Justice Antonin Scalia is making headlines again, this time for a speech to the Federalist Society in Montana yesterday. According to the AP , Scalia was discussing the Constitution's Equal Protection guarantee, which protects those who are unpopular from legislation specifically targeting them for harm.
In an apparent reference to the court's recent decisions on gay marriage and benefits for same-sex couples, Scalia said it is not the function of the courts to create exceptions outside the Constitution unless a majority of people agree with them.
Of course, no one is saying that the courts should be creating exceptions outside the Constitution. The disagreement is over what is "outside the Constitution," and Scalia apparently thinks "equal protection" doesn't apply to everyone.
"It's not up to the courts to invent new minorities that get special protections," Scalia told a packed hotel ballroom in southwestern Montana.
Minorities like gays and lesbians don't need the court to create us – we're already here, along with everyone else. And when laws are passed signaling out a group for harsh treatment, as DOMA did, it is the legislature that is "inventing minorities" that get "special" treatment. What the Court is doing is eliminating the invidious classification, as the Constitution requires.