Legal Commentary

A recent poll conducted by CBS on the repeal of Don?t Ask Don?t Tell reveals some a fascinating result.  Support for repeal depends substantially on whether you call ?them? ?homosexual? or ?gay.?  Fifty-nine percent support allowing "homosexuals" to serve in the U.S. military while 70 percent support allowing "gay men and lesbians" to serve in the military, a jump of 18 percent.

http://www.cbsnews.com/blogs/2010/02/11/politics/politicalhotsheet/entry6198284.shtml

(h/t Joe.My.God) I have always been skeptical of the need to frame questions of fundamental rights through a marketing lens, and even of the significance of polling data in deciding such rights (in contrast to Nate Persily).  But the results of this poll reveal that changing the label from ?homosexual? to ?gay men and lesbians? carries far more weight than the well-researched and indisputable constitutional arguments law professors have produced over the past two decades.  I imagine that it?s sex-negativity that drives this shift - ?homosexual? is all about ?sex,? while for most in this country ?gay men? might evoke Will and Grace, and ?lesbian? brings the ever-popular Ellen DeGeneres to mind.  Indeed, in the 17 years between Bowers v. Hardwick and Lawrence v. Texas, ?gay? made (at least part of) the difference.  The 2003 Supreme Court addressed ?gay persons? and ?gay men and lesbians,? and thus did not have to confront its own sex fears to decide the meaning of privacy.   For the law professor crowd, which spends its days poring over theory, it is indeed humbling to think that our work would so easily trumped by a label.