Does lifting the combat ban for women make it easier or harder to reintroduce the military draft?

Here's a story explaining the new policy change and why it was done.

In the military, serving in combat positions like the infantry remains crucial to career advancement. Women have long said that by not recognizing their real service, the military has unfairly held them back.

No mention of the draft. When I first saw this story, I assumed it meant that it would be much more difficult, in the future, to bring back the draft. I cannot believe that the people would accept forcing women into combat. But now I'm thinking that removing this barrier makes it easier to restore the draft, because women won't really be forced into combat. With neutrally designed physical tests, no woman will be forced. These tests, keyed to what strong men can do, will exclude all but the most fit and motivated woman.

You don't need discrimination against women to filter out all the non-volunteers. And it will be more acceptable to Americans to force men and women into an institution that renounces any formal, express policy of sex discrimination. A male-only draft would raise objections, and a draft that includes women, but puts them in back up positions should be a problem both for women, because they are subordinated, and to men, because they are, because of their sex, more likely to be put in life-threatening positions.

***

I've been thinking about this problem quite a bit over the years as I teach the old Supreme Court case Rostker v. Goldberg, which involved a challenge to the requirement, introduced in 1980, that males register for the draft. The draft itself had ended in 1973, but President Carter thought we should be prepared for the possibility of a draft. He wanted to include both women and men, but Congress made it male only, which was challenged as unconstitutional sex discrimination. The fact that only men would be used in combat was the basis for upholding the discrimination:

In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.

"Men try harder, because they know that women want men who earn more."

"Women don’t because they know that men have different priorities, and because they want to quit the rat-race at some point and have kids, making their tolerance for high debt levels rationally lower."

Says Glenn Reynolds, reacting to this Inside the Law School Scam post about how law school — with its high tuition and iffy job market — is a worse deal for women than for men.

This is getting strangely close to the argument that used to be made for discriminating against women in law school admissions (or for excluding them altogether): Since women are less likely to fully use their legal education, we shouldn't give what could be a man's seat to a woman. Women were suspected of going to law school for ulterior reasons, such as to find a good husband or — crazy ladies! — because they are interested in the topic... intellectually.

"In the case of the male vegetarian, what may look like vegetarian or sexual orientation discrimination is really sex discrimination in the form of gender stereotyping..."

Says the abstract for a law review article titled "Of Meat and Manhood," which has led to a defamation and invasion of privacy lawsuit against the author:

New Jersey banker Robert Catalanello on December 28 sued Zachary Kramer, an associate dean at Arizona State University Sandra Day O'Connor School of Law....

The article cites former employee Ryan Pacifico's 2009 complaint against Catalanello, including a charge that he made numerous derogatory comments equating Pacifico's vegetarianism with homosexuality. "You don't even eat steak dude. At what point in time did you realize you were gay?" he said, according to Pacifico's complaint....

"Catalanello harassed Pacifico not because Pacifico is vegetarian, but because Pacifico was not sufficiently masculine," reads one passage that Catalanello cited. "The key here is that vegetarianism acts as a proxy for effeminacy."

Defamation? Presumably, Catalanello disputes Pacifico's allegations and doesn't like the way Kramer, in at least one part of his article, presents the allegations without saying something like "according to Pacifico's compliant."

Here's the "Meat and Manhood" article. More from the abstract:

[Current doctrine says] that an employee cannot raise an actionable theory of sex discrimination to “bootstrap” protection for an unprotected trait.... By focusing on the male vegetarian case study – which involves allegations of vegetarian, sexual orientation, and gender-stereotyping discrimination – the Article argues that sex discrimination often manifests as other forms of bias.

That is, the law doesn't give special protection to you because you're a vegetarian, but it does let you sue for sex discrimination. So the litigant tries to present anti-vegetarian animus as a matter of gender. That's an interesting problem of employment discrimination law, but think about why the courts don't approve of this "bootstrapping."

(Via Taxprof.)

Firing a woman because you find her "irresistably attractive" is not sex discrimination.

Said the Iowa Supreme Court (unanimously).

An attorney for Fort Dodge dentist James Knight said the decision, the first of its kind in Iowa, is a victory for family values because Knight fired Melissa Nelson in the interest of saving his marriage, not because she was a woman....

Nelson, 32, worked for Knight for 10 years, and he considered her a stellar worker. But in the final months of her employment, he complained that her tight clothing was distracting, once telling her that if his pants were bulging that was a sign her clothes were too revealing, according to the opinion....

Nelson filed a lawsuit alleging gender discrimination, arguing she would not have been terminated if she was male. She did not allege sexual harassment because Knight's conduct may not have risen to that level and didn't particularly offend her, Fiedler said.

If DOMA is unconstitutional, what kind of past employee benefits will need to be paid?

Don't assume the effect of a new decision will be only prospective. Consider this report of a ruling by the Judicial Council of the Ninth U.S. Circuit Court of Appeals:

... Christopher Nathan, 39, of San Francisco, a law clerk for U.S. Magistrate Maria Elena James, sought [health insurance] coverage for his spouse, Thomas Alexander, 40.... [H]e was turned down by the Administrative Office of the U.S. Courts because the 1996 law bars federal recognition of same-sex unions.

In April, Chief U.S. District Judge James Ware said the denial violated the federal court's rules against discrimination based on sexual orientation and gender, and ordered the court to reimburse Nathan for the costs of buying private insurance.

The Judicial Council, the final authority in the administrative review process, went a step further in this week's order and said DOMA has been held unconstitutional by a San Francisco federal judge in another employee's case. The three-judge panel ordered the court [that is, his employer] to determine how much it owes Nathan and then pay him within 10 days.

"The senior employee knows that one of the other employees doesn't like country music, so he tells her, 'If you don't date me, it's going to be country music all day long.'"

"Does that make the senior employee the supervisor?" — asked Chief Justice John Roberts.

"A federal jury believed the University of Iowa’s law school illegally denied a promotion to a conservative Republican because of her politics."

"However, jurors said they felt conflicted about holding a former dean personally responsible for the bias. They wanted to hold the school itself accountable, but federal law does not recognize political discrimination by institutions."

[Teresa]Wagner was turned down despite enthusiastic praise for her interview performance by members of the faculty appointments committee and members of the law school administration. Not all on the faculty were supportive, however. Carolyn Jones, the law school dean at the time, said she rejected Wagner for a faculty position because of opposition within the faculty. According to testimony, Jones said “she always adopts the faculty’s recommendations.”

Faculty members testified that they opposed hiring Wagner because she had performed poorly in the job interview. But an associate dean expressed concern in an email that Wagner might be opposed by professors who “so despise her politics.”

"Wagner is a Republican who has worked for anti-abortion organizations."

Senator Schumer "is known to cajole, nag, and outright pester his staff" about getting married and having babies.

The NYT seems to be celebrating the man for using his position in the workplace to harass underlings about their private lives:

Cupid’s arrow lands where it will, but many of the couples say that Mr. Schumer, a New York Democrat, has an unusual knack for guiding its journey. He keeps close track of office romances, quotes marriage-friendly Scripture (“God to man: be fruitful and multiply”), and is known to cajole, nag, and outright pester his staff (at least those he perceives as receptive to such pestering) toward connubial bliss.

Religion too! He sounds like the Steve Carrell character in "The Office" — the inappropriate boss, who doesn't know the normal boundaries.

Forget Master of the Senate. This is the Yenta of the Senate.

“What’s the holdup?” the senator asks couples who are dillydallying on an engagement. “Did you get a ring yet?” Other could-be-marrieds receive a simple instruction: “Get moving!”

The NYT thinks this is cute, but you know damned well that if a conservative politician were doing this he would be accused of making the workplace a hostile environment.

[H]is focus, like many a politician’s, never strays far from his legacy: first comes Schumer Marriage, then come Schumer Babies.

“Have kids; have a lot of kids,” Mr. Schumer, who has two daughters, is known to intone. “Start early and keep having them.”

Jeez, he's appropriating their marriages and their babies.

Sometimes, Mr. Schumer greets a former staff member, “So, is your wife pregnant again?” Other times, he does not even bother with the question. One former aide, who asked not to be named, recalled seeing the senator bump into a recently married couple, both Schumer alumni. “He just stared down at her midsection and said, ‘Well?’ ”

Staring at a woman's belly as a way to convey the desire that she get pregnant? War-on-women warriors would be calling for his head if he were a Republican.

“Our staff is a family,” Mr. Schumer said, his voice often taking a paternal tone. “I want them to be happy. I get worried that they’ll be lonely. So I encourage them. If I think it’s a good match, I try to gently — as gently as I can — nudge it.”

Picture Steve Carrell saying that directly into the camera.

“It brings him joy,” said Risa Heller, a former communications director, one of more than a dozen former aides who recounted his sayings, often while imitating his voice. “He picks good people to work for him, and when they pick each other, it’s even better.”

You want to get ahead in the Democratic Party power structure? Submit to the matchmaking... and make some babies. I'd like to know more about how this picking of "good people" is carried out. Are good looking women chosen to provide wives for the men? Do the women continue climbing in the party hierarchy or do they retreat into babymaking and husband supporting?

I'd like 10 years of data.

"A veteran US law-enforcement official has filed a blockbuster discrimination lawsuit against Homeland Security Secretary Janet Napolitano..."

"... charging she pushed him aside to make way for a less-qualified woman who’s 'enjoyed a long-standing relationship' with the anti-terror chief."

The lawsuit... identifies the woman as Dora Schriro, who was later appointed by Mayor Bloomberg as commissioner of the city Department of Correction, a post she still holds.

The court papers also allege that Suzanne Barr, Napolitano’s chief of staff at Immigration and Customs Enforcement, has engaged in “numerous” acts of “sexually offensive behavior” intended to “humiliate and intimidate male employees.

Barr’s alleged acts include calling one man “in his hotel room and screaming at him that she wanted his ‘c--k in the back of [her] throat.’ "

ADDED: Blogger Debbie Schlussel broke the story — and is irked that major newspapers didn't credit her.

"A few jurisdictions have laws against 'attractiveness discrimination.'"

"Try to guess which ones, then click on the link to see if you’re right."

2 photographs from this week in Wisconsin politics.

(The first photo, by me, is from the People's Brat Fest. The second photo, by Meade, is from an equal pay press conference.)

"If I could turn back time, I would have not chosen Gloria Allred as my lawyer."

Regret about choice of lawyer expressed in Cher lyrics.

Via Instapundit, who notes that the client Debrahlee Lorenzana learned what was always mind-crushingly obvious, that Gloria Allred is in it to get attention for herself.

But then, so was Lorenzano. It takes one to know one is not always true. Look at the photo at the first link. Was Lorenzano fired because of her looks or because she declined to dress in a manner appropriate to the business in which she was employed?

"Of all the things Walmart is best known for (low prices, litigation, the demise of mom-and-pop stores), an overnight stopping place for RVers is not among them."

It's not? I think it is. That sentence is from a (long!) NYT article about renting an RV and driving all over the western United States.

Somehow litigation is a stronger association with Walmart. Who knew? And I'm a lawyer. I mean, I know Walmart has been sued. (There was that unsuccessful effort to make a class action out of the lack of advancement of female employees.)

Speaking of law, how can you write a huge NYT article about RV vacationing in the U.S. and not mention Clarence Thomas? Here's an article to make up for the gap:

"We've been in dozens of Walmart parking lots across the country," said Mrs. Thomas. "Actually it's one of our favorite things to do if we're not having to plug in and we've got enough electricity ... but you can get a little shopping in, see a part of real America -- it's fun."

When Justice Thomas is recognized, "it sort of puts a damper on things... It's not that there's anything bad... What actually happens is we kind of get mobbed. We had to leave one site that, they got so friendly... they looked forward to seeing us every year that there'd be 20 - 30 people waiting for him to come out of the bus, so we just had to move on."

She says the tough economy isn't going to stop a lot of campers, "Campers are very resilient... if gas goes up, or the cost of camping changes, or if it's difficult to fit it in, they're going to find a way to vacation. There's a whole range of campers -- from tents to pop-ups to fifth wheelers... they're people who love their family, they love the simple life, they love to get away but not spend a whole lot of money ... it's the best of America out here."

What if the "War on Women" is a War of Women... on men?

A question that occurred to me while reading this Wall Street Journal column by Carrie Lukas.

[P]olicies sold as protecting women can be used to bludgeon men, and they should spur greater skepticism of the idea that women need bigger government to succeed.

The War on Women rhetoric may be intended to derail specific candidacies, but it also derails needed public-policy debates. With trillion-dollar deficits, we need to make tough choices about funding priorities. Calling attempts to control government's costs an assault on women will only make deliberations less productive.

For the first time, a Supreme Court opinion uses the word "feminist."

The case is Coleman v. Court of Appeals of Maryland, which came out this year on March 20th. There are 19 other Supreme Court opinions where the word "feminist/s" appears, but only in the name of an entity like "the Feminist Majority Foundation" or the "Feminists for Life of America" or (once) in the name of a cited law review article.

The article is "The Victim In a Forcible Rape Case; A Feminist View," cited for the proposition that "Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage," in the case that says it's cruel and unusual punishment to impose the death penalty for rape. Interesting, isn't it, that it took "A Feminist View" to see that "Rape is very often accompanied by physical injury"? Often? Accompanied? Rape is a physical injury! "Can also inflict mental and psychological damage"?! Can? Do you really have to hedge it?

Anyway, the actual use of the word "feminist" occurs in a dissenting opinion written by Justice Ginsburg. She is explaining why she thinks that Congress had power under §5 of the 14th amendment to enact the self-care provisions of the Family and Medical Leave Act of 1993. To fit the §5 doctrine, the law needs to be portrayed as some kind of remedy for a 14th Amendment rights violation, but both males and females use sick leave, and getting sick leave doesn't seem to be about alleviating unconstitutional sex discrimination.

But Ginsburg says the law had roots in a California effort to require pregnancy or childbirth leave to women:

The California law sharply divided women’s rights advocates. “Equal-treatment” feminists asserted it violated the Pregnancy Discrimination Act’s (PDA) commitment to treating pregnancy the same as other disabilities.... “Equal-opportunity” feminists disagreed, urging that the California law was consistent with the PDA because it remedied the discriminatory burden that inadequate leave policies placed on a woman’s right to procreate.

So the first time a Supreme Court Justice uses "feminist," she's talking about 2 types of feminists, the "'equal-treatment' feminists" and the "'equal-opportunity' feminists." Ginsburg refers to the debate between the 2 factions about whether gender-neutrality or special accommodations better served the interests of women. For example Prof. Eleanor Holmes Norton testified that if employers "provide something for women affected by pregnancy that they are not required to provide for other employees [it] gives fodder to those who seek to discriminate against women in employment."



By the way, the word "feminism" only appears in one Supreme Court opinion, and that was back in 1968, in a case called Ginsberg v. New York. (Ginsburg... Ginsberg... just a coincidence.) But the word appears only in quoted material in the appendix to a dissenting opinion by Justice Douglas (who didn't agree that the state could prosecute a man for selling a "girlie" magazine to a minor). Douglas quotes J. Rinaldo, "Psychoanalysis of the 'Reformer'":

In our own day we have reached another of those critical periods strikingly similar in its psychological symptoms and reactions, at least, to decadent Rome. We have the same development of extravagant religious cults, Spiritism, Dowieism, "The Purple Mother," all eagerly seized upon, filling the world with clamor and frenzy; the same mad seeking for pleasure, the same breaking and scattering of forms, the same orgy of gluttony and extravagance, the same crude emotionalism in art, letter and the theater, the same deformed and inverted sexual life.

Homo-sexualism may not be openly admitted, but the "sissy" and his red necktie are a familiar and easily understood property of popular jest and pantomime. It is all a mad jazz jumble of hysterical incongruities, dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures. Through it all runs the strident note of puritanism. As one grows so does the other. Neither seems to precede or follow.

Crazy stuff. Dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures....

Man, I need to do word searches in the Supreme Court opinions more often.

Dog dinners. I did not go looking for that.

"To have just a clear, definitive EEOC ruling that Title VII protects transgender people gives us so much more certainty and security and solid, reliable legal protection."

"For decades now, advocates and scholars both have been saying Title VII should be applied to protect transgender people... And now, to have the EEOC confirm that, 'Yes ... Title VII should and does protect transgender people when they're discriminated against because they've changed their sex or intend to change their sex or because they're gender nonconforming. That is sex discrimination.' That is really an important capstone.''

Link.

"Tonette taped American #Idol. We are watching it now. I like the 80s music!"

A tweet from Gov. Walker. I'm reading his Twitter thread, looking for some links to material explaining/justifying all that legislation he just signed. In particular, I'd like to know more about the repeal of the 2009 Equal Pay Enforcement Act, which I referred to a couple posts ago.

In the comments there, I was asked to analyze the new law, and I looked around a bit and only found criticism of the change. HuffPo is writing about it. Walker's recall challengers — Kathleen Falk and Tom Barrett — are lambasting him predictably. Eventually, I found something, but not before I got sucked into Walker's fascinatingly banal Twitter feed (which I once compared to "Jim's Journal").

Also in the recent Walker Twitter feed:

Up early for a haircut then out enjoying the beautiful sunshine! What a beautiful day the Lord hath made....

Sadly this is not a good Fri for the #Brewers....

Spent am signing bills in Milwaukee office then off for Good Friday and later for #Brewers Opening Day @ #MillerPark....

I drink several bottles of #cranberry juice each day. Glad our output is up 11% according to USDA...

This is charming... unless you hate the guy, as many do. In which case, I assume you're jeering or beating your head against the wall. He needs to explain these new laws persuasively. His opponents get so far out in front of him. He reminds me of George W. Bush, who seemed to believe that decent people would give him credit for doing the things he believed were right. Meanwhile, his antagonists controlled the narrative.

"I'd like to finish the week without Scott's dick in my ear, but until captain douche-nozzle is recalled..."

"I'll drink and stew and become more resolute in my hate directed at this prick."

A sample of the discourse over in the Isthmus forum, where Madisonians bemoan the newly signed Wisconsin law that repealed the 2009 Equal Pay Enforcement Act.

MEANWHILE: In the comments section of last night's post "The Democrats' War on Women," a couple commenters engage in sexist wordplay about Lt. Gov. Rebecca Kleefisch (who, like Walker, faces recall). A commenter referred to "Walker and his 'minions'" and chickenlittle quipped "What about all the filly minions like Kleefisch? Do you want to filet them too?" and leslyn said "How do you filet a filly??" This portrayal of a woman as meat called to mind the infamous Hustler magazine cover (showing a woman's body fed through a meat grinder). I said:

"How do you filet a filly??"

Said, about Rebecca Kleefisch, by a female commenter who probably regards herself as a feminist. That image is one of sexual violence.

You compare an adult woman to a juvenile animal. You refer to slicing into her dead (animal) body, prepping her for cooking.

But the woman you revile is conservative, so maybe you didn't notice.

If you think you are a feminist, you are a fake one, really a lefty or a Democrat, and your partisan politics comes first.

Go stand over there will Bill Clinton.

Leslyn defended herself this way:

Oh for goodness sake, Althouse, "how do you filet a filly" was A PLAY ON WORDS on CHICKENLITTLE'S comment. Which you'd have recognized were you not humorless.

And get off the "feminist" rant already. To use a METAPHOR, you jump both sides of the fence.

My response:

I saw the joke. That is was a joke is irrelevant to my point.

Would you like me to Google "sexist jokes" for you?

Try making racist jokes out in public and see how far "it was humor" gets you.

Picture a filleted young horse. Picture a woman in a similar condition. Picture a particular named woman in that condition.

Now, is that funny?

Remember when Rush Limbaugh portrayed Sandra Fluke as a prostitute and said we should have sex tapes of her on the internet?

How funny was that?

Now... go on with your explanations about why you are really not a hypocrite.

Alternatively, concede. It might be the better option.

Being a feminist is hard. You have to be consistent. Take the challenge.

How the philosophers discriminate against women with dim lights, drinks, and an informal atmosphere.

At the annual meeting of the American Philosophical Association, "where most philosophy job interviews take place, part of the hiring process will take place at 'the smoker,' at which candidates and search committees mingle over drinks, with hiring committees at tables around the room."

A recent blog post painted a disturbing picture of the event... The anonymous post, on the blog "What Is It Like to Be a Woman in Philosophy?," said: "APA interviewing also means spending several nights up late, standing in uncomfortable shoes in a hotel ballroom, sipping cranberry juice while talking to tipsy prospective employers at that monstrosity we call the ‘smoker.' "

The poster, who said she is pregnant, complained about the informal interviews, the drinks and the dimly lit room. She said the setting of the “smoker” was overwhelming proof of the maleness of the profession, and the one time she was at the smoker before, she was hit on. 

If you structure an event to be very casual and informal, it has a disparate impact on people who feel more comfortable in a formal structure. When I first glanced at this article, I thought the problem was literally the smoke in the room, which has a genuinely unfair impact on pregnant women. But the complaint is about the reception, the opportunity to mingle, which, we're told "creates particular problems for women." But what are these "particular problems"? Are there not "particular problems" for all sorts of people, as well as particular advantages for others? And by the same token, doesn't a formal, well-lit, hiring committee with one interviewee situation create problems for some and advantages for others? Is the line between who's disadvantaged and who's advantaged really the line between female and male?

Jennifer Saul, head of the philosophy department at the University of Sheffield in the United Kingdom... said she was glad that the issue was being debated. “It is an incredible throwback to previous era. Even the name is indicative of that. I think it is a humiliating ritual,” she said.

Saul reports that “all the women I talk to are appalled” by "the smoker." I wonder if men are appalled too. Why don't we see would-be philosophers who are male expounding on their difficulties negotiating a cocktail party? Is it because they are not troubled, or is it because they are even more discriminated against? Do they dare write about their feelings of awkwardness and intimidation? The males suck it up and venture forward, I suspect. The women, in choosing to make an issue of female sensitivity, imagine they are advancing the cause of women. But are they?

ADDED: "Smoking... the symbolic equivalent of destructively appropriating the entire world."

Natalie Johnson says Macy's fired her for telling a male he could not use the women's dressing room.

The customer was shopping for women's clothes...

“I had to just be straightforward and tell him, ‘You’re a man,’ and of course that … really got him steamed,” Johnson told KSAT.

The teenager’s friends argued with Johnson, reportedly telling her that Macy’s allows transgender people to change in the dressing room of the gender they identify with.

“I made my choice the other day,” Johnson said. “I refuse to comply with this policy.”

She's trying to say that because her opinion is based on religion, she's been discriminated against. I don't see how that can work. It's not her store.