Scalia: No protection against sex bias, no right to privacy in Constitution
‘If the current society wants to outlaw sex discrimination, hey, we have legislatures,’ Scalia says
In comments foreshadowing how he might rule on the issue of gay marriage, Supreme Court Justice Antonin Scalia has said he believes the US Constitution doesn’t provide protection from discrimination on the basis of gender or sexual orientation.
Scalia, a Reagan appointee considered to be a conservative stalwart on the bench, told an audience at UC Hastings Law School in San Francisco that the court’s recognition of a constitutional right to privacy — the basis of Roe v. Wade — is a “total absurdity,” the San Francisco Chronicle reports.
In 1965, the Supreme Court ruled in Griswold v. Connecticut that a state ban on contraceptives was unconstitutional because it violated the “right to marital privacy.” That ruling set the basis for Roe v. Wade, in which the court overturned bans on abortion on the grounds that they violated privacy.
Scalia has long advocated overturning Roe v. Wade, though it’s believed the court wouldn’t have enough votes to overturn it in a direct challenge.
The 14th Amendment, enacted after the Civil War in 1868, guarantees due process and equal protection and in recent years has been interpreted by courts to prohibit sex discrimination as well as racial discrimination.
But Scalia said he believes the amendment doesn’t apply to discrimination against women because that use of the measure was not intended in 1868.
He said he personally opposes bias against women, but said it can be banned by laws rather than reliance on the Constitution.
“If the current society wants to outlaw sex discrimination, hey, we have legislatures,” Scalia said.
Scalia’s attitude to the Constitution and sex bias issues could have a profound effect on US policy for years, as the Supreme Court is expected to hear a number of cases centering on gender orientation in the near future.
Among those is the legal struggle over California’s Proposition 8, which bans gay marriage. This past summer, a US District Court judge ruled Prop 8 unconstitutional. The case could reach the Supreme Court eventually.
Scalia asserted that the Constitution’s authors always meant for religion to play a large role in US politics, the San Jose Mercury-News reports.
“Don’t tell me that the framers of the American Constitution never had that in mind,” he said. He added that the United States is superior to some other countries because it “does God honor.”
“It’s not unconstitutional,” he said.