What is a sexual orientation?

[David Cruz]

My previous reply to Eugene ignored the part of his original post (which I
had not yet glanced at), bypassed by subsequent commenters, where he
acknowledges that a deep attraction to one's sibling is different in some
respects than a deep attraction (even that phrase doesn't quite capture
the right things) toward members of a specific sex.  (I think Eugene spoke
in terms of the sexual orientation of "homosexuals," but one could as
easily conceive of heterosexual sexual orientation in like fashion.)

I suspect part of the answer for those who regard heightened judicial
scrutiny for anti-lesbigay discrimination as proper may lie in a sense of
the "group"-ness of lesbigay folk and some of the particularities of
societal and especially legal homophobic/heterosexist discrimination.  To
the extent that equal protection is a constitutional guarantee against
government complicity in certain social practices (see, e.g., Jack
Balkin), the social and historical differences between the situations of
lesbigay persons and "adelphiaphiles" (if that notion even makes sense as
an "orientation") would be constitutionally relevant.  Thus, Eugene's
questioning focus on an adelphiaphile may well implicate autonomy concerns
without involving the kind of class/status concerns that many people take
sexual orientation discrimination to implicate.


David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.