Here’s a rule I learned the hard way practicing law for 23 years: If you’re going to be smug about anything, but particularly the law, you had better be painstakingly accurate when you talk about the thing you want to be smug about. Because otherwise you tend to look foolish. And to my surprise, the rule of painstaking-accuracy-when-being-smug applies not only to practicing lawyers like me – the day laborers of the law biz, you could say – but to Supreme Court Justices, too.
Take, for instance, these pearls of wisdom from Supreme Court Justice and (admittedly, I derive a certain perverse enjoyment from saying this) former University of Chicago law professor, Antonin Scalia:
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.
That answer came in response to a question regarding whether the Fourteenth Amendment, which, among other things, prohibits any state from “deny[ing] to any person within its jurisdiction equal protection of the laws” (U.S. Const. Amend. 14, § 1), applies to discrimination on the basis of sex or sexual orientation. And in answer to that question, Justice Scalia said the Constitution doesn’t prohibit discrimination on the basis of sex, adding for emphasis: “Nobody ever thought that that’s what it meant.”
You be the judge of whether that statement is smug; but if it’s painstaking accuracy you’re looking for, with or without smugness, you won’t find it in what Justice Scalia said.
I’ll be happy to explain, but first a word in Scalia’s defense: To the extent he meant the Constitution doesn’t prohibit private acts of discrimination, he’s right. That’s because aside from the Thirteen Amendment, which prohibits slavery, the Constitution generally does not regulate private behavior. See, e.g., Civil Rights Cases, 109 U.S. 3 (1883) (holding that Congress did not have the authority to outlaw private acts of discrimination under the Fourteenth Amendment.) And federal statutes prohibiting, for example, discrimination in employment or in public accommodations, are grounded not in the Equal Protection clause of the Fourteenth Amendment but in Congress’ power under Article I, Section 8, “[t]o regulate Commerce … among the several States.” See Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding various provisions of the Civil Rights Act of 1964 under the Commerce Clause).
But in his answer to the question whether the Fourteenth Amendment applies to sex discrimination, Scalia didn’t distinguish between private action and state action; and, in fact, the Fourteenth Amendment expressly prohibits certain types of discriminatory actions taken by state and local governments – that, of course, is what it means to say that a state cannot “deny to any person within its jurisdiction equal protection of the laws”: A state can’t apply its laws in a discriminatory manner. (Note, too, that the Supreme Court has long held that the Due Process Clause of the Fifth Amendment has an equal protection component, such that the federal government is equally barred from engaging in certain types of discrimination. See Bowling v. Sharpe, 347 U.S. 497 (1954).) So, presumably what Scalia was saying was: No, the Equal Protection Clause of the Fourteenth Amendment does not prohibit sex discrimination by state and local governments (and, by extension, neither does the equal protection component of the Fifth Amendment’s Due Process Clause prohibit sex discrimination by the federal government); and, further, that “Nobody ever thought that that’s what it meant.”
Which would be news to now-deceased Supreme Court Justice William Brennan, who penned the Court’s opinions in Frontiero v. Richardson, 411 U.S. 677 (1973) and Craig v. Boren, 429 U.S. 190 (1976), both of which held that government discrimination on the basis of sex does violate the equal protection provisions of the federal Constitution. And so contrary to Justice Scalia’s statement that “[n]obody ever thought” the Fourteenth Amendment meant the government cannot discriminate on the basis of sex, Justice Brennan and a majority of the Court thought exactly that:
Analysis [of a constitutional challenge to Oklahoma’s restrictions on selling 3.2% beer] may appropriately begin with the reminder that Reed [v. Reed, 404 U.S. 71 (1971)] emphasized that statutory classifications that distinguish between males and females are “subject to scrutiny under the Equal Protection Clause.” 404 U.S., at 75 . To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.
Craig, 429 U.S. at 197. Which is fancy lawyer talk for: Yes, the Equal Protection Clause prohibits state-sanctioned gender discrimination – at least where the gender lines the state attempts to draw fail to “serve important governmental objectives” and are not “substantially related to achievement of those objectives.”
And Justice Scalia’s overly broad assertion that the Fourteenth Amendment simply does not apply to sex discrimination is even further off the mark when you consider that the Equal Protection Clause bars any form of irrational government discrimination, whether it’s based on race, gender or any other classification. In other words, when the government discriminates on the basis of certain types of “suspect” classifications (like race), it is held to a particularly high standard: Almost no race-based forms of discrimination would ever withstand constitutional scrutiny. And the cases cited above (Frontiero and Craig) stand for the proposition that sex is likewise a “suspect” classification. But even aside from suspect classifications, the government cannot, under the Equal Protection Clause, treat similarly situated groups of individuals differently, if that disparate treatment is not “rationally related to a legitimate state interest.” City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). For example, the government could not decide to tax people who live in even numbered houses at one rate and to tax people who live in odd numbered houses at a different rate, because there would be no rational basis for that distinction, irrespective of the fact that the evenness or oddness of your street address isn’t a suspect classification.
So, even if the Court hadn’t decided that gender was a suspect classification requiring a higher level of judicial scrutiny under the Fourteenth Amendment (which it the Court did, in fact, decide), any form of irrational discrimination based on sex would have violated the Equal Protection Clause anyway. And the funny thing is, in his answer to the equal protection question, Justice Scalia not only incorrectly said that the Fourteenth Amendment doesn’t apply to sex discrimination, he also said it doesn’t apply to discrimination on the basis of sexual orientation. Yet in Lawrence v. Texas, 539 U.S. 538 (2003), the Court explicitly held that Texas’ anti-sodomy laws violated the equal protection rights of gays, because … wait for it … there is no rational basis to treat gays differently from straight people in the application of sex crimes laws. Meaning that even though the Court has yet to determine that sexual orientation is a suspect classification in an of itself, the Court has held that the Equal Protection Clause prohibits irrational discrimination against gays and lesbians.
All of which means that what Justice Scalia said about the applicability of the Fourteenth Amendment’s Equal Protection Clause has been roundly rejected by the Supreme Court, repeatedly, for more than thirty years.
© 2011 David P. von Ebers. All rights reserved.