Law: October 2006 Archives

Judge Robert Armstrong in California has ruled that a law against disrobing in front of a minor applies only to men and not to women, even though no mention of gender occurs in the law. How could that be? It says "exposes his person". [See also here for further details. Hat tip to How Appealing for the last link. I found the story initially from a Google search for something entirely different.]

Now I'm a strong defender of inclusive language, as anyone who has been reading my blog for very long should know, but this is pretty stupid. Just because most of the English-speaking world now does not speak the way this law was constructed does not mean that the law as written means to include men by the pronoun 'his'. Either the judge doesn't know that anyone has ever used grammatically masculine pronouns for gender-indeterminate or gender-unknown people, or this is strict constructionism gone wild. Originalists distinguish themselves from strict constructionists for reasons much like this. No original reader of the law would have interpreted it like this, and the writers of the law surely didn't mean it this way. But if the strict meaning of the literal text is what counts, regardless of what anyone at the time would have understood it to mean, then you get this kind of thing. It strikes me as being in the same category as insisting that there is too milk in the fridge and thus you don't need to go to the store to get more, then pointing at a tiny puddle of milk in the bottom of the vegetable crisper to demonstrate this claim.

Dahlia Lithwick seems to think Justice Scalia's comments in the following quote offensive. Interestingly, there's no explanation at all of what is supposed to be offensive. Here is his comment (via Orin Kerr, who gives the broader context and says some similar things to what I'm about to say):

We have a case involving standing which says that -- you know, the doctrine of standing is more than an exercise in the conceivable. And this seem to me an exercise in the conceivable. Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States, or is going -- is going to apply having been deported from the country for criminal offenses, he is going to apply to come back -- and look, these are ingenious exercises in the conceivable. This is just not the real world.

I can think of several reasons someone reading this quote out of context might think it offensive, but I'm having trouble seeing how any of them is both (1) a good interpretation of the justice's words and (2) offensive in the right sort of way to justify the way Lithwick describes the offense.



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