The law site, JD Journal has a summary of Judge Scalia’s reasoning and some background on the philosophy behind it…

Originalism is a doctrine, or more accurately a family of doctrines, that can be used to interpret the Constitution. An originalist interpretation of the Constitution looks to the meaning as it was understood at the time of writing. For example, an originalist interpretation of the 8th amendment, barring cruel and unusual punishment, would only consider a punishment cruel if it was considered cruel in the 18th century. By contrast, a non originalist reading would stick to the text but would examine modern standards of cruelty to determine if a punishment was in violation. Justices Scalia and Clarence Thomas are the country’s leading originalists, but the doctrine has become increasingly popular, primarily but not exclusively among the right wing.

The 14th amendment reads in part “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.” The Court wasted little time in finding that this clause, referred to as the “equal protection clause”, protected citizens from state sponsored discrimination based on race. The original rulings were narrow however and permitted the creation of all white and all black schools, for example, so long as the facilities were equal. The “separate but equal” doctrine was famously overturned in 1954 in Brown v Board of Education. However, the Court rejected numerous attempts to apply the equal protection clause to cases of discrimination based on gender until a unanimous Court ruled in 1971 that a state could not enforce a law that mandated males be given preference over females as estate executors in probate court (Reed v Reed). As a side note, one of the attorneys that argued the case was Ruth Bader Ginsburg, herself a Supreme Court Justice today. It has been a matter of settled law in the years to follow that the government can not discriminate on the basis of gender, along with race and ethnicity.

Dave von Ebers, lawyer and blogger at The Corner Tavern is a little more technical, but very informative about the difference between private and public. So while you can put a ‘no girls allowed’ sign on your treehouse, it’s been settled law for thirty years that the state has to apply the law equally…

Justice Scalia’s overly broad assertion that the Fourteenth Amendment simply does not apply to sex discrimination is even further off the mark when you consider that the Equal Protection Clause bars any form of irrational government discrimination, whether it’s based on race, gender or any other classification. In other words, when the government discriminates on the basis of certain types of “suspect” classifications (like race), it is held to a particularly high standard: Almost no race-based forms of discrimination would ever withstand constitutional scrutiny. And the cases cited above (Frontiero and Craig) stand for the proposition that sex is likewise a “suspect” classification. But even aside from suspect classifications, the government cannot, under the Equal Protection Clause, treat similarly situated groups of individuals differently, if that disparate treatment is not “rationally related to a legitimate state interest.”

Stare decisis is a legal principle that judges should not make new rulings that overturn previous rulings unless there is a compelling reason.

Judge Scalia’s interpretation of the law is counter to thirty years of legal precedent. This is more radical than conservative. Even if you want to believe that the Constitution is Divinely inspired and must be taken literally, there are centuries of history in how it is applied.

It’s time to put to rest the history that denied women the vote until less than a hundred years ago. It’s time to pass the Equal Rights Amendment.

Lawyers can make things infinitely complicated, but the meaning of Judge Scalia’s statements were unmistakable. Even a dog knows whether it’s been tripped over or kicked. Scalia took a kick at women, and women and men who are homosexual, claiming that the common understanding that the Constitution bars discrimination as a function of equal protection under the law is wrong. That without Constitutional protection we will have to fight for our rights case by case and state by state. A better argument for the ERA has not been heard in a long time.