The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.
In a newly-published interview with the legal magazine California Lawyer, Scalia said that while the Constitution does does not disallow the passage of legislation outlawing such discrimination, it doesn't itself outlaw that behavior:
“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?”