Remarks on Legal Writing and Argumemts for Non-Lawyer Audiences (and Do Ask, Do Tell) by Queersoup


I've been reading your Do Ask Do tell on my off time lately (skimming some parts and reading closely those that really catch my eye) and I'm very impressed not only with the substances of your arguments but also with how you write in a way that is easy to understand. As a law student, I'm aware that, in legal writing, we sometimes have to use these big stupid terms (legalese) to convey very simple ideas (e.g. freedom of expressive association --which in simple terms means--people can get into groups and use those groups to express certain ideas that are constitutionally protected) On one hand, long legal documents must use legalese simply for the sake of being concise and allowing lawyers and people like yourself to automatically identify the underlying concept of thick legal phrases). It is a sort of short hand. Your book uses legalese sparingly to the extent that lawyers and non-lawyers may understand what you mean. This is a talent. Your way of writing with clarity reminds me of Andrew Sullivan, one of the those rare writers who can state his point without forcing the reader to read his sentences over and over to get the idea. I hope you understand the importance of this talent for clarity in light of the need to reach people who are put off my thick unreadable writing. Your book is "easy on the eyes," in other words.


You never assume the reader knows what a legal term means. For example, you talk about "presumption" but then immediately follow the introduction of that word with a definition of it. The reason that is good is because so many of your readers will not be lawyers. My casenote (for Southern Illinois University on James Dale v. Boy Scouts of America and Boy Scouts Monmouth Council) is written mainly for law students and lawyers so I must assume the reader knows something about legal terms I use. But a writer must always be aware of who his reader is. Your reader may be anyone. Thus, you seem aware of this and make a point to write with full awareness of who the reader may be.

As for the substance of Do Ask Do Tell, I think you are indeed one of the writers that people will have to pay close attention to in the future. (like Rauch, Varnell, Sullivan, Paglia) The book itself is very informative about the issues you address. In other words, you don't go headfirst into arguments until you give your reader solid information and facts concerning the background from which your arguments emanate. This is true especially in terms of your historical perspective of "Don't Ask, Don't Tell" in the early 60s and the same idea as presented in the 90s military setting. Generally, your ideas are fresh, critically analyzed, and there is real common sense behind things you say. The title itself surely entices both liberals and conservatives to read the book. Do Ask Do Tell draws the liberal reader in while "gay conservative" draws the conservative in. Very clever of you. Your book covers a WIDE range of materials and ideas--from the psychological, to the emotional, to the sexual, to the political, to the legal. All these areas are completely interconnected and not many books other than yours really show why and how this is true.


One part of the book that really caught me was "Don't Ask Don't Tell: 1993." That part of the book explaining the First Amendment importance of the words "I am gay" is ahead of its time. The Dale court concurring opinion talks about this but that opinion appeared after your book.
Today in constitutional law class we were talking about Romer v. Evans and more specifically this idea of status v. conduct. Scalia, as you know, said that Bowers is relevant to Romer because of the holding that sodomy is not a fundamental right. He goes on to say that, in terms of whether the Colorado Amendment is valid, conduct in the context of sodomy laws can be substituted by "status" in the context of anti-discrimination laws or constitutional amendments denying gay people access to the legislature. I told the class that one of the best explanations and analysis of this status v. conduct (as applied to military setting) can be found in your book (a little promotion for you).


I think its unfortunate that the Romer majority did not focus on the idea that denying a single group access to the legislative body is a violation of a fundamental right. I do understand that it hasnt been decided that access to the legislature is a fundamental right in the same way that voting is. But the argument can be made that every individual should have the fundamental right to approach the legislative body concerning the making of laws. The Colorado Supreme Court focused on this denial of access to the legislature. The Romer majority (US Supreme Court) applied, instead a rational basis test. Its interesting to note that in most applications of the rational basis test (both in due process and equal protection cases) rational basis really means that the court will simply put a rubber stamp on every legislative enactment. Romer is an example of rational basis "with teeth" meaning the Court was unwilling to give the rubber stamp to the law.

Queersoup

 

Ó Copyright 1999 by Queersoup and High Productivity Publishing. Reprinted with permission.

The author is a law student at Southern Illinois University in Carbondale. He has authored a Casenote on James Dale v. Boy Scouts of America and Boy Scouts Monmouth Council (Nov. 15, 1999), has performed as a musician, and runs a substantial web publishing site of his own, with a somewhat libertarian flavor, given below.  For the “Queer Skeleton" Site:

http://www.queersoup.com/

"The 16 Rules" http://www.queersoup.com/16_rules_by_which_i_live_my_queer_life.htm

Note on the Boy Scout case

These sites Ó Copyright 1999 by Queersoup. He can be reached at Queersoup at aol.com