California Lawyer has posted an interview with Supreme Court Justice Justice Antonin Scalia. In it, the interviewer asks about the 14th Amendment—passed by Congress in 1868 and overturning the Dred Scott decision that said black people weren't U.S. citizens—which declares: "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... deny to any person within its jurisdiction the equal protection of the laws. " The interviewer asks, then, how this applies to citizens who turn out to be gay and women:
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?
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.
Congress wasn't thinking about gay and female citizens—who knew they existed at the time?—so they don't deserve the same rights as black or white straight dudes. Congress only intended to benefit white and black guys, so that's all the amendment applies to. Everyone else who is a citizen—even though it appears to apply to all "citizens"—is out in the cold. So out of the jury booth, homos! And out of the army, ladies! Also, foggy-headed justices—no explicit protection for you!
Tip from Sam and via the Huffington Post.