Scarberry v. McConnell--NOT (I hope)
Michael deHaven Newsom
mnewsom at LAW.HOWARD.EDU
Tue Feb 1 15:37:32 PST 2000
I think that the term "gay lifetyle" is insulting for all of the reasons
advanced by Cruz. It stereotypes and thus marginalizes and oppresses.
Michael deHaven Newsom
School of Law
"Scarberry, Mark" wrote:
> I'm surprised and a bit puzzled by David's reaction to use of the term "gay
> lifestyle." I would really like to know whether others reacted the same way.
> If the term is insulting, I will stop using it.
> Run a web search on gay lifestyle (as I just did), and you will find lots of
> pro-gay sites. I thought the term "lifestyle" was popularized by people who
> wanted to suggest that certain forms of behavior are not matters for common
> moral judgment but rather just the way people live--and one lifestyle should
> not be judged as better or worse than another. I certainly did not believe
> use of the term was considered judgmental, nor do I think that all gay men
> live the same kinds of lives. (Perhaps I should have used the term "a gay
> lifestyle" rather than "the gay lifestyle.") I thought it was more neutral
> than referring to "the practice of homosexual sodomy" as the Court has done.
> In part I used the term precisely because of the vagueness of which David
> complains. We don't know exactly what Dale advocated as co-president of a
> college gay organization. A gay lifestyle could include lots of variations,
> but I suppose the common thread would be that men engage in sexual activity
> with other men (or monogamously one man with one man). Or at least that a
> man is open to engaging in such activity at the right time and with the
> right man. I doubt most people would say that a man was living a gay
> lifestyle who was committed to celibacy or to having (as difficult as it
> might be) sexual relationships only with women. Thus I wanted to say that
> Dale was advocating the appropriateness of at least some homosexual conduct.
> I think it is pretty reasonable to infer that he was advocating that, given
> what we do know. I don't know what the BSA knew when it removed him, but
> itmay well have been reasonable for the BSA to infer such advocacy from his
> leadership position in the gay organization.
> Assuming we can get past the issue of the term I used, I would like to know
> whether David or others believe the opinion (actually a fragment of a
> possible opinion by an unnamed Justice, certainly not by any Justice
> 1) deals adequately with the argument that the factual determinations of the
> NJ Supreme Court ordinarily would not be reviewed by the US Supreme Court;
> 2) deals adequately with Marty Lederman's point that the BSA mentioned only
> orientation and not advocacy or conduct as the reason for removing Dale as a
> leader at the time it removed him.
> Mark S. Scarberry
> Pepperdine University School of Law
> mark.scarberry at pepperdine.edu
> -----Original Message-----
> From: David Cruz [mailto:dcruz at LAW.USC.EDU]
> Sent: Sunday, January 30, 2000 5:10 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: Scarberry v. McConnell--NOT (I hope)
> Without a more transparent rendering of what Dale is alleged to have said
> and done, it is impossible to determine the nature of the alleged conflict
> with BSA tenets. "The gay lifestyle" is no more informative than would be
> invocation of "the black lifestyle" or "the Jewish lifestyle," and I think
> it telling that one virtually never sees those phrases bandied about in
> educated, civil discourse.
> -David B. Cruz, USC Law (Cal.
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