Scalia: Women And Gays Don’t Have Constitutional Protection Against Discrimination

The Huffington Post
January 3, 2011





For the record, the 14th Amendment’s equal protection clause states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of

Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.


in the past, before their rights to



UPDATE: Observers have pointed out that Scalia and his interviewer, UC Hastings law professor Calvin Massey, are wrong when they say that no one ever considered the 14th amendment applying equal protection for women. In fact, Elizabeth Cady Stanton, Susan B. Anthony and other women’s rights advocates publicly pushed to include explicit mentions of women’s rights in the 14th and 15th amendments. (The National Woman Suffrage Association was born out of Stanton and Anthony’s opposition to the shape of the 14th amendment.) Republican Rep. Thaddeus Stevens introduced a petition for universal suffrage in 1866.

Their version, however, was defeated, and as Linda Gordon, NYU professor of history, told The Huffington Post, "the women who had led that felt they had been absolutely sold out by the post-Lincoln Republican Party because the 14th and 15th amendments are the first times that this notion of black people as a separate category was added" to the Constitution.

Legal scholar Jack Balkin writes that while the 14th amendment doesn’t end up explicitly mentioning sex, that doesn’t mean it doesn’t grant women equal protection:

First, The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is
not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.



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