. But trying to lock the world into the social relations of times long past is ridiculous. Or would be if the reactionary misapplier of originalism wasn’t a Supreme Court justice like Scalia is.


September 23rd, 2010

Scalia is staunchly anti-gay, period. He does not believe gay persons exist; he believes that only straight people who openly engage in homosexual conduct exist. He sees us through his personal interpretation of Catholicism which defines homosexual conduct as an abomination, something evil, a “crime against nature.” He supports the government’s right to make homosexual conduct a crime punishable by jail time–fortunately he was was in the minority on the Supreme Court case which decided the government may not criminalize homosexual conduct (Lawrence v. Texas). In his writings, if he ever uses the word gay at all, he places quotations (some might call them scare quotes) around the word gay to evince his belief that gay persons do not actually exist. He prefers to use the word homosexual in his writings presumably because that puts the focus of our identity on our sexual conduct rather on our personhood. It is my opinion, based on reading countless Supreme Court opinions written by Scalia that he will NEVER decide ANY case in favor of our community–NEVER. He will couch his reasonings in original intent or federalism or some other jurisprudential theory, but I believe it is really because is he views gay persons simply as straight persons who openly engage in the crime of homosexual conduct.
Lastly, in the land of the Supreme Court words matter, and Justice Scalia is perhaps one of the greatest masters of the written word sitting on the bench today (and for that alone I respect him as a Justice). Keeping in mind the fact that Scalia takes great pride in his skills as a wordsmith, consider the words he chooses when referring to our community in the writings which matter most: his opinions for the Supreme Court. And for that, I refer you to the great empirical analysis in this essay by attorney and author Daniel R. Pinello:

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