About a year ago, Justice Scalia was asked whether the Fourteenth Amendment, which prohibits the government from denying the equal protection of the laws, applies to sex discrimination. (Hint: in decades of jurisprudence, the Supreme Court has said that it does.) His answer was shocking. He said:
“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.”
That analysis was news to the millions of women – and men — in America who have relied on the Fourteenth Amendment to assert the right to be paid equally by their government employers, to receive equal access to education at state schools, and to be equally eligible to receive government benefits, regardless of sex. As our own Marcia Greenberger stated at the time, “[i]n 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.”
Last week, in a rare appearance before the Senate Judiciary Committee, Justice Scalia walked those comments back somewhat. Along with Justice Breyer, Justice Scalia had come before the Committee to discuss the role of judges under the Constitution. Senator Dianne Feinstein took the opportunity to ask Justice Scalia about his earlier comments, and specifically whether the Equal Protection Clause of the Fourteenth Amendment protects women.
To anyone who had read Justice Scalia’s earlier, widely publicized comments, the answer was surprising.
“Yeah, of course [women] are included [under the Equal Protection Clause],” said 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.”
Needless to say, we think Justice Scalia’s statement before the Judiciary Committee is the more accurate view, and certainly more consistent with many years of Supreme Court precedent. But the scope of constitutional protections against sex discrimination should not depend upon which day of the week you happen to catch a Supreme Court Justice. The Fourteenth Amendment’s prohibition against sex discrimination is the law of the land, and it should be consistently and fairly enforced.