Homosexual vs. gay

[Volokh, Eugene]

	What do we know about the actual preferences of most homosexuals
(as opposed to the preferences of some homosexuals)?  I ask this in part
because often calls for changing names end up *not* closely reflecting
the actual preferences of most members of that group.  Consider the
following data about race (it's from 1995, the most recent I have; if
others have better data, please let me know), see U.S. News & World
Report, Nov. 20, 1995, at 28:

     Black               44.2%
     African-American    28.1%
     Afro-American       12.1%
     Negro                3.3%
     Colored              1.1%
     No preference        9.1%

     American Indian     49.8%
     Native American     37.4%
     No preference        5.7%

     Hispanic            57.9%
     Of Spanish origin   12.3%
     Latino              11.7%
     No preference       10.2%

	As I recall, in 1995, the conventional wisdom -- based, as best
I can tell, on the views of those in activist groups -- is that most
blacks preferred African-American, most American Indians preferred
Native American, and most Hispanics preferred Latino.  At least as of
1995, that view was apparently wrong.  This, coupled with the sense that
"homosexual" is rarely seen as outright pejorative or even outmoded,
makes me wonder whether there is indeed solid evidence to back up the
theory that "gay" is indeed the preferred reference.

	Finally, note that there are various reasons why people choose
not to use a term even if it is a preferred reference, besides hostility
to or "phobia" of the group.  (1)  The term may not be a suitable
synonym; for instance, black is a racial designation, and
"African-American" is a subset of a racial group that's limited only to
Americans -- if someone discriminates against a black person based on
race, he's discriminating based on the black person's being black, not
his being African-American, unless the discriminator also cares about
his being American.  Likewise, "gay" doesn't mean "homosexual"; the
closest synonym for "homosexual" would be "gay and lesbian."

	(2)  Using the term may be seen as endorsing a particular agenda
or viewpoint; for instance, though I'm told that at least some Mormons
prefer the term "Latter-Day Saint" both for the church and for
themselves, I wouldn't use this term.  I have nothing against Mormons,
but I prefer not to call people "saints," even in an idiomatic context,
because that's a term that to me carries connotations that I don't want
to endorse.  To the extent that using the name "gay" is indeed part of
the agenda of gay activist groups, people may be reluctant to use the
term precisely because it seems to endorse that agenda (not just the
part that gays shouldn't be hated or feared, but also other parts of the
agenda).

	(3)  Some people may be annoyed by others telling them to change
their language, especially when they know their language is not intended
to be pejorative, and when they believe there's nothing inherently
pejorative about the term.  Perhaps this is the view of those who are
bristlier and more ornery than the norm, but one needn't be a bigot to
take this view.

	(4)  To tie this back to the earlier point, even if polls do
show that 55% of homosexuals prefer the terms "gay" or "lesbian," the
speaker may be simply unaware of this -- I surely am not aware of it,
even if it's true.

	There are other possible reasons that could go on this list.
But I don't think we even need to get to this list unless we first see
evidence that "gay" is indeed the "preferred reference," and preferred
by the majority of the group (preferably a substantial majority) and not
just a vocal minority.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> dpinello at jjay.cuny.edu
> Sent: Monday, August 08, 2005 2:48 PM
> To: ConLaw Prof
> Subject: Is Antonin Scalia a Homophobe?
> 
> 
> Last Friday, Rick Duncan noted that my implied characterization of 
> Antonin Scalia as a homophobe was an insult to the Justice.  The same 
> day, our list custodian admonished subscribers to "err on the side of 
> understated and impersonal criticism" but yet noted that he 
> didn't "want anyone to pull their punches on the substance."  In that 
> spirit, I offer empirical evidence of my depiction of Justice Scalia, 
> based exclusively on justices' words in case opinions.
> 
> Although list subscribers may not agree on much, most probably 
> acknowledge that justices' opinions are carefully written, with 
> painstaking choice of language.  Diction is probably more deliberate 
> in the Court than in any other enterprise relying on written 
> communication.
> 
> My empirical exercise focuses on how justices describe classes of 
> litigants through a measurement that I call a "preferred-reference 
> ratio."  As an introduction, consider the evolution of diction in how 
> the modern Court has referred to African-Americans.  In the 
> 1960s, the 
> justices' exclusive term of reference was "Negro" or its plural.  For 
> instance, "Negro(es)" appears 31 times in the combined opinions of 
> Heart of Atlanta and McClung, while "black" isn't there once.
> 
> Two decades later, however, the Court changed.  The last justice 
> using "Negro" as his or her own (i.e., not in case citations or 
> quotations from books, articles, etc.) was Justice Blackmun (for the 
> Court) in Cleavinger v. Saxner (1985).  Today, "black" and 
> "African- American" are the exclusive references.  In Grutter 
> v. Bollinger, for 
> example, the former arises 42 times and the latter, 15, producing a 
> ratio of 15/42 (or .357) for "African-American" to "black."  
> (Granted, 
> one case is a small sample, but Grutter is long enough -- 25,000 
> words -- to be reasonably representative.)
> 
> I call the ratio "preferred reference" because one of the 
> terms is the 
> frame of reference generally selected for itself by the group at 
> issue.  So for the race example, "African-American" is preferred 
> over "black" for self-identification.  (I assert this with eleven 
> years of classroom observation, teaching at an urban public 
> university 
> whose student population is at least one-third African-American.)  
> Relying on Grutter as a sample, then, I conclude that 
> justices use the 
> preferred reference about 36 percent of the time.
> 
> Now turn to the justices' use of "homosexual" and "gay."  In the 
> Court's gay rights jurisprudence since Justice Scalia joined 
> the bench 
> (Dale, Hurley, Lawrence, and Romer), I count 149 references 
> to "homosexual(s)" or "homosexuality" and 36 to "gay" or "lesbian" by 
> Justices Kennedy, O'Connor, Rehnquist, Souter, Stevens, and Thomas.  
> So the preferred-reference ratio of "gay" to "homosexual" for all 
> justices with the exception of Scalia is 36/149, or .242.  Hence, all 
> justices except Scalia use the preferred term in this category about 
> 24 percent of the time.
> 
> In contrast, in his two relevant opinions (the dissents in Lawrence 
> and Romer), Justice Scalia uses "homosexual(s)" or "homosexuality" as 
> his own 109 times, while "gay" just once (at the end of his second 
> footnote in Lawrence).  (Indeed, I'd wager that the footnote 
> reference 
> was not intentional by Scalia, but rather the product of a law clerk 
> that wasn't caught by the Justice himself, because Scalia is 
> otherwise 
> so scrupulous about putting quotation marks around "gay.") Hence, 
> Justice Scalia has used the term of identification preferred by gay 
> people themselves less than one percent (.009) of the time among 110 
> occasions in which he had reason to make a reference.  (For a 
> comparison with another conservative justice, Rehnquist's majority 
> opinion in Dale has a preferred-reference ratio of 6/23, or .261.)
> 
> In sum, my exercise produces these preferred-reference ratios:
> 
> With regard to race:
> All justices -- .357
> 
> With regard to sexual orientation:
> All justices except Scalia -- .242
> Scalia -- .009
> 
> Admittedly, evidence of homophobia is difficult to observe at a 
> distance.  What I offer here is circumstantial and subject to 
> interpretation.
> 
> Nonetheless, I do believe a reasonable inference of animus 
> can be made 
> from my data.  Indeed, what else would account for a 27-fold 
> difference between Scalia and his colleagues (Rehnquist and Thomas 
> included)?
> 
> Dan Pinello
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, 
> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> 
> Please note that messages sent to this large list cannot be 
> viewed as private.  Anyone can subscribe to the list and read 
> messages that are posted; people can read the Web archives; 
> and list members can (rightly or wrongly) forward the 
> messages to others.
>