Breaking News: Scalia's an Asshole

Not for the first time, Supreme Court Justice Antonin Scalia has asserted that "the Constitution's 14th Amendment doesn't guarantee protection against discrimination on the basis of gender or sexual orientation."

"Certainly the Constitution does not require discrimination on the basis of sex," Scalia told California Lawyer. "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."

Scalia, long known to be a constitutional "originalist" and a conservative stalwart on the Supreme Court, argued that it's up to legislatures to pass laws that protect women against discrimination, and doing so wouldn't be unconstitutional.

"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," he said. "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."

...Scalia's position on gender and sexual orientation discrimination is nothing new. The Reagan-appointed justice told an audience last summer that the 14th Amendment doesn't protect women because that wasn't the intent of the amendment when it was written in 1868.

He also said the Roe V. Wade decision that struck down laws against abortion was based on "a total absurdity."

Marcia D. Greenberger, founder of the National Women's Law Center, underlines one inherent problem with Scalia's position: "In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them. But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011."

And Big Tent Democrat underlines another inherent problem here: "What Scalia says is that even though the original understanding of the 14th Amendment would, if applied today, prohibit gender discrimination, since in 1868 it was understood not to, then the 19th Amendment was necessary to give women the vote. This leaves Scalia with a significant problem in my view - what of other forms of gender discrimination? To me, Scalia's statements require him to state that other forms of gender discrimination are CONSTITUTIONAL."

Scalia takes originalism to a ludicrous degree. His position does not reflect the thoughtfulness and nuance that any US citizen has the right to expect of one of the nine people chosen to make the nation's most difficult legal decisions. It is, instead, approximately as sophisticated as a child who still believes his daddy can't ever be wrong.

That is, quite evidently, not good enough for the marginalized people in this country who frequently have to depend on the Supreme Court for access and equality.

Which is, of course, the point.

Scalia isn't a stupid fella. He's just a bigot. A bigot with a lifetime appointment to make decisions about the rights and lives of people against whom he holds deeply entrenched bigotry.

In a decent country, there would be outrage about that unambiguous injustice sitting square in the middle of the Supreme Court. But in this country, it barely gets noticed. After all, there's no explicit right to fairness for marginalized people in the Constitution.

As Justice Antonin Scalia will happily tell you.