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Scalia Confounded by Prevalence of F-Word, Clear on Lack of Protection for Gays, Women

Posted Jan 4, 2011 7:59 AM CDT
By Debra Cassens Weiss

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In a magazine interview, Justice Antonin Scalia dishes on deep dish pizza (it’s not real pizza), the F-word (is it really so prevalent?) and originalism (laws can change, but the Constitution's meaning doesn’t evolve).

Scalia’s comments on originalism are getting the most attention from bloggers. In the interview with California Lawyer, Scalia responded to an interviewer’s question about the equal protection clause. This is the exchange:

California Lawyer: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Scalia: Yes, yes. Sorry, to tell you that. ... But, you know, 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. 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. You don't need a Constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Scalia’s comments attracted notice from the Advocate.com, the Huffington Post and FoxNews.com. He made similar comments on the 14th Amendment earlier this year.

California Lawyer also asked Scalia to elaborate on his assertion in a dissenting opinion that, “We live in a vulgar age.” What accounts for civic vulgarity? the interviewer wanted to know.

“Gee, I don't know,” Scalia replied. “I occasionally watch movies or television shows in which the f-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn't behave that way. Who imagines this? Maybe here in California. I don't know, you guys really talk this way?”

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