Scalia and Levels of Scrutiny


This is the third in a series of posts examining some of the statements made by Justice Scalia in a long interview with Jennifer Senior in New York magazine. Once in a while, Scalia has a nugget of truth amid the nonsense, like this one:

What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.

A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”

If there’s a reasonable basis for not ­letting women do something—like going into combat or whatnot …

Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.

The nugget of truth is his disdain for different levels of scrutiny. He’s right about that. My position is that every law passed by Congress and challenged for constitutionality should be viewed under the strict scrutiny standard. In every case when the government regulates our conduct, they should have to show that there is a compelling state interest at stake and that the legislation being challenged is the least restrictive means of achieving it. Sometimes that’s a very easy case to make. No one could seriously argue that there isn’t a compelling interest in preventing people from dumping toxic waste into a river, for example. That’s an easy case. Others are much more difficult, as they should be. But the whole idea of levels of scrutiny, the progeny of the infamous Carolene footnote, should be done away with.

I think he’s also right about this:

Let’s talk about the state of our politics for a moment. I know you haven’t been to a State of the Union address for a while, and I wanted to know why.
It’s childish.

When was the last time you went to one?
Oh, my goodness, I expect fifteen years. But I’m not the only one who didn’t go. John Paul Stevens never went, Bill Rehnquist never went during his later years. Because it is a childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean, there are all these punch lines, and one side jumps up—­Hooray! And they all cheer, and then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit there like bumps on a log. We can clap if somebody says, “The United States is the greatest country in the world.” Yay! But anything else, we have to look to the chief justice. Gee, is the chief gonna clap? It didn’t used to be that bad.

Hear, hear. And it isn’t just the Supreme Court justices. No one should watch it. It’s a stump speech full of empty platitudes and stupid applause lines and it is absolutely meaningless as anything other than political theater.

Comments

  1. dogfightwithdogma says

    But there are some intelligent reasons to treat women differently.

    I am having trouble with this statement. Perhaps someone could educate me as to the reasons that Scalia is speaking of here. What intelligent reasons are there for treating women differently under our laws? I am frankly surprised that no one has taken Scalia to task for this statement. At the very least, I am surprised the interviewer did not followup and ask Scalia to list the reasons he had in mind.

  2. says

    —Perhaps someone could educate me as to the reasons that Scalia is speaking of here. What intelligent reasons are there for treating women differently under our laws?—

    The only difference that comes to mind involves childbirth and breastfeeding, but even those aren’t really ‘treating women differently’. If a man has a medical issue that makes it difficult for him to stand for long periods of time or otherwise require light duty, I fully expect him to receive that light duty.

    There are people who say providing a place for women to pump in private to breastfeed is ‘treating women differently’. I say – well, if we didn’t treat women’s chests as sexually obscene objects, it wouldn’t be an issue now, would it?

    So, eliminate the unequal treatment, and well, you can eliminate the ‘unequal’ treatment.

  3. cry4turtles says

    Why yes women and men are different!! Men have the hallowed superior upper body strength. Therefore, as a species we exploit them, giving them extra heavy artillery to carry into war, or bundles of shingles to hump up to the roof, or sheets of steel to tack onto the bridge. And then comes the real payoff…in 20 years their backs are so broken down that they can’t even bend over to pick up a feather. Cue the role reversal. Now I carry the 50 pound bag of dogfood in to the house, and put up the hay, and move the furniture on cleaning day. Take that you big strong men!

  4. Ryan Jean says

    Perhaps someone could educate me as to the reasons that Scalia is speaking of here. What intelligent reasons are there for treating women differently under our laws?

    The one example he did give, as attested in the quotes above, was combat, which has been quite a hotly-debated topic in the last few years.

    The most common arguments against women in combat roles are typically some vague, amorphous claims of disrupting the ability of the unit to function (also made against gays and lesbians), or some claims of their fitness being lower. On the first, just like with gays and lesbians, the argument is false. We have extensive evidence of this, both from our own military and from militaries worldwide.

    On the second, it is a little harder and needs to be unpacked more. For example, an argument in favor is that with the nature of war, any unit in the field can and often does find itself in combat with no warning, and its designation as not a “combat arms” unit matters nil. Similarly, the amount of stuff needed to be carried as a Soldier’s “Battle Rattle” is not terribly difficult and most men or women in a reasonable state of fitness can do so well. So, in general for combat, the argument fails. But what about a specialty status such as “Army Ranger” and “Navy Seal” that is highly selective and requires a level of fitness that most males fail at as well? I believe Scalia would argue that the rigorous requirements of such a program would be prohibitive of so many women that codifying it isn’t discrimination. I would disagree, though, as inevitably some women can meet that standard and ought to be allowed the chance. You’re not lowering the standards, you’re making them universal.

  5. pacal says

    Of course Scalia isn’t a fan of different levels of scrutiny. It is obvious from his jurisprudence that he does not believe in strict scrutiny for all legislation. In fact I doubt he has any principled approach to legislation at all. In fact aside from his phony “originalism”, which falls flat when it comes to things he favours like Corporations.

    Scalia resolutely opposes any kind of scrutiny that would force judicial careful review of legislation he likes. Thus laws regulating sexual contact, including incredibly masturbation are in his eyes not subject to serious judicial scrutiny at all. Whereas things he doesn’t like, like “Obamacare” are subject to “strict” scrutiny in his eyes. And Scalia distorts and obfuscates like made to excuse his judicial scrutiny.

    I am amused that Scalia does not for a moment realize that “Originalism” is indeed a “thumb on the scale”, or that if “originalism” is indeed the “true and correct” judicial interpretation philosophy than there is no excuse NOT junking the entire US Constitution has being fatally out of touch with the present. I am also amused that he thinks “strict scrutiny” or any other kind of scrutiny it seems is some how a distortion of justice.

  6. says

    But there are some intelligent reasons to treat women differently.

    I am having trouble with this statement. Perhaps someone could educate me as to the reasons that Scalia is speaking of here.

    Speaking as a guy who has had to compete with men and women in order to advance professionally in the USMC for a long time now, I might be able to shed some light.

    The physical fitness standards for women has always been considerably easier for women than is has been for men. In 15 years of USMC service, I’ve yet to hear a complaint from a woman about such unequal treatment.

    I used to wonder why it is that way. When I was newer, I complained about it just like every other Marine (well, maybe not quite so much). Then at some point during my career I was part of a training event during which many differences were explained. And they were physiological differences such as women having a different center of gravity and body fat allocation. I don’t remember all the details (this was years ago), but I remember that I was convinced enough that I saw no need to commit the entire thing to memory. I was sold – we are different.

    From that point forward I’ve been comfortable in the knowledge that men and women are built significantly different, and that these differences manifest themselves in some very consistent ways. The USMC has been trying for decades (with futility) to “equalize” the PFT, with “equalization” defined as crafting it so that the amount of men and women who pass/fail is roughly equal. They’ve tried using different exercises – for example men do pull-up’s, women do flex-arm hangs, but the result has usually been that women have had a really easy time scoring high. whereas for the men it isn’t quite so easy.

    But when it comes to women having straight-up slower standards for run times… that’s a head-to-head comparison and there’s no getting around the reality that the standard isn’t *different*, it’s simply lower. That’s just a cold fact.

    I assume all those here who see no difference between men and women other than upper body strength and childbirth would strongly advocate that women should take the exact same test with the exact same pass/fail and 1st/2nd/3rd class standards that I take. Exact same standards? Can I get an amen?

    Because I can tell you that if your life depends on whether or not the Marine next to you can drag your crippled ass (and your gear, and their gear) from where you’ve fallen to the nearest safe zone, you’re not going to be worried so much about equality. You’re going to be worried about capability.

    Here’s the kicker… if women were held to the exact same standards as men, there would be far fewer women in the USMC. And then there would be a cacophony of complaints that there’s not enough equal opportunity for women.

    But if the standard is “adjusted” to compensate for those very real differences, then you’ve lowered the overall standard and capability of your force in the name of equal opportunity. And you’ve also forfeited any claim you have to being in favor of equal treatment. (If I run a 20 minute three-mile, I score 92 on the run – if a woman does so, she gets a perfect 100. That’s not equal.)

    So how’s that for a predicament? You can either stand in favor of equal opportunity and support unequal treatment of men and women, or you can support full equality and repudiate the equal-opportunity measures women have fought so long and hard for.

    What you cannot do with intellectual consistency is support both. One has to give.

  7. Reginald Selkirk says

    I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

    Scalia sez :Let four year olds vote.

  8. says

    “Once in a while, Scalia has a nugget of truth amid the nonsense…”

    And, once in a while, a pile of horseshit still has edible corn or oats in it; those who have an interest in sifting the shit may do so, I’ll decline the invitation.

  9. nathanaelnerode says

    “Here’s the kicker… if women were held to the exact same standards as men, there would be far fewer women in the USMC. And then there would be a cacophony of complaints that there’s not enough equal opportunity for women.”

    On the other hand, by the same token, if men were held to the same standards as women, there would be ZERO fighter jet pilots. Look it up. They’d *all* be women. For *really* solid physiological reasons!

    So, y’know, in some utopian future, maybe we’ll have that. But meanwhile, the Air Force bends over backwards to keep male fighter pilots, so the Marines should just as well bend over backwards to include more women.

  10. says

    So, y’know, in some utopian future, maybe we’ll have that. But meanwhile, the Air Force bends over backwards to keep male fighter pilots, so the Marines should just as well bend over backwards to include more women.

    But see, here’s the thing… if all fighter pilots in the USAF were women, and if that were true for solid physiological reasons… I wouldn’t complain. Because I understand that in the military, “equal opportunity” is nothing more than a euphemism for inequality.

    So how about we make a deal, eh? How about we have actual equality? All prospective fighter pilots must meet the exact same standards, and all Marine recruits and Officer candidates must meet the exact same standards as well. Deal?

    Or don’t you support equality?
    Because you’ve just made a clear statement that what you’re looking for is not equal treatment, it’s *special* treatment.

    Which is fine – you can advocate for special treatment. Just be honest about it.

  11. lofgren says

    So, y’know, in some utopian future, maybe we’ll have that. But meanwhile, the Air Force bends over backwards to keep male fighter pilots, so the Marines should just as well bend over backwards to include more women.

    That makes no sense.

  12. Michael Heath says

    nathanaelnerode writes:

    . . . if men were held to the same standards as women, there would be ZERO fighter jet pilots. Look it up. They’d *all* be women. For *really* solid physiological reasons!

    Yeah, look it up! I can google and confirm that the Earth is 6000 years old! Sheesh.

    If you’re going to make an extraordinary claim, then you nathanaelnerode have the obligation to present extraordinary evidence validating your claim is true. So, a credible citation is requested.

  13. doublereed says

    Well, but even so, that discrimination in the military, whether it happens or not, should pass a strict scrutiny test. So I don’t see what the problem is.

    I personally am skeptical of sexism in the military because of capable militaries like Israel which has plenty of women.

    But it shouldn’t matter. You can make arguments that racism, homophobia, or sexism is allowed under certain exceptional circumstances, you just have to present your case.

  14. eric says

    @7:

    (If I run a 20 minute three-mile, I score 92 on the run – if a woman does so, she gets a perfect 100. That’s not equal.)

    The fundamental problem here is that you don’t need a score at all, yet you have one. You need minimal capability-based criteria. Everyone who passes them, passes. That’s it. Sure, being able to run three miles in 19.25 is better than being able to run it in 19.55. But do we care about the difference if all marines are expected to be able to run it in 20 minutes? Do we really want to use such scores to promote people to leadership positions or make other career decisions? C’mon, physical fitness hasn’t been considered a good criteria for leadership since, what, the middle ages? So why create a system where the more physically fit you are above some needed minimum, the better you’re considered?

    What I see here is the military going through something analogous to university admissions. You’ve got a lot of people who would meet any reasonable set of obective criteria. You need some way to distinguish them. So you create some unreasonable, competitively-based criteria just to have something to help you prioritize all those qualifying candidates. And then the women lose (in this case), because your competively-based physical criteria all happen to favor the humans who have been naturally subjected to low-level doses of steroids every day since puberty.

    What you should be doing is saying everyone who qualifies as fit enough, qualifies as fit enough. Period. Then use different, more relevant criteria – such as education or skills – to rack and stack them.

  15. says

    eric,

    I appreciate you comments, but you’re making a lot of statements that run contrary to basic military fundamentals.

    C’mon, physical fitness hasn’t been considered a good criteria for leadership since, what, the middle ages?

    This statement applies if you’re a scientist, a librarian, a lawyer… but if you are claiming that this holds true for the military… let me just say that it’s clear you’re not familiar with the military. Physical Fitness has been considered a military leadership fundamental since the beginning of recorded history.

    To put it in context… after 13 years in the Corps, we no longer have to qualify with the rifle. We’ve fired it enough times that the USMC basically trusts that we know what we’re doing by this point. But they will test my fitness until I retire, no matter how many years I serve or how old I get. If I stayed in for 30 years, I would be 56 when I retired, and I assure you that I would still be taking PFTs/CFTs each year until then.

    I could go on, but I hope you get the point. Physical Fitness isn’t just considered an important leadership trait, it’s considered an essential, indispensable one.

    (Incidentally, I wish it wasn’t. I’ve never been the most athletic guy and I have had to work 3x harder than most other folks just to keep up.)

    You’ve got a lot of people who would meet any reasonable set of obective criteria. You need some way to distinguish them. So you create some unreasonable, competitively-based criteria just to have something to help you prioritize all those qualifying candidates.

    Fitness is only one component of a Marine’s composite profile. There are other. The only reason I brought fitness us specifically is because its the clearest, least disputable manifestation of female privilege in the military today. But I can give you another example…

    About 10 years ago I was with a unit. It was a top-heavy unit (MARFORSOUTH) and we all went out running as a group each Friday. Cadence would usually get called by the junior guys. We had a female Captain complain about a cadence that was being called out, and the Colonel passed word that the cadence was no longer to be used. Why? Because a single female was offended by it.

    I can assure you that if a male – any male – had communicated such a sentiment, he would’ve been ridiculed and told to “shut up and color”. He probably would’ve been laughed at. He certainly would not have been accommodated. But this particular lady basically was offended by everything – super delicate – and the unit bent over backward to ensure that she was pandered to at all times. Because god forbid we ever get an EO complaint!

    Ready for the punch line? The offending cadence was as follows:

    “Little yellow birdie with the little yellow bill
    Landed on my windowsill
    Lured him in with a piece of bread
    Then I smashed his little head”

    I generally hate giving anecdotal support to my point, but I wanted to be clear that the PFT issue isn’t the only instance of institutionalized sexism and female privilege in the military today. There are plenty more examples. But these two should be enough.

    And notice… listen carefully!… to the deafening silence when instances of female privilege are brought up.

    Ryan Jean @2 – Has you question been answered?

  16. Ryan Jean says

    kacyray @17, I don’t remember asking any question, although it appears my comment @5 was what led the thread into a discussion of only combat-worthiness.

    I’m in the Army now. Have been for quite a few years, all of it as an Officer. I pass my PFT every few months and move on. I don’t consider Physical Fitness an indispensable quality of leadership per se, but the discipline it takes to stay fit is a leadership trait (especially true since I loathe exercise) and a baseline level of fitness makes sense for the tasks we do in the military at home and abroad.

    I think that if the goal is to maintain a reasonable, achievable measure of fitness for male bodies vs. female bodies, as embodied by the concept of using that fitness as a partial leadership proxy, that differing scoring metrics make sense. This is how the military, in general, uses Physical Fitness.

    If, on the other hand, the issue is that in a particular situation you need to be able to move a 200 lb body 5 kilometers in 2 hours to an extraction point while taking fire, the standard needs to shift from “reasonable display of discipline by staying in shape” to “this person is able to do the task while that person is not.” This is why I’m not an Army Ranger (I had the opportunity to go years ago if I could raise my PFT scores, but couldn’t do it in time and wasn’t really that committed to trying), but by that very same token I know some women who could easily have bested many actual Rangers who weren’t eligible to try because of what parts were or were not between their legs.

    TL;DR — If the fitness necessary to achieve a specific physical goal isn’t the point, then such a standard being different for men and women makes sense as it is being realistic about common body-type differences. If being able to achieve a specific physical goal IS the point, then have a single standard focused on that and let those who can achieve it be recognized regardless of sex. Either way, I don’t think Scalia has created a defensible position for women to be excluded from combat or combat jobs.

  17. says

    I can assure you that if a male – any male – had communicated such a sentiment, he would’ve been ridiculed and told to “shut up and color”. He probably would’ve been laughed at. He certainly would not have been accommodated.

    It seems to me that this is the real problem; not that women can communicate such a sentiment without ridicule.

    That sort of attitude is why I didn’t join the military when I had the chance (I’m male, in case it’s important).

  18. says

    Ryan Jean @18:

    My mistake! The question I was addressing came from dogfightwithdogma @1

    What you may not have gleaned from all of my comments regarding female privilege in the military is… I actually don’t have a problem with it. I mean, it’s a bit aggravating at times, but I understand the source of it and why it is necessary in some cases. I also have no issue with women in combat roles… but I do think that they need to be able to meet the same standard of capability as men. In war, there are no different metrics. There is only you *can* survive or you *cannot* survive. (And as you know, being able to survive isn’t enough. You have to be able to help your brethren-in-arms to survive as well).

    For someone like yourself, or even myself (a mobility officer), physical fitness probably isn’t quite so important. But for those combat MOS’s, it is a vital leadership trait. No one can effectively lead from the rear. And you can’t help someone along when you’re the one struggling to keep up. This is basic.

    shockna @19: I don’t know that it’s so much a problem that this lady’s concerns were accommodated. I remember thinking it was silly, but I didn’t care. I thought it was a stupid cadence anyway.

    But what does concern me is when I encounter a culture of skeptics who believe that we live in a male privileged world, dominated by an oppressive patriarchy that imposes its will on the fairer sex at will with very little appreciation for the capabilities they bring to the table. For 15 years now I’ve lived in a world where, if that were true, it would be resoundingly clear in my everyday life. But each day I see the opposite dynamic play out.

    One final example: A few months ago I was down in the hangar bay (I’m deployed on the USS Kearsarge right now) and we had just had a RAS (replenishment at sea), and a bunch of junior personnel were hauling boxes from the hangar bay to wherever the supplies needed to go. The boxes were not terribly heavy, and I watched a scene play out that made me think of this issue… the guys were carrying 2 and 3 boxes at a time, while the females were carrying one at a time. I even saw at least one instance were a guy who was carrying a couple boxes playfully snatched the single box a girl was carrying and stack it on top of his so she could go back and grab another one.

    Now, these were all junior personnel, and they were having a good time with it. No one was complaining about anything. They liked working with each other. None of the guys were whining about the clear female *privilege*… the unspoken expectation that the guys would simply shoulder more of the burden of hauling boxes. It was just accepted as a given. Guys carry more. It was that simple. No politics, no activism, no whining, pissing, or moaning about it.

    And it made me think of all the whining I hear about male privilege and patriarchy that I read about all the time. And I thought about how, right in front of my eyes, guys who were getting paid the exact same amount were gladly doing more of the work… because that’s just how it is! And no one was complaining.

    Again, that speaks to the question asked at @1. There are intelligent reasons to treat women differently. See, when Scalia says that… the assumption made from folks like dogfightwithdogma is that “different” means “worse”. But I think Scalia understands, as do all of the guys working in the hangar bay that day, it doesn’t. It simply means “different”.

  19. dogfightwithdogma says

    @20

    Again, that speaks to the question asked at @1. There are intelligent reasons to treat women differently.

    You most emphatically did not answer the question. Read it again.

    What intelligent reasons are there for treating women differently under our laws?

    Note that I asked about treating women differently as a matter of law. What you provided as an answer was based on men acting out of social customs or the like. This was not the kind of different treatment I was addressing. Nor was it the kind of different treatment that Scalia was thinking of when he made his remark. There is no doubt that men often treat women differently in certain social contexts.

  20. says

    @21 dogfightwithdogma

    Then I believe the question you asked projected intent into Scalia’s statement that wasn’t there.

    Here’s Scalia’s statement in context:

    <b.If there’s a reasonable basis for not ­letting women do something—like going into combat or whatnot … (Emphasis added – kr)

    Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
    I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

    But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.

    It seemed pretty clear to me that he was speaking in a context of treating women differently such as permitting them to go to combat. My commentary has referred to the different treatment women receive in the military for what are considered by many to be intelligent reasons.

    But it seems you are clear in your position that women should not be treated differently under our laws. And that’s fine.. I expect then that you would be supportive of the idea that women and men should meet the exact same criteria in order to serve, right? No double-standards… exact same standards for both (all?) sexes, right?

  21. dogfightwithdogma says

    He says there are intelligent reasons for treating women differently right after being asked whether sex should be treated with the same level of legal scrutiny as race. Now perhaps I have misunderstood him. But if so this was an odd juxtaposition of his comment after being asked a question about discrimination in civil and constitutional law. Strict scrutiny is a legal concept, a matter of jurisprudence. Why say what he said immediately after dismissing the idea of strict scrutiny.

    Women are treated differently in civilian life and some of this constitutes discrimination. Women for example make less than men in the workplace:

    ” In 2010, female full-time workers made only 77 cents for every dollar earned by men, a gender wage gap of 23 percent. Women, on average, earn less than men in virtually every single occupation for which there is sufficient earnings data for both men and women to calculate an earnings ratio.” — (http://www.iwpr.org/initiatives/pay-equity-and-discrimination)

    You are correct. I do not think women should be treated differently under our civil laws. I am not speaking about the military, which operates by a system of laws of its own. The military is not representative of civilian life. But since you bring it up, yes, I do think women and men should meet the same criteria to serve in the military. Now by “serve in the military” I assume you are talking about qualifying for entrance into the military. I also cannot think of any good reasons for official discrimination against women in the military. The example you provided of men and women working on the hangar deck does not illustrate any official policy or military law. It does not show women being treated differently as a matter of law or policy. They were being treated differently by the men in that instance as a result most probably of some cultural or social customs. This is not the discrimination of which I was speaking. In fact, I don’t think this is discrimination. Now if it were the official policy of the military that men are required to carry more and the women were legally sanctioned to do less, then it would be discrimination. Discrimination that benefited the women. But discrimination just-the-same. But a fellow sailor assisting another sailor is not the issue which I was addressing.

    Regarding some other comments in your post #20:

    But what does concern me is when I encounter a culture of skeptics who believe that we live in a male privileged world,

    It isn’t an unfounded belief. Everyone has privilege. But men are accorded more privilege than are women. You might want to read the Male Privilege Checklist at this cite: http://amptoons.com/blog/the-male-privilege-checklist/.

    dominated by an oppressive patriarchy that imposes its will on the fairer sex at will with very little appreciation for the capabilities they bring to the table.

    I think you are exaggerating the argument made by those of us who argue that patriarchy does still exist in our culture. I don’t argue that it is as prevalent or domineering as it was in past generations. But I am convinced it is still present in a less domineering form.

    For 15 years now I’ve lived in a world where, if that were true, it would be resoundingly clear in my everyday life. But each day I see the opposite dynamic play out.

    The partriarchy of today is softer, gentler than in past generations. But there are vestiges of it still present. Just because you’ve not experienced it does not mean it does not exist. I am continuously puzzled by skeptics such as yourself who think that their personal experience is evidence of everyone else’s experience. Incidently, the military is not representative of non-military life. Most women don’t see their lives played out in the military. Furthermore, I’d bet that if you went searching you’d find discrimination and patriarchy playing out in the military as well.

    And it made me think of all the whining I hear about male privilege and patriarchy that I read about all the time. And I thought about how, right in front of my eyes, guys who were getting paid the exact same amount were gladly doing more of the work…

    This anecdote does not, as you seem to think it does, argue in defense of the proposition that male privilege and patriarchy are not prevalent enough to justify the concern about it that you so insultingly dismiss as “whining.” This “whining” as you call it is more than justified. Just because you are unfamiliar with the experiences of women who confront this male privilege and patriarchy does not mean it isn’t happening.

    See, when Scalia says that… the assumption made from folks like dogfightwithdogma is that “different” means “worse”. But I think Scalia understands, as do all of the guys working in the hangar bay that day, it doesn’t. It simply means “different”.

    No, sometimes different does mean worse. I wasn’t making the assumption that different always means worse. That would be a false assumption. Just as false as the assumption you appear to be making that different never means worse. Furthermore, how do you know what those “guys working in the hangar bay” were thinking? Or what their overall attitudes about women are? How do you know that “different” just means “different” to each of them? Did you speak to them at length about it?

  22. says

    @dogfightwithdogma

    He says there are intelligent reasons for treating women differently right after being asked whether sex should be treated with the same level of legal scrutiny as race. Now perhaps I have misunderstood him. But if so this was an odd juxtaposition of his comment after being asked a question about discrimination in civil and constitutional law. Strict scrutiny is a legal concept, a matter of jurisprudence. Why say what he said immediately after dismissing the idea of strict scrutiny.

    I only interpreted Scalia’s comments within the context of this particular blog post, not within the complete interview, so my comments were framed as such. I don’t know. Maybe you understood the context and I didn’t. I don’t know… but on to your other comments…

    Women are treated differently in civilian life and some of this constitutes discrimination. Women for example make less than men in the workplace:

    Okay, I don’t dispute that. But then you say this:

    The example you provided of men and women working on the hangar deck does not illustrate any official policy or military law.

    As far as I know, the wage disparity is not a by-product of legislation either, is it?

    Now by “serve in the military” I assume you are talking about qualifying for entrance into the military.

    Just being in the military is a perpetual cycle of re-qualification. Our physical fitness levels are tested semi-annually, as is our body weight and composition. The results of this testing significantly affects each service-member’s prospects of advancement and promotion. For example, a Marine (male) who runs three miles in 21 minutes and scores perfect on all other events will have a PFT score of 282. A female who does the same will have a perfect score of 300.

    How relevant is this? Well, in the USMC a 285 score will earn you special *documented* recognition. A 300 gives you straight-up bragging rights, and all else being equal, when both Marines are being briefed to a promotion board, a Marine with a perfect PFT score will be picked before a Marine with a 282.

    On top of that, there are service limits for some of the more junior pay grades (up to E6), and if you fail to get promoted before you reach your service limits, you will be denied re-enlistment. (On the officer side, there is a comparable system).

    Therefore, in a very literal way, the disparity between the way men and women are scored could *very realistically* result in a scenario where two Marines run the exact same speed, score perfectly in all other events, and the *male* Marine will be the one whose career comes to a screeching halt because the female standard is lower.

    In fact, it’s actually worse than that. In the above scenario, the male Marine would likely be able to easily max-out the “flex-arm” hang event that the females have to do, but I’ve never met a woman in my life that could do the requisite 20 pull-ups that the men have to do (for a perfect score). In fact, it’s not easy for the guys to pull that one off. In 15 years, I’ve only done it twice.

    So now we have a scene where a man who is actually *more physically capable* than a woman has his career cut short due to this disparity, because she is measured by a different metric that labels her *more physically fit*.

    So if you really do believe that men and women should meet the same criteria to serve in the military, would you endorse a policy change by which men and women have to demonstrate the same physical capabilities (i.e. run the exact same Physical Fitness Test, measured by the exact same metrics)?

    For reasons I detailed in comment #7 – you’ll find yourself in a predicament no matter how you answer. And there’s a reason for that.

    I also cannot think of any good reasons for official discrimination against women in the military.

    Neither can I.

    I am continuously puzzled by skeptics such as yourself who think that their personal experience is evidence of everyone else’s experience.

    I don’t think that. But when a proposition is made that a certain universal condition exists, anecdotes are helpful in demonstrating that those conditions are not universal – particularly when they are first-person testimonials.

    Furthermore, I’d bet that if you went searching you’d find discrimination and patriarchy playing out in the military as well.

    Sure you would. And you’d find discrimination playing out in the reverse direction as well. No denials here. Is it okay to question whether it’s such a terrible thing, or is that question verboten?

    No, sometimes different does mean worse.

    Agreed, and I’d argue that this isn’t one of those times.

    Furthermore, how do you know what those “guys working in the hangar bay” were thinking? Or what their overall attitudes about women are? How do you know that “different” just means “different” to each of them? Did you speak to them at length about it?

    I was reporting on their behavior and disposition, not their thoughts. No, I didn’t stop them from their tasks to engage them in a in-depth discussion about cultural attitudes and their thoughts on the patriarchy.

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