Justice Antonin Scalia has a long history of skepticism toward the Constitution’s shield against laws that discriminate against women. In a 1996 Supreme Court decision limiting gender discrimination in Virginia’s higher education system, Scalia cast the sole dissenting vote in favor of allowing the state to continue to deny educational opportunities to women. And he has repeatedly claimed that the 14th Amendment’s guarantee of “equal protection of the laws” does not prevent gender discrimination. Yet, in a response to a question from Sen. Dianne Feinstein (D-CA) at a Senate Judiciary Committee hearing earlier this week, Scalia appeared to back off this longstanding view:
FEINSTEIN: This is your quote, Mr. Justice, in California: “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.” So why doesn’t the Fourteenth Amendment then cover women?
SCALIA: The Fourteenth Amendment, senator, does not apply to private discrimination. I was speaking of Title VII and laws that prohibit private discrimination. The Fourteenth Amendment says nothing about private discrimination, only discrimination by government.
Scalia is correct that the 14th Amendment only applies to government discrimination, but he is wrong about what he has said in the past. The quote Sen. Feinstein read came from an interview where Scalia was asked if “we’ve gone off in error by applying the 14th Amendment” to sex discrimination and discrimination on the basis of sexual orientation. Scalia began his response by saying “yes, yes” he does think applying the 14th Amendment to gender discrimination was an error.
It’s possible that Scalia simply misremembered his past statement on gender discrimination, although this is unlikely because the statement was widely reported and just as widely criticized. Nevertheless, if Scalia is now backing off this strange position and is willing to embrace the mainstream view that laws singling out women for inferior treatment do indeed violate the Constitution, then that is a positive development and Scalia deserves credit for rejecting his unfortunate past statements.