Occasionally, random things come across my desk. This morning, this was the random thing waiting for me when I got to the office. It's an interview by a legal blog with Supreme Court Justice (and resident "activist judge," to use the parlance of the hypocrites on the right) Antonin Scalia, in which Scalia pontificates on the meaning of the Fourteenth Amendment. For those not able to identify all the amendments off the top of their head, that's the one that, among other things, says this:
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.
Got that? No state is permitted to deny to any person the equal protection of the laws. And what does Scalia take that to mean?
Interviewer: 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.
You got it -- the Constitution spells out explicitly that the state may not deny to anyone under its jurisdiction equal protection of the law, but Scalia says that doesn't mean discrimination on the basis of sex is unconstitutional.
Now, there's a funny thing about the way our system works. In any legal debate you may have with the Supreme Court, it doesn't really matter if you are 100% right on the facts and the law and they are 100% wrong -- whatever ruling they make on what is or isn't in the Constitution, they win. They are the final arbiter of what is or isn't Constitutional (subject, of course, to the amendment procedure) and if you want to practice law, you have to keep up with their rulings. And if you're a judge, you're bound by their rulings.
Maybe it's just me, but Scalia doesn't strike me as the kind of guy who would take too kindly to a practitioner of the law simply disregarding a Supreme Court ruling s/he didn't like or that was inconvenient to the point of view s/he was trying to promote. So you have to wonder what's going on when he ignores a Supreme Court ruling from 1971 in Reed v. Reed. Briefly, the adopted son of a divorced couple passed away and both parents sought to be named the administrator of his estate. The Idaho Probate Code required that "males must be preferred to females" in such appointments, so the father was appointed and the mother sued, alleging a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court's decision was unanimous, with the most relevant section of the opinion here:
The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike..."
To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of gender.
Granted, as a member of the Supreme Court himself, Scalia's situation is slightly different from that of most people who dispute a SCOTUS ruling. But the operative principle still applies -- even if you're entirely right on the facts and the law and the Supreme Court is entirely wrong, in any dispute with them, they win and you lose.
Even if you're a member of the court yourself.
How much more so when they are entirely right on the facts and the law and you are entirely wrong.