In response to the question by Gary Allison about what people mean when they refer to the "gay lifestyle":
I do not believe "gay lifestyle" is code for promiscuity. I think it is a sloppy synonym for "the circumstance of being gay." The word does a lot of work for the speaker. It has installed in its inner workings the feature of expressing vague but elusive ideas about choice, deviation from a norm, inappropriate bodily response to stimuli, disapproval by the speaker of the circumstance of being gay, and the power of the speaker to preempt more descriptive words that describe and disclose factual variety. Its vagueness is part of its power, because its function is to carry a series of assumptions that cannot be debated or refuted. Thus, it only makes sense that the Congressman would decline to define it, which is at best an invitation to sap its strength. It is a tribute to courts and their capacity to elevate discourse that "gay lifestyle," used pejoratively, is not a term that commonly appears in court opinions. I did a quick search to see how "lifestyle" is used by the Supreme Court. I found 32 documents with the term "lifestyle." The term is simply descriptive in all but 2 documents, i.e., in Lawrence v. Texas--1) in Scalia's dissent and, in a borderline use by Kennedy and 2) in Michael H. v. Gerald D., in Scalia's reference to the "itinerant lifestyle" of the mother. Among the contexts for "lifestyles," which the Justices have briefly referenced in mostly fact passages: nudist lifestyles, cigar lifestyle magazines, contracts containing clauses allowing for termination for lifestyles contrary to the teachings of the Catholic Church, the lifestyles of grandparents that might have an adverse impact (using a verbatim quote from the record), people who share a common religious belief or lifestyle, changing lifestyles that! might reduce newspaper readership, the parent's interest in shaping a child's values and lifestyle, a mother's "itinerant lifestyle" (per Scalia), the Indian lifestyle involving the individual's relationship with the natural world in comparison with the way that the Amish's faith dictates their lifestyle, the history or lifestyle of the Pueblos in comparison with other tribes, lifestyles associated with recreational vehicles and mobile living quarters, the feelings of individual users for their land and their lifestyle, possible discrimination against persons with alternative lifestyles, and the transition from the nomadic life of the hunt to the agrarian lifestyle. I conclude that the Court, as the rest of us, mostly uses the term as an occasional catch all to refer to something that is, variously, a way of life inherited and maintained by a group of people, casual consumer choices, groups bonded by a calling and common means of earning a living, general habits in a fami! ly that are impossible to describe except by saying they exist and sur e children, and rebellious alternatives to middle class existence. (Within the ambit of speech by gay people, the term might well be deployed to refer to strongly affiliated groups who define themselves through particular expressive attachments to consumer items, religious belief, etc.) I believe I am correct, and not being unfair, to say that only Justice Scalia uses the term "lifestyle" in connection with pejorative characterizations. In Lawrence, he says: "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, etc....They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." By comparison, Kennedy says: "The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." Kennedy was falling, albeit awkwardly, into the catch all tradition of the term "lifestyle"--his sentence had to end somewhere, and he was using it as the type of descriptor that it is in the various other contexts listed above. It also served to reinforce the connection between conduct and status that infuenced his conclusion that punishment of the act is a penalty for status. In some writing, I have talked about the function courts serve to bring into the official domain an expansive vocabulary that unearths emerging terms people are using to describe their lives and the needs they have for disputes to be resolved and rights fixed. That writing has suggested that, in this respect, courts serve a democracy-enhancing function of dispersing the power to shape the official vocabulary. Thus, they serve a populist function by giving a degree of editorial help to those whose speech is not otherwise being heard by official bodies or by the culture. The example of "gay lifestyle" points the other way. Courts retain some power of editorial discretion to avoid using words created for a rhetorical purpose (rather than for a utilitarian descriptive purpose), even though they are in widespread use. Those who believe in the usefulness of the term, "gay lifestyle," in my view, are unlikely to have their speech magnified by being adopted by courts. I suppose my empirical hypothesis, on which I base that prediction, is that it does not grow out of the need for a concrete factual description of the claims of the parties and thus lacks any power to proliferate as judges search for serviceable terms to describe the matter being adjudicated. Mae Kuykendall >>> [EMAIL PROTECTED] 07/29/03 02:11PM >>> Dear colleagues Please pardon me for asking a couple of questions so late, but I was extremely busy when you were engaged in the email discussions of Lawrence v. Texas. I have been reviewing all of the email sent to the listserve on Lawrence, and I have been given much valuable information and food for thought by your discussion. I may have missed a couple of things, however. If so, please forgive me for raising them again. First, you engaged in an intense discussion of the "gay agenda", but I missed it if there was a separate discussion as to what people mean when they speak of the "gay lifestyle." I was prompted to make this inquiry after witnessing the Congressman from Oklahoma's First Congressional District make an impassioned attack on the gay lifestyle at his recent townhall meeting. Like many people who use this term, he never defined what it meant to him. In fact, he refused to elaborate on the term despite being asked to do so. My guess is that the term is code for the stereotype of gay and lesbian persons routinely engaging in bath house orgies. Often, people bandying about the term gay lifestyle are those who have not spoken out against the sexually libertine philosophy offered up in such publications as Playboy or Penthouse, such movies as Fast Times at Ridgemont High, and such TV programs as Sex in the City. For me, this raises the issue of whether fornication laws and other laws designed to punish promiscuity are still constitutional, given that they are rarely enforced and that the predominant media portrayal of sexual mores in America is that of promiscuity. It also raises the question of why promiscuity seems to be more objectionable if gays engage in it than if it involves heterosexual participants. Isn't it ironic that the prospect of gay marriage, which might be a moderating influence on sexual promiscuity, has become more controversial constitutionally and legally than has sexual promiscuity? I also have a question about the so-called rational basis analysis used in J. Kennedy's opinion in Lawrence. It is premised on J. Kennedy's belief that sodomy laws do not further any legitimate government interest because they do not advance any government interest in promoting the health and safety of the people as opposed to the moral sentiments of the majority. My understanding of the rational basis test is that any purpose that could be rationally viewed as related to protecting someone from a potential health or safety problem is a legitimate government purpose, and any law that could rationally be viewed as providing some health or safety benefit meets the rational basis SDP analysis test. It is also my understanding that the mechanics of sexual activity defined as sodomy subject persons who regularly engage in sodomy to potential health risks. I failed to find any discussion of this in any of the opinions in Lawrence, but maybe I missed it somehow. Again, sorry to bring up an "old" subject about which you have provided a comprehensive discussion. But, I would greatly appreciate some feed back on these matters. Gary D. Allison -- Gary D. Allison Professor of Law University of Tulsa College of Law 3120 E. 4th Place Tulsa, Ok 74104 (918) 631-3052 (O); (918) 631-2194 (F) [EMAIL PROTECTED]
