Homosexual vs. gay

[Mark Tushnet]

I don't disagree with Scott here (except on a highly theoretical 
plane).  I think we can understand what's happening in constitutional 
law law best if we begin by taking its claims to law seriously, and 
defer (to the "last instance," to invoke a term from another tradition) 
the analysis of whatever linkages there might be between constitutional 
law and either politics narrowly understood or personal preference.

I would note only two things.  (1)  Sometimes, and I think this 
discussion has identified an area where this is so (and by means of a 
publicly available linguistic/stylistic analysis rather than 
mind-reading), it is difficult for people to maintain a large distance 
between constitutional law and those two alternatives.  (2)  In 
contemporary political discourse, the immediate imputation of personal 
preference as the explanation for a judge's constitutional analysis 
seems to me either more characteristic of conservative politicians than 
of liberal academics or evenly distributed across the political spectrum.

Scott Gerber wrote:

>Mark:
>
>I'm willing to agree that Justice Scalia probably disapproves of gay 
>conduct (perhaps for the religious reasons Matt Franck suggests).  
>However, my larger point is that we need to avoid conflating personal 
>views with constitutional law.  I know the prevailing approach is that 
>law and politics are one in the same, but I reject that view as a 
>matter of constitutional theory.  For example, I personally oppose the 
>death penalty, but I read the Constitution as permitting it.
>
>I touched about this theme in "Privacy and Constitutional Theory," in 
>the 2000 Social Philosophy and Policy journal issue to which you also 
>contributed.
>
>Scott
>
>
>Mark Tushnet wrote:
>
>
>  
>
>>FWIW, I reproduce a passage from "A Court Divided":
>>
>>One sentence of his opinion [in Lawrence] was widely quoted in a 
>>truncated, and misleading, form.  The sentence began, “Let me be clear 
>>that I have nothing against homosexuals,” which was quoted as showing 
>>that he was personally tolerant.  The full sentence, though, was, “I 
>>have nothing against homosexuals, or any other group, promoting their 
>>agenda through normal democratic means.”  *Homosexuals* wasn’t the 
>>object of the phrase “nothing against homosexuals”; it was the subject 
>>of the phrase *homosexuals .  .  . promoting their agenda.*  Scalia 
>>didn’t see his job as fighting in the culture war, but there was no 
>>doubt on which side he would fight.
>>
>>Scott Gerber wrote:
>>
>>    
>>
>>>I agree with Matt Franck that we need to be careful in making judgments 
>>>about the justices' "souls."  I'm not sure whether Justice Scalia 
>>>"disapproves" of gay conduct or not.  I think the most we can say on 
>>>this list is that he believes the Constitution doesn't protect it.  
>>>(FYI, as a libertarian, I think he's wrong.)
>>>
>>>Scott Gerber
>>>Law College
>>>Ohio Northern University  
>>>
>>>
>>>Mark Graber wrote:
>>>
>>>
>>> 
>>>
>>>      
>>>
>>>>There are, of course, numerous explanations for word choices, but surely
>>>>Professor Pinello's findings are interesting, even as we dispute their
>>>>significance.  We might debate the term "homophobe" but the language
>>>>choices do seem to suggest that Scalia is more disapproving of gay
>>>>conduct than either Thomas or Rehnquist.
>>>>
>>>>Mark A. Graber
>>>>   
>>>>
>>>>        
>>>>
>>>--------------------------------------
>>>
>>>Scott Gerber
>>>Law College
>>>Ohio Northern University
>>>Ada, OH 45810
>>>419-772-2219
>>>http://www.law.onu.edu/faculty/gerber/
>>>_______________________________________________
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>>> 
>>>
>>>      
>>>
>
>--------------------------------------
>
>Scott Gerber
>Law College
>Ohio Northern University
>Ada, OH 45810
>419-772-2219
>http://www.law.onu.edu/faculty/gerber/
>  
>
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