Bench Memos

D.C. Circuit Nominee Cornelia Pillard—Part 4

See Parts 1, 2, and 3

D.C. Circuit nominee Cornelia Pillard’s constitutional argument against abstinence-only sex education (in Part I of her “Our Other Reproductive Choices” article, pp. 946-962) is also replete with illogic and with an ideologue’s dogmatic but dubious vision of reality.

In a single sentence, Pillard contends that for “sex education conservatives” (i.e., supporters of abstinence-only sex education), “[1] females’ chastity is more important than males’; … [2] marriage is the only proper venue for sexual intimacy; [and] [3] men’s sex drive and sexual satisfaction is privileged while women’s is demonized [!] or ignored” (p. 953). But the second proposition contradicts or undercuts the other two. If abstinence-only advocates regard marriage as the “only proper venue for sexual intimacy,” it is difficult to see how they regard male chastity as less important than female chastity. In the free-for-all sexual culture in which we live, it is at most a very limited “privilege” for a man’s “sexual satisfaction” to be reserved to marriage. And if Pillard has any evidence that even remotely supports her assertion that women’s “sex drive and sexual satisfaction … [are] demonized” by abstinence-only curricula, I missed it.

Consider also some of the evidence that Pillard offers of “stereotyped double standards”:

One curriculum cautions that “[a] man is usually less discriminating [than a woman] about those to whom he is physically attracted.” The fact that a man might make sexual advances towards a woman does not necessarily mean that he cares for her, abstinence-only materials assert, but perhaps only that he sees her as an outlet for his sex drive. Men, the curricula hint, are only after that “one thing.” Because male sex drive is so unrestrained, “[t]he girl may need to put the brakes on first to help the boy.” Nowhere are students warned about girls taking advantage of boys for kicks, or told that boys must also take responsibility to help girls restrain their lust. [pp. 953-954 (bracketed material in original)]

I’ll admit that the propositions that men usually care more about physical attraction than women do and that a man’s sexual advances towards a woman do “not necessarily mean that he cares for her” strike me as truths that nearly all Americans would recognize as obvious. Pillard imagines that these warnings are part of a “sexual double standard that weighs females’, but not males’, chastity as more important than their sexual fulfillment (p. 953 n. 32). But, as she acknowledges only pages later, the “risks of unwanted pregnancy, disease, sexual exploitation, and rape do fall disproportionately on women” (p. 959). Irrespective of any concerns about female versus male chastity, the warnings that she objects to would seem amply justified by these disproportionate risks.

Yet, remarkably, in the very sentence after she acknowledges these disproportionate risks, Pillard laments that the “instinct to warn young women against male predation does not strike all parents as necessarily wrong” (p. 959). Why that instinct to warn against real risks should strike anyone as wrong is the real puzzle. In Pillard’s case, the answer to that puzzle is provided by her dogmatic belief that there are no “‘natural’ sex differences” between men and women beyond “a kernel of anatomical sex difference” (p. 960). It is only the “vast web of sex-based hierarchy [that] has been spun off [this] kernel” (p. 960) that explains the persistence of other sex differences. Because the “law of sexual equality” is “aspirational” as well as “responsive” (p. 959), it must be deployed to create a world that reflects Pillard’s dogmatic belief. The alternative—a world in which there are some natural and ineradicable (and, let me be daring, perhaps even good) differences in general between men and women on, say, preferences for having a career versus full-time raising of children—is unthinkable.  

It’s theoretically possible, I suppose, that Pillard is right that the only “natural” sexual difference between men and women is a minor matter of anatomical plumbing. I understand there to be a vast amount of literature from the hard sciences and the social sciences (as well as from feminists of a different stripe than Pillard) that would vigorously dispute that proposition, but I will not enter into that debate here. For purposes of Pillard’s nomination, I will simply note Pillard’s remarkable ambition to use the Constitution to impose and advance her own dogmatic belief on a matter that clearly belongs, within very broad bounds, to the democratic processes.

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