The nominee to replace Kavanaugh, Neomi Rao, once used dwarf tossing to explain dignity vs. government coercion. Her argument is formidable, but her opponents treat it like she just likes dwarf tossing.
Writing in The Volokh Conspiracy in 2011, Rao discussed the predicament of a man named Mr. Wackenheim. By her description, Wackenheim was a dwarf living in France who allowed others to throw him for sport. This was his source of income. After several French cities banned the practice, he “challenged the orders on the grounds that they interfered with his economic liberty and right to earn a living.” Higher courts eventually upheld the bans, ruling that the practice of dwarf tossing offended human dignity.
As Rao explained, former French President Nicolas Sarkozy used similar justifications to support the country’s ban on burqas. The former president, she noted, said that the religious wear “runs counter to women’s dignity.” But as Rao rightly responded, “the debate focuses little on what Muslim women think about the full veil or why some of them wear it in public. Instead of associating dignity with religious choice, those who would ban the veil treat dignity as a different social ideal—one that measures up to majority standards of individual self-expression.”
“Respect for intrinsic human dignity, however, would favor individual choice,” the now-D.C. Circuit nominee added. “As with other similar theories, it is a short step from having substantive ideals of dignity to coercion of individuals in the name of these ideals.”
Rao’s argument is a serious one. Her point is that one can disagree with another’s choices, but dignity is about the right to make those choices instead of having the government make them for us.
If you only read about Rao’s work in Mother Jones, however, you might have thought that Rao simply has a niche affinity for dwarf tossing.
Well, Mother Jones.