Speaking of special snowflakes: Don’t breastfeed your bundle of joy on the steps of the Supreme Court!

MotheringFeaturedImageSpeaking of special snowflakes:

One of the Cincinnati mothers in the same-sex marriage case was not only denounced by protesters on the steps of the Supreme Court this week, but she also was admonished by security for breastfeeding her baby there.

Kelly Noe – who was in the nation’s Capitol fighting to have her wife, Kelly McCracken, listed as a parent on the birth certificate for their daughter, Ruby – had been quietly sitting on the steps Monday evening, discreetly breastfeeding the 10-month-old girl, when a male security guard spotted her and snapped, “You are not doing that here.”

McCracken started to argue with the guard, but Noe begrudgingly acquiesced. She stopped feeding Ruby and pulled out a pouch of baby food instead.

The couple acknowledged that on the surface, the nation’s highest court might seem a controversial place to breastfeed, but the scene around them wasn’t exactly one of heightened decorum: Nearby, protesters supported traditional marriage by yelling through a bullhorn that gays and lesbians will be condemned to hell. They also preached about the importance of doing what’s best for children.

Amber Hunt, Moms: You can’t do this at the U.S. Supreme Court (May 1, 2015).*

I hope that Ruby grows up to avoid the narcissism that her parents displayed on the steps of the Supreme Court.**


*Ms. Hunt’s makes no effort to conceal her outrage. I wonder, Ms. Hunt, exactly how one goes about “discreetly” breast-feeding a kid on the steps of the Supreme Court with protestors, television crews and reporters swarming the place on the evening before the gay marriage case was being argued.

**Please don’t start on me about breast-feeding in public. In general, I think that is perfectly fine when a covering is used. My daughter and daughter in law are both doing so. I doubt, however, they would do so on the steps of the Supreme Court discreetly or otherwise while being denounced by protesters. If they did, I would raise hell with them for using their kid as a prop and for an utter disregard of decorum at the high Court.

H/T How Appealing.

Update: An earlier version stated that these events took place on the day the SSM case was being argued. Apparently, this took place the evening before the case was argued. I have corrected my apparent error.

44 responses

  1. Perhaps the Supremes would do well with a little more “utter disregard of decorum,” so that they get a little better feel for the nation over which they rule. Of course, a traffic stop turned ugly would do as well.

  2. Your Honor:

    If it were my baby, if it were my baby’s feeding time, and if my baby was hungry, I would breastfeed it myself but, of course, with a proper cover.

    Why should a baby have to go hungry just because she happens to be on the steps of the Supreme Court? From what other activities should a mother be denied because her baby is hungry?

    Methinks a little sensitivity training may be in order for one of us here.

    As for the security guard, he should be assigned to a litter pick-up detail somewhere where breast-feeding mothers and babies will not be a problem for him.

    Jim G

  3. SHG,

    On reflection, you are probably right. Indeed, you have given me an idea.

    Maybe we should recruit nine breastfeeding snowflakes from the guild of priestesses of some modern day temple at Delphi. Then each Justice could consult their very own priestess to “get a little better feel for the nation over which they preside.”

    All the best.


  4. This breast feeding issue is overblown. So what if a mother feeds her baby at the Supremes? There are bigger issues and problems facing our nation. Sucking boobies is overrated, just saying.

  5. It is shg’s “over the nation that they RULE” that offends me, because it is so true. Judges think they have a judicial veto over even the Constitution itself!!!

    Someone from the criminal defense bar should step up and defend Ms. Hunt pro bono. Her action is an obvious protest, sheltered by the First Amendment.

  6. There’s nothing “obvious” about whether it was a protest. And whether it was or was not, she stopped (albeit “grudgingly”) when the guard told her to.

    In any event, there’s nothing for a criminal defense lawyer to defend, pro bono or otherwise, if she wasn’t charged with a crime, and it appears she wasn’t.

    She could, of course, file a civil rights lawsuit claiming that she has a constitutional right to breast feed her child anywhere she likes. (That’s protected by one of the secret amendments that only the offended know about.) She’d lose. Quickly. It is simply not the case that the constitution protects your right to do whatever you think it should. Even those (and I’m one of them) who take an expansive view of civil liberties and constitutional rights don’t buy that.

    She would also lose quickly if it actually were protest and she brought a First Amendment challenge, though that time she’d have everything except the courts on her side.

  7. SEC. 647. Notwithstanding any other provision of law, a woman may breastfeed her child at any location in a Federal building or on Federal property, if the woman and her child are otherwise authorized to be present at the location.


  8. Spent an evening with Harvey Johnsen while he shared his memories of Learned Hand. He told a story of Hand responding to Frankfurter’s criticism of one of his decision on which SCOTUS had denied cert by telling the Justice
    ,”Felix, the trouble with your Court is that it does not pay enough attention to the great legal doctrine of ah shit.”May be true of Court employees as well.

  9. ECLS,

    Thank you. Three things.

    First, it was not my intent to discuss legal questions in the post.

    Second, I think the statute you refer to is correctly cited as Public Law 108-199, Section 629, Division F, Title VI (January 23, 2004). See also 41 CFR 102-74.365.

    Third, for a number of reasons, I am not certain that the foregoing applies to the Supreme Court. See also Supreme Court Building Regulation 7 which states:

    This regulation is issued under the authority of 40 U.S.C. § 6102 to protect the Supreme Court building and grounds, and persons and property thereon, and to maintain suitable order and decorum within the Supreme Court building and grounds. Any person who fails to comply with this regulation may be subject to a fine and/or imprisonment pursuant to 40 U.S.C. § 6137. This regulation does not apply on the perimeter sidewalks on the Supreme Court grounds. The Supreme Court may also make exceptions to this regulation for activities related to its official functions.

    No person shall engage in a demonstration within the Supreme Court building and grounds. The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.


  10. repentinglawyer,

    I had the privilege of knowing Judge Harvey Johnsen when I clerked for Judge Ross. His office was next door. He dictated his opinions to a secretary who took his spoken words in shorthand. He was very quiet and I was pretty much in awe of him.

    All the best.


  11. Your honor, I stand before you suitably abashed and bloody.

    You are correct that my cite is of the previous enactment of the statute instead of the current one.

    But I would of course argue the point that breastfeeding is not a demonstration, but merely a mother feeding her child and thus fitting into the casual use by visitors clause.

  12. ECLS,

    No abashment or blood necessary. I can be a picky old prick.

    I think the breast feeding mother was engaged in “a form[] of conduct that involve[d] the communication or expression of views or grievances . . . .”

    But what do I know?

    All the best.


  13. There are people ‘yelling through a bullhorn that gays and lesbians are going to hell’ and you choose to take issue the perfectly normal and natural act of feeding one’s child. That’s pretty fucked up man.

  14. Jeff,

    Thanks for taking the time to comment. Given your extensive experience in civil rights cases, your real world take is very helpful. All the best.


  15. What a mean-spirited calling out of a breastfeeding mother. Since when is nursing a hungry child a narcissistic act? If the pope can encourage women to nurse in the Sistine Chapel surely the Supreme Court of the United States can allow the same on its steps.

  16. Dear Judge —

    I share your feeling about parents using their children as props, but I don’t see where you find evidence of that here. The woman was attending a protest and her baby was hungry. She fed her daughter discreetly. (And the fact that I only just learned about this from your blog suggests that, indeed, it is possible for a woman to discreetly breastfeed a baby on the steps of the SCOTUS among protesters, officers and cameras.) Unless there’s more to it than that, I don’d see an act of protest but a mother caring for a hungry child.


  17. Dear David,

    Please see Amber Hunt, Ahead of landmark case, tension at SCOTUS, Cincinnati Enquirer (April 27,2015) and the photos contained therein on the “slide show.” I believe the first five (at least) of the photos depict the day this incident took place.

    Indeed,the third photograph captures the breast-feeding mom on the steps under a caption that reads: “Following a group photo opportunity, Nicole Yorksmith from Northern Kentucky, one of the plaintiffs in Obergefell v. Hodges, sits in front of the United States Supreme Court Monday with her children Grayden, 4, and Orion,10 months. In the background, plaintiff Kelly Noe of Elsmere feeds her daughter Ruby.”

    Here is a “long range” photo that gives one a sense of the milieu that evening:

    All the best.


    (Photo credit: Cincinnati Enquirer)

  18. Ms. Kubick,

    I am truly sorry that you think so.

    As an aside, I admire your writing.

    Anyway, thanks for your engagement. All the best.


  19. Judge —

    I see a photo of a woman who appears to be dressed somewhat conservatively while very discreetly feeding her child. She’s not looking at the cameras and there’s no indication that she’s doing anything to draw attention to her activity. The officer did that. I suppose fair-minded people could debate the propriety of nursing a child in that place and at that time, but I still have seen no evidence of the narcissism you allege.


  20. Anon.,

    It was enough to draw the attention of the anti-SMS marriage folks and a Supreme Court policeman. But, you may be right. Perhaps I have been too quick to judge a motivation/personality that I can never know.

    All the best.


  21. For what it is worth, it does not take much to catch the attention of a Supreme Court security officer. I was in court listening to the Rodriguez argument. I had been sitting for about 3 hours in my tiny, hard, uncomfortable chair in the section reserved for the bar. Even during the break members of the bar were prohibited from moving. I was wishing to move an inch or two. I put my left arm on the back of the empty chair next to me. That was enough to cause me to be tapped by the security officer sitting directly behind me. I guessed I would have been tossed out if I had tried to fidget any more.

  22. The tone of your post makes me think you’re calling the woman a “special snowflake.” Wasn’t the security guard the special snowflake in this situation? He saw someone doing something utterly innocuous, something that didn’t hurt anyone in any way, but it made him feel uncomfortable, so he demanded that this person change her conduct to conform to a standard that protected his delicate feelings from being upset.

    Isn’t that the very quintessence of a “special snowflake,” as that term is pejoratively used? If someone feeding a child is a “narcissist” and a “special snowflake,” while someone whose job it is to protect the safety and security of an institution and who allows himself to be distracted from that important duty to bully someone who’s making him feel uncomfortable is not a narcissist or “special snowflake,” then I think we’re living in upside-down world.

  23. Feeding your child is narcissistic? I have rarely disagreed so strenuously with you, RGK.

  24. Mary,

    As I understand it, you did a lot of work on the Defender’s brief. I know the quality of your work well, and I am sure you did a great job!

    As for security within the Court’s argument room, I understand your annoyance but the Court is the Court. Very rigid when it comes to such things, so I am told.

    All the best.


  25. MarcosD,

    I did not say “[f]eeding your child is narcisstic.” That said, I understand why you strongly disagree with me.

    All the best.


  26. The only thing Noe did in that story was feed her child. You said that Noe displayed narcissism. You can see how a body might get the wrong idea.

  27. Rich,
    Oh no, I understand completely having worked so long for the district court and given unfortunate events in our recent history. Mostly I found it interesting that even members of the bar enjoyed no special treatment.

    As for my role, it was relatively minor, but thank you. It was fun to have some involvement with the case yet not have to deal with the stress of doing the actual writing or arguing, and fun to work with my former colleagues again.

  28. It is legal to breastfeed anywhere on federal property that the mother & child are allowed to be, and illegal to tell them to stop, move, or cover. The federal government was one of the first to explicitly lay this out in law. The guard was in the wrong, and people need to know that.

  29. Then all protesters should have been removed. Why vilify a mother who is breastfeeding? Breastfeeding should be a non-issue. If the protest was allowed to stand and the security guard was not clearing all the bystanders, then her right to breastfeed is protected.

    There is a coalescence of prejudice against women who do things that don’t align with your moral code and the law. I would have expected you to understand the difference between personal moral codes and the legals statutes of a nation.

    But what do I know…

  30. Competentmom,

    You may be right as the relevant statute plainly pertains to “federal buildings.” See the discussion above in these comments between Ex-Cop Law Student and me. Note also that this statute was adopted as a part of an appropriations bill pertaining to a federal department, rather than an appropriations bill for the Supreme Court.

    The Supreme Court is different in that it is not an agency or department of the Executive but rather under Article III a separate branch of government. Indeed, it is the only court specifically empowered by our Constitution.

    Under the law as I understand it, Congress must be very careful and very clear when it tries to dictate that the Supreme Court must do or refrain from doing something when that direction conflicts with the operations of the Court. Sometimes Congress is well within its powers when enacting laws governing the Court, and other times it is not.

    When the breast feeding mother stood on the steps breastfeeding the child and drawing the attention of counter protestors on the sidewalk and the Supreme Court police, a pretty good argument can be made that she violated Supreme Court Building Regulation 7 which prohibits any “conduct that involve[s] the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.” Note that Congress gave the Supreme Court power to enact regulations about the buildings and grounds.

    To be clear, my post did not try to parse the law. And I am certainly not saying that the mother violated the law. I don’t know that because there is no precedent on the point so far as I am aware. That said, it is a fascinating issue.

    Thanks for writing. All the best.


  31. I am truly sorry that the author of the original article did not provide you with appropriate trigger warnings that there would be discussion of human breasts given your publicly expressed sensitivity to the same (see dirty old man post) and that caused you to have an emotional reaction in which you forgot that you don’t care about the dignity of the Supreme Court (see STFU post). I hope you have recovered and you won’t need too much therapy.

  32. JLust,

    Me too!

    All the best.


    PS By the way, I have had about six years of therapy. I have paid my dues.

  33. I am told I might have just implied that a federal judge is a special snowflake….I hope I was more blunt than that


  34. Jeanelle,

    I had an idle thought.

    Do you know of any lawyers who breast feed their babies while conferring with a client? If so, give me some examples.

    As for being a “special snowflake,” hell, I cop to anything. But like the witch in the Wizard of Oz, sometimes I feel like I am melting.

    As for your being blunt, that is a good thing. In addition to being a “special snowflake,” I am “slow” if you know what I mean. And I know you do. That’s ’cause I once ruled in your favor in a big case where $5,693,312.73 plus attorney fees of $1,095,263.00 were at stake. The Circuit reversed in part and said, in so many words, that I was an idiot because I submitted your treble damage RICO claim to the jury.

    All the best. (And I really mean it!)


  35. She has a right to breastfeed her child anywhere in the District of Columbia that she is lawfully allowed to be. See District of Columbia Code § 2-1402.82. Rights of breastfeeding mothers.

    The relevant code section reads, “(b) It shall be an unlawful discriminatory practice to deny a woman any right provided under this section.

    (c) (1) A woman shall have the right to breastfeed her child in any location, public or private, where she has the right to be with her child, without respect to whether the mother’s breast or any part of it is uncovered during or incidental to the breastfeeding of her child.

    (2) Notwithstanding any other provision of District of Columbia law governing indecent exposure or the definition of the private or intimate parts of a female person, including that portion of the breast that is below the top of the areola, a woman shall have the right to breastfeed in accordance with this section.”

  36. I don’t know any lawyers who do crossword puzzles while conferring with a client, but if Noe had been doing a crossword puzzle on the steps of the Supreme Court, do you think any security guard would have felt triggered enough to hassle her over it? Would you deride her as a narcissist?

  37. Judge

    My response to paragraphs 2 and 4 above are the same: They’re just boobs. Get over it.

    PS while I have not fed my child in front of clients, I do remember offending the dignity of Pearl the Seal at the Lincoln Children’s Zoo. I am told the trauma was too much for her and that’s why they have penguins now.

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