Excerpt from Scalia's Dissenting Opinion
U.S. Supreme Court
Nos. 94-1941 and 94-2107
UNITED STATES, PETITIONER v. VIRGINIA et al. 94-1941 VIRGINIA, et al.,
PETITIONERS v.
UNITED STATES
94-2107
Justice Anton Scalia, dissenting:
Much of the Court's opinion is devoted to
deprecating the closed-mindedness of our forebears with regard to women's
education, and even with regard to the treatment of women in areas that have
nothing to do with education. Closed-minded they were-as every age is,
including our own, with regard to matters it cannot guess, because it simply
does not consider them debatable. The virtue of a democratic system with a First
Amendment is that it readily enables the people, over time, to be persuaded that
what they took for granted is not so, and to change their laws accordingly. That
system is
destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's
criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which
has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the
counter-majoritarian preferences of the society's law-trained elite) into our Basic Law. Today it
enshrines the notion that no substantial educational value is to be served by an all-men's military academy-so that the decision by the people of
Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is
entirely clear that the Constitution of the United States-the old one-takes no sides in this educational debate, I dissent.