More from Pin[ar]ello on Scalia
dpinello at jjay.cuny.edu
dpinello at jjay.cuny.edu
Tue Aug 9 04:55:44 PDT 2005
I respond to comments on my empirical exercise regarding Justice
1. Professor Volokh's question about the empirical evidence to
demonstrate that "gay and lesbian" is preferred to "homosexual" by
people in that community is characteristically trenchant.
Unfortunately, the entire relevant population cannot be observed
effectively, as Riggle and Tadlock (1999) explain:
"The most difficult part of research directly investigating gays and
lesbians is identifying lesbians and gays. The gay and lesbian
population is 'invisible.' Whether a researcher meets someone face to
face, makes phone contact, or gives out anonymous confidential
questionnaires, that researcher remains at the mercy of the
participant to self-identify as lesbian or gay."
However, substantial collateral evidence of the preference exists.
For instance, for my upcoming book on the politics of same-sex
marriage, I interviewed 50 married same-sex couples in California,
Connecticut, Massachusetts, New Mexico, and Oregon who were selected
as randomly as the just-mentioned identification limitation allows.
My recollection is that every one of the 100 people in those
interviews self-identified as "gay" or "lesbian" and not
as "homosexual." Other confirmations are available but I won't
belabor the point.
2. Regardless of the resolution in "1," however, the fact remains that
Justice Scalia's behavior on the issue is an extreme outlier.
Consider the additional evidence offered by the three dissenting
opinions in Goodridge v. Department of Public Health. Certainly no
one can reasonably question the fidelity of those state justices'
allegiance to the legal and constitutional arguments opposing what the
majority did in Goodridge regarding same-sex marriage. One can
sensibly assume that Justice Scalia would approve of the dissents.
Yet the preferred-reference ratio for the three Goodridge dissents is
7/7, or 1.00 -- a rate more than one hundred times greater than
3. To conserve space in my original post, I alluded to the counting
rules that determined the ratios reported there. To respond to
Professor Volokh's comment that only "gay and lesbian" is equivalent
to "homosexual," I note that the overwhelming number of justices'
references indeed were to "gay and lesbian," but I counted each such
reference only once (not twice).
4. In an off-list reply, Michael Besso corrected an interpretation
error in my original post:
"There is a difference between your 'preferred reference' ratio and
the percentage of usage. In the Grutter example, the preferred
reference ratio might very well be 15:42 (roughly 1:3), but that does
not mean that Justices used the preferred reference 36 percent of the
time -- it means they used it 26 percent of the time. That is: in 15
preferred uses out of 57 total uses = .263."
I thank him for the correction.
5. I was greatly amused by Mark Graber's observation that someone on
the list in effect wants to make me more Italian than I already am.
P.S. If anyone is interested in a recent paper ("What a Difference a
Court Decision Makes: Same-Sex Marriage and Goodridge") based on my
book's research, it's available online at:
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