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Breasts
Now that I have your attention, I wish to direct it to a split decision handed down today by the 10th Circuit. On equal-protection grounds, the court struck down an ordinance in place in Fort Collins, CO forbidding women from baring their breasts in public except for the purpose of breastfeeding. Ed Whelan at National Review is on the case, and he reports the following:
In his majority opinion (joined by Judge Mary Beck Briscoe), Judge Gregory A. Phillips cites with approval the district court’s objection that the ordinance “perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” In a classic false dichotomy, Phillips concludes that the city’s “professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.” Ditto for “notions of morality” that might underlie the law.
The minority opinion, which Whelan quotes at length, is, as he points out, quite sensible. The difference between the two opinions, I would add, comes down to the majority’s acceptance of this absurd dogma: there is no natural difference between women and men worth noticing. Nearly everything that we used to attribute to sexual difference is explicable in terms of gender — which, when the term is appropriated from grammar and applied to human beings (as it first was ca. 1960), means that it is arbitrary . . . a social construct . . . and nothing more. Therefore, the law cannot take cognizance of the differences between women and men.
What is missing from the majority’s opinion is a recognition that the artificial mores and manners that we construct with an eye to the sexual differences supplied by nature are constructed on the foundation of those natural differences. These mores and manners differ somewhat from one society to another, but there is no civilization that fails to articulate mores and manners of this sort, and that is telling. Moreover, the majority willfully ignores the fact that, within this astonishing diversity of mores and manners, there is considerable uniformity and that this uniformity is a product of rumination concerning the import of natural sexual differences on the part of a vast number of human beings who are on other matters at odds.
The sad truth is that the dogma that provided the foundation for the 10th circuit’s decision is shared by nearly everyone who teaches at the colleges and universities in this country and that the credentialed elite produced by these institutions is by and large on board with this nonsense. What makes it particularly astonishing is that this dogma has gradually become established in an era in which students of biology have gone the other direction — suggesting that nature, rather than nurture, is the primary influence on the way we customarily think and the way we live. On the one side, there is ideology. On the other, there is science. We as a country are choosing the former.
I have no doubt that the Supreme Court will overturn this decision, which is at odds with the positions taken by other circuits. But we should not kid ourselves about what lies ahead.
Published in Law
Save second base!
Randy, I don’t know what third base is in the make-out ladder. Perhaps that’s why I never did very well with girls.
Perhaps you’d like to explain. That way I’ll know what to do.
And yet, despite the hullaballoo today, this has been the law for decades in many states including Texas and it simply is not any kind of problem. It is not a harbinger of the downfall of civilization. Women simply do not like being topless for the most part and they don’t do it. Please, there are real problems in this world. This is not one of them.
Sky,
I don’t think you understand but that may be my fault. Both Freud & Jung would most certainly accept gender differences based on sex. Meaning that they would simply agree with you that “women don’t like being topless”. They would also consider a suggestion that this is some kind of equality crisis, as severe neurosis on the part of the gender equality freak. Freud & Jung would have been delighted by your statement, “Please, there are real problems in this world. This is not one of them.”
We have been making progress. It just happens to be in the wrong direction.
Regards,
Jim
I don’t know either, but there was a breast cancer awareness campaign titled “Save second base.”
Third base has something to do with funny hats that women wear at protests, or something.
The fewer laws, the freer we are. We only need laws to protect people from others that want to harm them, or to preserve our national sovereignty.
I don’t want my daughter, wife, or my mother to walk the streets topless. I daresay that none of them are inclined to do so. I think that people who have wives or daughters who do such things should re-evaluate how to influence them to make better judgments.
But that’s all it is. There is no harm done to anyone if a woman bares her breasts, with the possible exception of her reputation. Hector’s wife did it in the Iliad. Pretty dramatic scene. Lots of artists portray breasts all the time. It just doesn’t hurt anyone.
And we can look at current laws and see that no one is harmed. No one is confused as to what is feminine or masculine because of a law that no one takes advantage of.
I don’t know what Freud or Jung have to do with anything. I can safely say that neither has ever impressed me. If their position on anything coincides with mine, it’s just a stopped clock.
Totally off topic, but that is a wonderful play and was a wonderful movie. Here’s a sample, with Ava Gardner as Venus:
You mean we stroke and caress their hats, along with perhaps a wet kiss or two? That doesn’t sound like a lot of fun to me. I”m not going to do it!
Professor, I am uncertain that I am being clear. Perception, of course, is subjective, but can fall within a range and a frequency as to be labeled a “normal” reaction. The question I raise is whether it should be lawful to punish someone without perverse intent for doing what another can lawfully simply because it provokes a reaction — rather than asking the individuals who react to contain themselves. That is a fundamental question of liberty. I don’t think I have adopted the reasoning of the judges and said there is no difference. What I have said is that the judges took the easy way out by asserting (wrongfully) that there is no difference. The harder task is to uphold liberty while recognizing the difference. And that is a challenge for us all.
You guess wrong, and there is nothing in anything that I said that would imply an ability on my part to control myself. All that I suggested was that certain “perceptions,” to use a word I borrowed from someone else, are normal.
The nudity is an assault on the senses of those nearby. It does do harm. It is a species of harassment, and the perception is not subjective. It is more or less automatic. One can, of course, control one’s conduct. But one cannot fully control one’s psychological response. I am not, by the way, arguing that there should be a law. Social pressure used to be sufficient. I am saying that there is nothing wrong with such a law and that, if social pressure is insufficient, there might even be a reason for it.
Physiological either, probably.
Maybe this will help. You’ll have to watch for a while
But although it is legal, and has been for decades, it almost never happens.
Darn you Randy. I watched Meat Loaf sing for 8 minutes and never came up with the answer of what is third base. As you know, there’s a baseball game in the middle of the song, but while it seems obvious what is a homer, Meat Loaf never tells us what third base is — only that it comes just before a home base, which is obviously a score!
My life is now 8 minutes shorter and I still don’t know.
But you have to admit it was a good song.
Yeah. That’s what I meant :-)
I wouldn’t count on that interpretation. :)
No, I wouldn’t count on it, either. It seems that large parts of the legal community feel no shame in logical inconsistency.
That’s the first thing you need to figure out in law school.
The first thing you need to figure out is how to get rid of your soul and concience.
Nah. There are all kinds of lawyers. That’s only for the rich ones. :)
When I was in law school someone at my church asked if I was going to be the first honest lawyer. I responded, “I hope not.”
Yeah. Those guys give the other 3% a bad name.