Contributor Post Created with Sketch. 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.

There are 86 comments.

  1. Western Chauvinist Member

    I know some young men who will very much regret their recent decision to transfer from CSU to UCCS… Talk about poor timing.

    • #1
    • February 15, 2019, at 3:50 PM PST
    • 10 likes
  2. Full Size Tabby Member

    I am not so sure that the US Supreme Court would overturn this absurd decision. Dogmatic idiocy infects such a large percentage of the legal profession that I think the perpetrators will find it easy to fabricate legal-sounding arguments in favor of the 10th Circuit’s decision.

    • #2
    • February 15, 2019, at 3:51 PM PST
    • 2 likes
  3. Bob Wainwright Member

    Liberalism always needs to have some new frontier to conquer, some new unfairness to rectify, some new bigotry to vanquish. Laws requiring breasts to be covered are as good a target as any. 

    (But Judge Phillips is probably just a boob man.)

     

    • #3
    • February 15, 2019, at 3:52 PM PST
    • 9 likes
  4. Full Size Tabby Member

    I am reminded of the oft-referenced statement that is something along the lines that if you don’t consider what something is for (its purpose), you will not understand how to treat it.

    (I think it was by C.S. Lewis in connection with treating milk differently from some other bodily secretion of a cow, even though they were both bodily secretions from a cow.)

    The 10th Circuit has failed in understanding what the bodily differences between men and women are for

    • #4
    • February 15, 2019, at 3:56 PM PST
    • 5 likes
  5. Lash LaRoche Inactive

    Thanks for keeping us abreast of this topic.

    • #5
    • February 15, 2019, at 4:00 PM PST
    • 28 likes
  6. The Reticulator Member

    If it’s a social construct, why shouldn’t it stay constructed?

    My house is constructed. That doesn’t mean it’s the duty of the courts to tear it down. 

    • #6
    • February 15, 2019, at 4:02 PM PST
    • 14 likes
  7. Unsk Member

    “The 10th Circuit has failed in understanding what the bodily differences between men and women are for. “

    Oh Please Tabby! Our Betters have admonished us that women and men are equal absolutely in every possible way and these “bodily differences” you reference are just artificial constructs to further the White Male Patriarchy – don’t you see? Won’t we ever learn? Maybe to really bring home the true righteousness of their argument and authority, our Betters will be forced in the future to ban breastfeeding altogether to completely eradicate these artificial constructs between the so-called genders. 

    • #7
    • February 15, 2019, at 4:06 PM PST
    • 3 likes
  8. Basil Fawlty Member

    Mike "Lash" LaRoche (View Comment):

    Thanks for keeping us abreast of this topic.

    Tits the worst 10th Circuit decision in recent mammary.

    • #8
    • February 15, 2019, at 4:10 PM PST
    • 16 likes
  9. Max Grossmann Inactive

    I very much agree that the predisposition in asserting that there are no differences between men and women is profoundly dogmatic, i.e. unexplainable. Any reply, kerygmatic it may be, is merely discarded in service of an ideology whose precepts are rarely grounded in reality. In that sense, the ideology can never be disproven and it is questionable whether reference to facts will be in any sense successful, ever. It truly is no wonder that where kerygma failed the right has responded with its own populist dogma.

    • #9
    • February 15, 2019, at 4:10 PM PST
    • Like
  10. Brian Watt Member

    I am reminded of a comment made by Chris Isaacs, the singer, when he began a concert in Orange County one summer. He surveyed the audience and said, “It’s great to be here in Orange County. I’ve got to tell ya, I’ve never seen so much tanned cleavage in my life…

    …and the women look great, too.”

    • #10
    • February 15, 2019, at 4:23 PM PST
    • 9 likes
  11. Samuel Block Member

    Full Size Tabby (View Comment):

    I am reminded of the oft-referenced statement that is something along the lines that if you don’t consider what something is for (its purpose), you will not understand how to treat it.

    (I think it was by C.S. Lewis in connection with treating milk differently from some other bodily secretion of a cow, even though they were both bodily secretions from a cow.)

    The 10th Circuit has failed in understanding what the bodily differences between men and women are for.

    Chesterton had some thoughts on the subject:

    In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell that you do see the use of it, I may allow you to destroy it.”

    I wonder. If they had thought about this at all, do you think they would’ve come back?

    • #11
    • February 15, 2019, at 4:29 PM PST
    • 6 likes
  12. Mike Rapkoch Member

    While I agree completely, it is odd that Fort Collins should need such an ordinance in the first place. Old social norms used to be the means by which mores were enforced. With the loss of the customs of now extinct traditional communities with a shared understanding of right and wrong, we must now turn to the government to exercise its power to control the decline of decency. Patrick Deneen’s book Why Liberalism Failed, is worth reading as he explains how liberalism of all types has brought about the expansion of government in our times. Deneen argues that liberalism expands government through the belief that “the government is the only thing we do together.”

    On a lighter note, if women want to “share,” all they need do is get on the Grammy Awards show. This years version gave a whole new meaning to the term “boob tube.” We shut it off after 10 minutes. Besides, modern music proves that the world is dying. 

    • #12
    • February 15, 2019, at 4:40 PM PST
    • 11 likes
  13. Percival Thatcher

    Mike Rapkoch (View Comment):
    On a lighter note, if women want to “share,” all they need do is get on the Grammy Awards show. This years version gave a whole new meaning to the term “boob tube.” We shut it off after 10 minutes. Besides, modern music proves that the world is dying. 

    Turning the sound all the way down works wonders.

    • #13
    • February 15, 2019, at 4:42 PM PST
    • 6 likes
  14. KentForrester Coolidge

    Paul, that’s the best title I’ve ever come across on Ricochet. We could make a big success of this site if we had more titles like yours. How about “Women’s Rear Ends”? I could totally write a post on that. 

    As for the content of your post, just when I thought the Left couldn’t get any sillier, up comes this proposed legislation.

    Anyone who thinks that women’s breasts and men’s breasts are somehow the same is an idiot. Women’s breasts have always been not just baby feeding conduits, but also objects of men’s desires. The new law won’t change that.

     

     

    • #14
    • February 15, 2019, at 4:51 PM PST
    • 6 likes
  15. Roosevelt Guck Member

    With all due respect to the 10th Circuit, it’s not true that the stereotype is a product of “our society” (whatever that means). As a start, maybe the judge should read a few books or visit a couple of museums with sculptures from the most advanced periods of Ancient Greek history. People across the world and time have contributed to the way we think about feminine beauty. The point is that it’s a very old thing, and it’s a little silly for the judge to simply give it the back of her hand. From the perspective of the virtue of modesty, well, I don’t think “our society” originated that virtue either. At any rate, it won’t go below the waist. No judge would overturn a law prohibiting men from walking naked in the street—using the nonsense of stereotypes ingrained in “our” society as an excuse.

    Also, don’t people have the right to choose not to live in a nudist colony? And if they do have that right, why can’t this preference be embodied in the laws of their communities? What is wrong with that?

    Whatever the fate of this opinion is, I doubt that it will have much impact on Ft. Collins. It’s going down to 25 degrees tonight in Ft. Collins. Next week it’s going to be in the 30s during the day and in the teens at night. Better put on a coat.

    • #15
    • February 15, 2019, at 4:57 PM PST
    • 2 likes
  16. Basil Fawlty Member

    KentForrester (View Comment):
    How about “Women’s Rear Ends”? I could totally write a post on that.

    Fundamentalist!

    • #16
    • February 15, 2019, at 5:00 PM PST
    • 12 likes
  17. Aaron Miller Member

    Mike "Lash" LaRoche (View Comment):

    Thanks for keeping us abreast of this topic.

    It’s just another way those boobs out west can puff their chests at us before the whole system goes tits up.

    • #17
    • February 15, 2019, at 5:02 PM PST
    • 13 likes
  18. Bob Wainwright Member

    Reading the NR article and the dissent that was made in the case, it’s clear that Substantive Equal Protection is the culprit. Even the dissenter appears to accept the validity of this doctrine. The Equal protection clause was meant to restrict the executive branches of state governments, to prevent them from arbitrarily enforcing laws or from not enforcing them altogether. Understood in this original sense, the clause could never be used as a basis for overturning a law. But with substantive equal protection, courts have reinterpreted the clause so that it actually dictates the content of law itself. It now applies to the legislative branch, not just the executive, thereby giving courts the ability to invalidate laws based on the clause. There’s no end to where this could go. For example, State laws requiring progressive taxation could be declared in violation of the clause, because they unequally tax some citizens at different rates than others. 

    • #18
    • February 15, 2019, at 5:14 PM PST
    • 1 like
  19. GFHandle Member

    But it is all moot since it will be illegal to actually look at them. The male gaze and all that.

    • #19
    • February 15, 2019, at 5:15 PM PST
    • 14 likes
  20. Aaron Miller Member

    Aren’t these hippie judges old enough to remember the last time in American history women abandoned bras? It was a total flop.

    • #20
    • February 15, 2019, at 5:26 PM PST
    • 14 likes
  21. Unsk Member

    ” The male gaze and all that.”

    You know ol’ GF I get so confused sometimes because we are told so often men and women are the same but then someone has to go and point out how bad we men are! But..But.. if we men are so bad, are we not equal to the fairer gender? I can’t reconcile those points in my brain but maybe it’s just that evil “male logic” lurking in my head. 

    • #21
    • February 15, 2019, at 5:26 PM PST
    • 5 likes
  22. Manny Member

    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.”

    Earth to judges, have you seen men flip over female breasts? I would say you have. Have you seen anything remotely similar to women flipping over male breasts? Unless I’ve missed it, I have not. By any sane measure of empirical evidence, women’s breasts are objects of sexual desire.

    In addition, female breasts are erogenous. Male breasts, for the most part, are not.

    There is a difference between male breasts and female breasts, and so let’s not stray from several millennia of conventional mores.

     

    • #22
    • February 15, 2019, at 5:55 PM PST
    • 1 like
  23. Manny Member

    Aaron Miller (View Comment):

    Aren’t these hippie judges old enough to remember the last time in American history women abandoned bras? It was a total flop.

    Things sort of sagged out of place.

    • #23
    • February 15, 2019, at 5:58 PM PST
    • Like
  24. Henry Racette Contributor

    There, I’ve clicked “like.”

    Now I’ll go read the piece….

    • #24
    • February 15, 2019, at 6:34 PM PST
    • 4 likes
  25. Gary Robbins Reagan

    KentForrester (View Comment):

    Paul, that’s the best title I’ve ever come across on Ricochet. We could make a big success of this site if we had more titles like yours. How about “Women’s Rear Ends”? I could totally write a post on that.

    Butts?

    • #25
    • February 15, 2019, at 6:38 PM PST
    • Like
  26. The Reticulator Member

    Gary Robbins (View Comment):

    KentForrester (View Comment):

    Paul, that’s the best title I’ve ever come across on Ricochet. We could make a big success of this site if we had more titles like yours. How about “Women’s Rear Ends”? I could totally write a post on that.

    Butts?

    I’m in favor of posts on agricultural policy, aka corporate welfare. 

    Oh, that was spelled Butz. Earl L. Butz.

    • #26
    • February 15, 2019, at 6:45 PM PST
    • 1 like
  27. Django Member

    For some reason this post reminded me of the Onion headline from a while back: Area Woman Tired of Men Staring at Her Breast Implants.

    • #27
    • February 15, 2019, at 6:47 PM PST
    • 7 likes
  28. Henry Racette Contributor

    Paul A. Rahe: (quoting National Review) “… negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.”

    Since when has there been something negative about seeing women’s breasts as sex objects?

    Shoot, have I wasted most of my adult life?

     

    • #28
    • February 15, 2019, at 6:59 PM PST
    • 6 likes
  29. Scott R Member

    Professor Rahe, it’s customary for a picture to accompany a post here on Ricochet…

    • #29
    • February 15, 2019, at 7:03 PM PST
    • 12 likes
  30. Samuel Block Member

    Henry Racette (View Comment):

    Paul A. Rahe: (quoting National Review) “… negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.”

    Since when has there been something negative about seeing women’s breasts as sex objects?

    Shoot, have I wasted most of my adult life?

     

    Just wait til they try to de-sexualize everything south of the belt.

    • #30
    • February 15, 2019, at 7:07 PM PST
    • 1 like