Even if very few women would want or could get through "adversative training" at VMI, that doesn't justify excluding the one woman who does. Even if it were established with plenty of evidence that most women wanted far more than men to take care of newborns and were far better than men at doing so, it would be unconstitutional to have a policy giving more new parent leave to women than to men (excluding the few weeks attributable to physical disability from actual childbirth (and don't even bring up the topic of breastfeeding!)). This arguably could be limited to the situation where the stereotype is a traditional stereotype, but it isn't limited to stereotypes that portray women in a negative light. Like Mitch (perhaps), I am concerned that the Court to some extent becomes overconfident that it knows in which direction progress lies and frames doctrine accordingly, to the detriment of diversity and experimentation.
I know the recent immigration case comes out differently, to some listmembers' dismay, but there are reasons to see the immigration context in a different light, not that I am purporting to defend that--or Hibbs or Virginia--by saying any of this.
Ann
From: Mitchell Berman <[EMAIL PROTECTED]>
Reply-To: Discussion list for con law professors <[EMAIL PROTECTED]>
Date: Wed, 16 Jul 2003 14:47:49 -0500
To: [EMAIL PROTECTED]
Subject: Re: Statutory rape laws
I know this is well-worn ground, but I'd be grateful for some elaboration, from Ann or others, on what distinguishes those stereotypes upon which the state may not rely from those generalizations upon which states and courts may -- indeed, must -- rely in order to carry out any inquiry into the closeness of fit between means and ends. And is the critical constitutional line thought to run between stereotype (bad) and generality (okay) or between "stereotypes like this" (bad) and "stereotypes of some other sort" (okay)?
I'm not disagreeing with Ann's claim below, just wondering whether the line is something more than "we know the difference when we see it."
Mitch
At 05:01 PM 7/15/2003 -0500, you wrote:
"....the empirical sense that girls are more likely to be reluctant participants than boys, and thus more likely to be emotionally hurt by relationships gone bad (as relationships often do) -- does appear greater than the danger to boys....."
I don't see how, after U.S. v. Virginia and the recent Nevada v. Hibbs, a court can rely on a stereotype like this, no matter how accurate it is as a generality.
Ann
