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WTF Scalia?

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wtf antonin scalia

You've got to be kidding us, Scalia!

According to Supreme Court Justice Antonin Scalia, equal protection under the 14th Amendment does not protect against discrimination based on gender or sexual orientation.

Here's an excerpt from an interview between Scalia and California Lawyer Magazine:

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

We find it really troubling that all of this is coming from a current Supreme Court Justice.

He's retiring soon, right?

[Image via WENN.]

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77 comments to “WTF Scalia?”

  1. 1

    chill out perez he's just stating the fact that they weren't thinking about sex discrimination when they were writing the constitution he's not saying that he agrees with it.

  2. 2

    What's so wrong with what he said…He isn't against equal rights and isn't downing anyone or thing. He's simply saying that change is best enacted through the the legislative process. Perez sure likes the benefits of democracy but based on your posts you surely don't like the process…During the whole DADT debate Obama kept saying he wanted it repealed legislatively and you kept bashing him for that. Change takes time and I know I'm more for change via vote then by one man or 9 men/women deciding what's right or wrong.

    I think this site is best when it sticks to pop culture and celeb news…whenever it gets political it worries me that this may some people's lone source for pertinent info..and perez spreads a lot of misinformation with his cut and paste snippets.

  3. 3

    Perez, you are totally misunderstanding Scalia's point. His reasoning is sound and based on the "original intent" theory of interpretation. Like you, I disagree with his point of view because I believe the constitution is a living, breathing document but that doesn't mean Scalia is necessarily wrong. He is one of the brightest Justices we have had in decades and deserves more respect than your ignorant comments that have no legal basis.

  4. 4

    He's not saying it's right or wrong, he's just pointing out that probably in the 1800's they weren't encompassing sexuality. And he's probably correct.

  5. 5

    I find it troubling that you try and comment on real news. Stick to covering celebrities because at least you'll only sound like a moron covering things that don't matter.

  6. 6

    Scalia forgets to mention that the constituion's bill of rights was added to protect the minority from the tyranny of the majority. To get the legislature to pass laws that protect a minority seems absurd. Especially in conservative states like Idaho where if a politician even thought about passing such a law he or she would never get reelected. He is creepily married to an originalist's point of view (prob to make a name for himself as a kookey Supreme Court Justice that he hopes will echo through the anals of history) that allows for society to descriminate. Plain abnd simple.

  7. 7

    You're a fucking idiot, Mario. You see the word "gay" and you fly off the handle without actually UNDERSTANDING what the fuck is going on.

    What Scalia is saying is TRUE. When the Constitution was written and signed, discrimination based on sexual orientation was not considered because it wasn't an open issue in that society. He goes on to explain that in today's society it is an issue and if Americans want laws against discrimination based on sexual orientation, then legislation can be passed to make new laws.

    Unfortunately, Dancing With the Stars is on and gosh darnit, you're not going to have time to do anything about it.

  8. 8

    I think Perez needs to look up what the Constitution is and its purpose - Scalia nailed it. Stick to what you know…which, apparently, is just Lady Gaga as of late.

  9. Shaun says – reply to this


    perez your such an ass. are you even reading what the man is saying? dumb piece of crap.

  10. 10

    Scalia is a disgrace to the Supreme Court.

  11. 11

    Hate to tell you this but he's probably right. The concept of homosexuality wasn't even a concept until the early 1900s, and I don't have to tell you that women have been regarded as little better than cattle up until the last century. It is entirely probable that the writers of the 14th amendment did not intend for it to protect against discrimination based on sex and certainly not discrimination based on sexual orientation. However, as he says this is a modern society and a democracy meaning it is up to the people to create the laws…which is exactly what he is saying. You're trying to make this guy sound like a sexist bigot which his statements do not imply at all. Bad form. You should learn to think critically.

  12. 12

    i think you are taking this the wrong way. i agree with what he is saying. We can't always turn the constitution to uphold things we think are legal and change things that should be illegal. He is saying that its not in the contstitution, HOWEVER it is wrong and we need laws to fix that! thats why we have politicians and people vote on legistlature to fix things that are missing in the constitution. its our job–he can't make something appear in an ancient document to fit crimes that happen today. Go back and re-read it and see if you can see what he's saying. He is still on your side, he is just explaining what needs to be done to fix the law and the lack of protection for sex discrimination and hate crimes.

  13. 13

    Wow… you really are as stupid as you sound.

  14. 14

    Stick to massaging cock, and leave the deep discussions to deep thinkers like Cher and Clooney.

  15. 15

    Ummm. Boy Scouts and Girl Scouts, based on sex. Public restrooms men's and women's based on sex. All male fraternaties and all female sororities. There are tons of sex based, separate but equal groups. Duuuuh.

  16. 16

    Perez, you need to take a course in reading comprehension. He didn't say anything wrong. Not to mention the fact that just because someone doesn't agree with your world view that they are wrong.

    Judge Scalia has made this type of argument many times. You don't just change the constitution to fit a social agenda. You pass laws and go from there.

    If you just change the constitution willy nilly like you would want, Perez, we'd end up with a banana republic. Subject to the whims of whoever is in charge.

    We'd end up like Peru under Fujimori who fired congress his first day in office and then proceeded to change the constitution because he didn't like that he could only serve for 4 years. Is that what you want for the U.S., Perez?

  17. 17

    I don't believe in the original intent interpretation…but he does…and according to that method, he's right. I think it's the wrong way to look at the Constitution…it makes the Constitution nonelastic across time…it means we need a new one with each modern age. That's not a good idea.

  18. 18

    Re: daisygirl8706 – Homosexuality has been a "concept" before Christ times, you moron!

  19. 19

    Scalia is discussing the law Perez and doing it accurately. You may disagree with it so your remedies are precisely what he outlines. You are the idiot who needs to retire - not him.

  20. SRM says – reply to this


    okay, what exactly did he say that was wrong or objectional. He merely stated that yes the founding fathers didn't have gays in mind when they wrote it, just like they didn't have women or minorities in mind when they wrote the bill of rights. He's also saying that we can do something about these things. Come on! Don't turn nothing into something. Read more thoroughly next time.

  21. 21

    You're such an idiot Perez… Originally this amendment was meant to protect freed slaves…. So no, it didn't have to do with sex or sexual orientation. Furthermore that didn't magically give equal rights to African Americans either; later Williams vs Mississippi gave African Americans the right to vote and Brown vs the Board of Education allowed them to join the public school system. In 1920 the 19th amendment was added for women's right to vote.

    What Scalia is saying is that the 14 amendment does NOT implicitly prohibit discrimination and it doesn't. He's saying new laws need to be created to implicitly protect those rights. That's the beauty of our legal system it grows along with society. Really, more supposedly "outraged" Americans need to get in a courtroom and actually do something about what they don't agree with.

    Perez can you please just keep your fat mouth shut about things you don't comprehend.When it comes to gay rights and equality the shit you say is like taking one step forward and two steps back. There are tons (but we need more) of highly intelligent and ambitious people working towards the cause. Why don't you just sit back and play with your chihuahua.

  22. 22

    No shit! Constitution defines married couple as a union between a MAN and a WOMEN. This is new news to you! Your a fucking idiot!

  23. 23

    Re: johnnyKot – um that's not the right amendment numb nuts…

  24. 24

    Perez, you need to understand what you are posting before you go getting on your high horse! What he is saying is 100% correct - when the 14th amendment was made it wasn't done so with sexual discrimination/orientation in mind - it's a fact - that's not to say it shouldn't be interpreted to reflect todays society rather than that of 1868 . And Eggndart a constitutionally entrenched bill of rights is not easy to make changes to, nor does it necessarily guarantee rights of the minority are upheld, so a suggestion of legislatures passing laws is not that absurd.

  25. 25

    He's not retiring soon enough and has left plenty of damage in his wake — all as part of the Reagan/Bush/Dumbya administrations' efforts to dismantle and frustrate civil rights and equal rights for those of us who aren't rich, white, old, "straight" men. Scalia (like Clarence "Uncle Tom" Thomas) is a scary symbol of just how much damage a sitting president can do with his/her lifetime appointments to the Supreme Court (and other seats on the Federal Bench). Scalia's ethics (and massive ego) were exposed when he refused to disqualify himself from sitting in on his old friend Cheney's case. At least he didn't receive the honor of being Chief Justice, but that's small comfort for the evil he gives off.

  26. 26

    He's absolutely right — intent 200 years ago was a far different thing. Now if you want to float a new Amendment that spells it all out so everyone everywhere understands the meaning and intent as of this moment, then DO IT. But don't try and tell a man who's been serving the LAW of the US for so many years that you are right and he is wrong. Because you know, Perez, you cannot even spell or use the English language correctly.

  27. 27

    Re: johnnyKot – Really? Where does the Constitution say that? (Clue: look in the amendment that provides you're an assclown.)

  28. 28

    I concur with others…he is right and only staing the law as they saw it then. He is not saying he is against sexual equality based on gender or orientation.

  29. 29

    please, i beg of you, stop 'reporting' on issues you CLEARLY know nothing about, you end up looking like the ass you are!! READ WHAT HE SAID, MORON!!!

  30. 30

    Perez, this is where I, a gay man, really hate you. You have no critical analysis skills. He nowhere said it is wrong to give protection to gender and orientation, he just said that he doesn't believe that it was the intended purpose of that amendment in the late 1800's. Think please. He clearly goes on to state that democracy works because it helps eventually get those laws into place. You really give gay people a bad name.

  31. 31

    I was going to comment further on the subject but more than enough readers have made my point: You are ignorant, Mario, plain and simple. I suggest you revisit High School government classes and educate yourself. Hell, even grade school American History would bring you up to speed.

  32. 32

    You don't even understand what he is saying.

    He said protecting gays is ok, if society wants to do that, it should vote for it. There are a lot of things that are good & worthy, they just HAPPEN TO NOT BE IN THE CONSTITUTION.

  33. 33

    Re: polochic – no…. you don't get it. Of course they weren't thinking of sex discrimination or gender discrimination or sexual orientation. But the law is still the same… no discrimination. All of our laws must pass constitutional muster. Do you really think that, if the people were allowed to vote on it, that the Civil Rights laws would have been enacted?

  34. 34

    Re: Atrocitus – yes, you do change the constitution… it's called the amendment process. AND… scalia is taking a VERY narrow view of what is defined in the 14th amendment… a narrow view that supports his own, antiquated feelings. No where in the constitution does it say that the supreme court should have ended the recounts in florida i 2000… and yet our strict constructionist chose to do so anyway.

  35. 35

    Re: Novel1 – lol… and you, of course, are an expert. Funny how people like you scream about the government not know what's best for you but are all about bowing down to someone's interpretation of law. Because that's all he's doing, no matter how he wants to call it a "strict constructionist" view.

  36. 36

    of course this is how a homophobic, religious zealot would chose to interpret the 14th amendment. and don't forget he was nominated by that idiot Ronald Reagan.
    Whereas Scalia is widely admired among conservatives, many liberals dislike his views. In March 2009, openly gay Congressman Barney Frank described Scalia as a "homophobe".
    Maureen Dowd described Scalia in a 2003 column,
    He's so Old School, he's Old Testament, misty over the era when military institutes did not have to accept women, when elite schools did not have to make special efforts with blacks, when a gay couple in their own bedroom could be clapped in irons, when women were packed off to Our Lady of Perpetual Abstinence Home for Unwed Mothers … Antonin Scalia is Archie Bunker in a high-backed chair.

  37. 37

    Scalia's absolutely right, and that's why we worked all those years to get the Equal Rights Amendment passed, because current American law DOES NOT provide equal protection under the law when it comes to gender or sexual orientation. The answer is simple, and it's surprising that a right-wing nut like Scalia has to teach it to people. Get up off your asses and pass the Equal Rights Amendment.

  38. 38

    Equal Protection Clause of the 5th Amendment, Moron!

  39. 39

    Scalia's absolutely correct. It's up to the states to enact laws like this. I'm effing sick of the federal government trying to run everybody's life! STATE'S RIGHTS, BABY! If the homos wanna change things, they need to do at the local level!

  40. 40

    He's not giving his personal opinion on the matter, you moron. He's pointing out the fact that when it was written, those subjects were not considered, thus making them a moot argument in relation to the 14th. Period. That's why he's a Justice and you're a parasite.

  41. 41

    5th Amendment - Due Process/Equal Protection

  42. 42

    Re: laythisdown – you realize that the equal rights amendment has never passed, right?

  43. 43

    Some of the comments here are starting to remind me of Jay Leno's Jaywalking segment where he asks people history questions to which they reply with the most ignorant answers imaginable. For example, the 14th Amendment was adopted in 1869, so no, it wasn't written by "the founding fathers," all of whom were long dead by then and it wasn't written 200 years ago! And this is a lot more than simply a problem of strict interpretation. The 14th Amendment was simply not written for the purpose protecting woman's and gays' rights and we really do need another Amendment to do that. That's what the Equal Rights Amendment was supposed to be for.

  44. 44

    If people would just read what he really said then form an opinion instead of forming an opinion after a few words, just think how wonderful this world would be. But then, 90% of the people who make comments wouldn't have anything to do but become worthwhile American citizens.

    Sex discrimination wasn't in the thoughts of the creators of our Constitution. Women did not have any rights. Period. No rights, no discrimination. Period.

  45. 45

    Re: daisygirl8706 – And you don't really know what you are talking about. The Supreme Court is not established to MAKE law, only to determine if laws enacted by jurisdictions (be it the federal govt or localities) conform to the Constitution.

    It doesn't matter that homosexuality "as a concept" (which by the way does show some of your ignorance already) was or was not anticipated, but what laws might or might not be passed about it. The Congress, or your local City Council for that matter, passes laws. The Supreme Court, if a challenge ever makes it that far, is to adjudicate whether a law passed complies with the requirements or the precepts set forth in the Constitution.

  46. 46

    Re: eggndart – Much of the Constitution was written to prevent the Federal Government from controlling the States, to limit what the Government could do, and to prevent the Government for taking over what was not within their rights to control. Only a few aspects were to prevent the majority from infringing upon the minority. Probably the main one would be the Electoral College. Most everything else was simply a limiting of the powers of a centralized government from talking control of things that the Founders felt should not be within the Government's purview.

  47. 47

    He's 100% correct. He just doesn't bow before your radical homosexual agenda. Want change? Use the legislature. Don't make the Constitution mean something it doesn't. But what's that sound? Oh yes… words of reason landing on deaf ears.

  48. 48

    Like you actually care about discrimination anyway… you've just spent the last two weeks promoting Israel without once mentioning the apartheid there that discriminates against the arab populations. The land seized that is classified as 'occupied illegally' by the entire international community…
    You lack of acknowledgment defiles any thoughts you have that you are for equality for ALL people… your nonsense about loving Gaga's little monsters who are 'born this way' further embarrasses you as ignorant to the plight of millions born into a way of suffering imposed on them by illegal occupation and imprisonment in the state of Gaza… SHAME ON YOU FOR EVEN THINKING YOU COULD COMMENT ON ANY SORT OF EQUALITY

  49. 49

    Perez you need to take a classs or read a book on American history. All Scalia is saying is that the constitution does not address homosexuality one way or another; it was not a factor. He then says that the constitution isn't even necessary- other ways exist. you might be a great voice for the gay community some day, but I suggest you prepare so you don't come off as a reactionary idiot.

  50. 50

    calm down Perez
    clearly you don't know what country you live in
    America, and we have the right to freedom of Speech
    Secondly there is nothing wrong with what he said, he is stating his opinion on the matter that i agree with. That doesnt mean we are anti gay rights
    calm down, you over react too much

  51. 51

    Re: DragonSlayer – haha :0

  52. 52

    What people fail to realize is that the Majority voting on the rights of the Minority is a flawed system. There has never been a drastic Civil Rights related law passed through legislation; they have all gone through the court system.

  53. 53


  54. 54

    Ah, yes, the American Dream: the ability for white christians to decide the fate of minorities.

  55. 55

    He came to my school.. my school is a bible belt.. Still love Texas Tech though. He has some really really farrr right views. I never knew someone could be sooo backwards.

  56. 56

    Yeah Scalia, we do have "things called legislatures" to keep laws up-to-date, but we also have things called amendments to keep the Constitution up-to-date. So I'm sorry, but for being a Supreme Court Justice, you are pretty ignorant if you think that the Constitution was not meant to be updated to reflect the changing of the times. If the Founding Fathers found this to be unnecessary, why did they allow for amendments to be added?

  57. 57

    we need separate laws for everyone and we should be able to change them on the first Thursday of each month. Its only fair

  58. 58

    Re: zenjen – So you believe that we can change the constitution whenever we want and do away with any of the rights that it guarantees at will? Are you willing to live with the results? Remember, the changes may not go the way you want! Will you support a living breathing constitution if fundamental Christians get control? I think not. Watch out, you may get what you're wishing for!

  59. 59

    And by the way everyone who is commenting that Perez is an "idiot," clearly didn't read his comments on what Scalia said. All Perez said (and implied) was that he disagrees with Scalia's opinion that 14th Amendment rights don't cover protection against discrimination based on gender and sexual orientation. He isn't saying that he is factually wrong, merely saying that he finds this statement to go against his own perception of the meaning of the amendment. Let me just remind everyone that it is the job of the Supreme Court to INTERPRET the meaning of the constitution and this is just Scalia's interpretation and that others may have their own interpretations of its meaning. Oh and for the girl who said homosexuality wasn't even a concept until the 1900s… WHAT?! Are you kidding? Homosexuality most likely existed even before there were humans, considering it exists in the animal world currently, and I doubt that is them mimicking human behavior.

  60. 60

    I'm with ebliss. Perez, you're not Katie Couric, stop trying to be. Every time anyone says anything about homosexuality you feel that you have to comment and make it a bigger deal than it is. If he flat out said "I think we need to change the constitution to say that it's Adam and Eve not Adam and Steve"? Then yes, be outraged. But a man who understands the letter of the law and has been chosen because he exhibits a measure of fairness speaking about what a law SAYS is not cause to be up in arms.

  61. 61

    Re: Shamela – There's an amendment that provides us with assclowns? I see you got yours but where here do I get mine?

  62. 62

    PEREZ, I respect your sexuality. I have no problem with gay people. However, I absolutely DETEST it when you try and shove a pro gay agenda down everyone's throats!! I don't care what you do in your bedroom or with whom you do it. It is NONE of my business!!! You are quickly turning into a damned Nazi!! Leave off of it already!

  63. 63

    I was about to put my JD to good use, but it appears that everyone else has already made the point. With that, i concur….

  64. 64

    Semi-automatic guns didn't exist when the Constitution was written either, so they're not covered by the Second Amendment. Can the Government ban them?

  65. 65

    He's always been a misogynistic, homophobic piece of shit, it's not like such statements coming from him are particularly surprising. At least there are plenty of decent people in the Supreme Court to counteract his crazy.

  66. 66

    Re: alealejandro – He may not have said it, but he is thinking it, because all of his actions so far have been anti-women and anti-gay. Just because he's hiding behind the law doesn't change the fact that he's a hateful, mean, narrow-minded homophobe and misogynist taking advantage of an outdated law system to further his vicious and harmful agenda.

  67. 67

    majority wins wasn't the constitution's intent either. that's why racially prejudiced legislatures were overturned. just because the majority thought it was A-OK to discriminate against african americans didn't mean they were right.

  68. 68

    Gays should be eradicated. Problem solved.

  69. 69

    Re: daisygirl8706 – homosexuality has been in the public domain since at least classical greece and rome

  70. 70

    He's absolutely right. Study your U.S. Government History.

  71. 71

    Jesus, do you even use your brain cells? Just because he isn't chanting "gay marriage all the way!" doesn't mean he's against it.

  72. KateT says – reply to this


    Dunja14 is ABSOLUTELY right as is Justice Scalia. Perez, you are not a lawyer so back the eff off and read the constitution!

  73. 73

    Even though I support equal rights, Scalia is absolutely right about the intentions of the founders. Gay marriage was completely outside their scope of thought because no one even thought to consider it back then. I'd like to see all of the extremists on the Court (both the conservatives AND liberals) go bye bye. Justices, in an ideal world, should be fair, logical, and moderate. Dare to dream.

  74. 74

    Re: Mancunian – Homosexuality perhaps, but no the idea of a homosexual marriage.

  75. 75

    Re: Mancunian – Homosexuality perhaps, but not the idea of a homosexual marriage.

  76. 76

    I don't see the what's so outrageous about Scalia's comments. I mean, think about it: if the 14th amendment prohibited gender discrimination then that would invalidate:
    1. VAWA (Violence Against Women Act which funnels money based on gender)
    2. Women owned business set asides and contracting preferences by state and federal governments that steer business to women owned and operated firms
    3. Programs that have gender set asides for admission to colleges and other programs based on gender preferences for women

  77. 77

    Re: eggndart – Sorry, but you are wrong. The Bill of Rights was added to protect the people from the government.