Sex discrimination constitutional, says Scalia

Happily, in a lecture, not in a majority opinion:

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law.

And just as logically, if the current society wants to impose discrimination by sex, you have legislatures.

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."

The notion that, at a minimum, the 19th Amendment's enlargement of the franchise to women, made them subject to the "equal protection of the laws," must not impress Scalia.

But never mind such elaborate arguments. Here's section one of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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 life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why would any court, presented with the term "any person," resort to "original intent," legislative history, or any such extraneous source, to ascertain whether a "woman" is a "person"? Why should we care what anyone thought the amendment meant, when what it said is not open to ambiguity?