The Meaning of Equal
Conservative originalists are rethinking their narrow reading of the 14th Amendment.
Posted Monday, Dec. 12, 2011, at 1:47 PM ET
Justice Antonin Scalia created a firestorm last winter when he opined that the 14th Amendment does not protect women against discrimination on the basis of sex. The truth is that this view has been, until recently at least, a bedrock conviction of conservative originalists. In that sense then, the bigger news came at a Senate Judiciary Committee hearing in October when, confronted on his remarks by Sen. Dianne Feinstein, Scalia backpedaled and suggested that the Equal Protection Clause did indeed protect women from state-sponsored discrimination on the basis of sex. For a Justice famous for his blunt and unchanging conservative views, Scalia’s fancy footwork was fascinating, and telling.
In fact, Scalia’s backpedaling is part of a significant reassessment of the meaning of the Equal Protection Clause that is transforming the debate over the Constitution. This debate, which is happening in conservative legal and academic circles, could have a dramatic impact on the outcome of critical cases—including Perry v. Brown, the challenge to California’s Proposition 8 and the denial of marriage equality to gay men and lesbians. After a long detour to the California Supreme Court on the question of whether the case can even go forward, Perry is heating up, with the Ninth Circuit hearing oral argument last week on two separate issues, and a decision expected on the merits in the months to come.
Read the full story here: Slate Magazine