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A recent article about Neomi Rao's nomination to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals claims that Rao has a record of defending dwarf-tossing.

Conservatives are discouraging talk of Rao as a future justice, recognizing that it will only draw more scrutiny of her record, which has recently been criticized over controversial positions like her defense of dwarf-tossing and past skepticism of date rape claims.

Does Neomi Rao have a record of defending dwarf-tossing? Also, how did that end up in court?

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    @elliotsvensson The Washington Post paywall is trivially bypassed by opening their pages in an "incognito"/private browsing session.
    – Bryan Krause
    Feb 5, 2019 at 21:50
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    No tag wiki for dwarf tossing? Are you expecting pixies to create the wiki for you?
    – Andrew Grimm
    Feb 5, 2019 at 22:18
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    I'm not impressed that much research went into this question. They provided a link, and many newspapers have this story.
    – Oddthinking ♦
    Feb 5, 2019 at 22:36
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    @elliotsvensson: You didn't even follow the link provided, and quote from that. We shouldn't allow ourselves to turn into a "Could someone bypass this paywall for me, please?" site. (I don't see this as extraordinary, but that's opinion.)
    – Oddthinking ♦
    Feb 5, 2019 at 23:05
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    If someone supports the legality of BDSM (which can involve consenting people hurting each other during sex), does that mean they "support beating up your partner during sex"?
    – Obie 2.0
    Feb 6, 2019 at 1:25

1 Answer 1

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Rao wrote the blog article Substantive Dignity-Dwarf-throwing, Burqa Bans, and Welfare Rights as well as more-formal articles cited therein:

In a much-discussed French case, Mr. Wackenheim, a dwarf, made his living by allowing himself to be thrown for sport. The mayors of several cities banned dwarf tossing events. Mr. Wackenheim challenged the orders on the grounds that they interfered with his economic liberty and right to earn a living. The case went to the Conseil d’Etat (the supreme administrative court), which upheld the bans on the grounds that dwarf throwing affronted human dignity, which was part of the “public order” controlled by the municipal police. The Wackenheim case demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.

...

The issue is not whether laws prohibiting dwarf throwing, burqa wearing, prostitution, or pornography may be desirable social policy. Rather these examples demonstrate that the conception of dignity used to defend such policies is not that of human agency and freedom of choice, but rather represents a particular moral view of what dignity requires. These laws do not purport to maximize individual freedom, but instead regulate how individuals must behave in order to maintain dignity (and in the case of criminal prohibitions, stay out of jail).

For the related academic article see Three Concepts of Dignity in Constitutional Law Notre Dame Law Review volume 86, pages 183-271, particularly the "Dwarf Throwing" section on pages 226-227.

So in conclusion, she defended allowing dwarfs who want to be thrown, to be thrown, as opposed to outlawing the practice.

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    I think it is worth clarifying the difference between "supporting dwarf-tossing" (as the title of the question claims) and "rejecting laws which ban activities based only on moral views of dignity, such as anti-dwarf-tossing laws". (e.g. I do not support people using the word "learnings" where they mean the word "lessons" - it is undignified - but I reject any proposed laws against it.)
    – Oddthinking ♦
    Feb 5, 2019 at 23:10
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    @JonathanReez she supports allowing dwarfs who want to be thrown to be thrown.
    – DavePhD
    Feb 5, 2019 at 23:31
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    She supports freedom, even if that includes allowing dwarf throwing. Whether or not she personally supports the practice is unknown.
    – JonathanReez
    Feb 5, 2019 at 23:35
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    The real answer should be "we don't know." She could view dwarf-throwing as repugnant, or she could view it as innocuous. Either would be consistent with the position she expressed.
    – Obie 2.0
    Feb 6, 2019 at 1:26
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    @Obie2.0: However, I do think that it's relevant to answer that while her personal opinion on dwarf tossing is unknown, her legal opinion is very much known: she is against a blind ban, and argues that it hinges on the consent of the dwarf being tossed (that is not to say that dwarves were being tossed without their consent in the past ;)).
    – Flater
    Feb 6, 2019 at 11:22

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