Scarberry v. McConnell--NOT (I hope)

[Scarberry, Mark]

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
Scarberry):

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;
and

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)

[snip]
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.