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Saying The Quiet Part With A Bullhorn, Phyllis Schlafly Edition

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Dahlia Lithwick and Irin Carmon have good roundups of yesterday’s oral arguments in the UPS pregnancy discrimination case. Evidently, anyone bringing a gender discrimination case before the current Court is usually drawing dead, although this case seems a little less clear-cut. Breyer was also particularly…Breyer.

Carmon cites it at the end of her piece, but connoisseurs of crank reactionary arguments really should examine the amicus brief filed by Phyllis Schlafly’s Eagle Forum. As Carmon says, in the policy section of the brief they argue that reading the Pregnancy Discrimination Act as a statute designed to inhibit discrimination against pregnancy would “harm American families”:

In enacting PDA, Congress never intended:
(1)to eliminate stereotypes of husband-breadwinner, wife-homemaker families;
(2)to have women return to work immediately after giving birth to the exclusion of caring for their newborns;
(3)to have pregnant women work as package – delivering truck drivers; or
(4)to privilege the status of female truck drivers over either male truck drivers or the women married to male truck drivers.

While the eradication of typical – or even stereotypical – families was the goal of the feminist movement [cites ommittted — ed.], Congress generally has taken the more moderate path advocated by UPS here.

[…]

At all times relevant to this action, Young herself was married to a man whose job provided medical insurance. Nonetheless, much of the advocacy and data submitted to this Court press the concerns of single women who work and want to have children. If PDA did allow women like Young and similarly situated single women to impose their pregnancies on coworkers [! — ed.], PDA might provide enough of a cushion for Young, but it would leave similarly situated single women short, once their children were born. Facilitating single motherhood out of strained sense of equality does not do the women or the children a significant or long – lasting favor.

The last paragraph is followed by a lengthy quote from a 1993 Charles Murray op-ed, arguing that single mothers “must destroy the community’s capacity to sustain itself.” Murray is cited again to argue that all attempts to promote economic equality are futile. Oddly, the cites showing that the typical member of Congress that voted for the PDA shared Murray’s crackpot views are omitted.

In addition, I also enjoyed the fact that the brief argues that reading the PDA as trying to prevent discrimination against pregnant women would threaten the nation’s most precious resource of all, the right of citizens not to have an effective remedy when their rights are violated by state governments:

Finally, although UPS itself is not a state entity entitled to sovereign immunity [the Roberts Court is leaving that until 2017 — ed.], Young’s broad reading would – as explained below – exceed the power of Congress as applied to states. As such, the canon of constitutional avoidance argues for the UPS reading as a way to avoid an unconstitutional statute as applied to states.

Although Congress enacted Title VII under both the Commerce Clause and, as to states, Section 5 of the Fourteenth Amendment, Congress can abrogate states’ sovereign immunity only under Section 5. For Congress to do so, there must be a violation of Equal Protection taking place. Unlike prior decisions that have upheld abrogating states’ sovereign immunity to address sex discrimination, the PDA reading pressed by Young and her amici seeks preferential treatment (not non – discrimination) based on the state of being pregnant (not based on sex).

The law, in its majestic equality, should treat men and women who get pregnant exactly the same!

Anyway, anyone can make a horrible argument opposing gender equality, but to combine this with a particularly bad federalism argument in a case that doesn’t even involve a state government — that’s some world-class wingnuttery right there.

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