What is a sexual orientation?

[Volokh, Eugene]

    Why is it obvious that a rule banning marriage between siblings, or
between more than two persons, doesn't discrimiante on the basis of sexual
orientation?  It seems to me that an affectional preference for one's own
sibling is a sexual orientation.  Most people, to the best of my knowledge,
are not sexually attracted to their own close relatives; that seems to be an
innate preference, not just a socially learned one.  But a few seem to have
a different preference, and may find themselves deeply in love with a
sibling.  Sounds very much like the story with homosexuality, though
preference for one's sibling is apparently a much more unusual preference
than preference for people of the same gender.
 
    I realize that there is a difference:  I suspect that for most of those
who want to marry their own siblings (or, in states that forbid this, their
first cousins, nephews, nieces, uncles, aunts, etc.), the second choice (if
she won't have me, I'll have to marry X) wouldn't also be a close relative.
In that respect, this is a different sort of sexual preference than the
sexual preference of homosexuals.  But I don't quite see why this
distinction should make a difference.  Spouses aren't fungible -- "Don't
worry that you can't marry Jane, you can still marry nearly any other woman"
isn't much of a response, I think, to the man (in this hypothetical, Jane's
brother) who really wants to marry Jane, not some generic woman.
 
    Preference for marriage with multiple partners, I suspect, is a somewhat
different matter still:  My sense is that most people who want to marry
several people do it out of ideology, not out of visceral
erotic/romantic/sexual attraction.  (Or perhaps visceral
erotic/romantic/sexual attraction leads many people to *want* multiple
simultaneous spouses, but those who actually decide to act on this desire do
so out of ideology.)  But why should this keep us from classifying
preference for simultaneous multiple committed sexual relationships as a
form of affectional preference or sexual orientation, albeit one that's more
ideological or rational than visceral?  After all, it still involves a
relationship which may be central to a person's life, and a relationship
that is as emotionally and morally deep as the typical one-on-one marriage.
 
    Now it may well be that these sexual orientations are somehow morally or
practically different enough from "normal" heterosexual or homosexual
orientations that we should indeed treat them differently.  Maybe there *is*
reason to gnash our teeth over the need to "protect" and "defend" some
sexual orientations from the "threat" posed by other people seeking at least
quite similar kinds of loving, committed relationships for themselves --
though perhaps the protected sexual orientations should be all the unrelated
one-on-one orientations, and not just the unrelated male-female one.  But I
don't see how it's proper to reach this result by simply definitionally
excluding an orientation towards one's sibling, or an orientation towards
plural marriage, from the category of "sexual orientation."
 
    Eugene

-----Original Message-----
From: Bryan Wildenthal [mailto:bryanw at tjsl.edu] 
Sent: Monday, February 16, 2004 8:21 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Who can marry


On the assumption the below questions were intended to be taken seriously, I
would simply point out what is obvious:
 
A rule banning marriage between siblings, or between more than two persons,
does not discriminate on the basis of sexual orientation or gender.  That
does not automatically resolve whether such other marriages should or should
not be allowed, but they pose issues completely separate and independent
from whether marriage laws should discriminate based on gender and sexual
orientation so as to deny equal legal protection and recognition to
relationships which are central to the lives of millions of law-abiding,
tax-paying Americans -- relationships which to the people involved are
emotionally, morally, and practically indistinguishable from the
heterosexual marital relationships that many gnash their teeth over the need
to "protect" and "defend" -- apparently from the "threat" posed by other
people seeking the same kinds of loving, committed relationships for
themselves.  Nuff said.
 
Bryan Wildenthal
Thomas Jefferson School of Law
 

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