What is sexual orientation?

RJLipkin at aol.com RJLipkin at aol.com
Tue Feb 17 16:37:05 PST 2004

In a message dated 2/17/2004 11:21:41 AM Eastern Standard Time, 
VOLOKH at law.ucla.edu writes:
Sounds quite similar to homosexuality to me; and it thus seems to me
that lawyers and moral philosophers ought to be calling it sexual
orientation without regard to whether it's a "particular instance of one's 
'object choice,'" or a special case of a broader preference.  After all, 
marriage is all about the "particular instance of one's 'object choice'" -- we don't 
marry a gender, we marry a particular person, and we want freedom in the 
choice of that person.
        In my view, this unhinges "sexual orientation" from its original 
context. As I recall, the term is of relatively recent vintage (ten years, twenty, 
???), at least regarding its contemporary use.  It was coined to refer to 
heterosexuality and homosexuality.  This is certainly not a stipulative 
definition, and if it is a definition at all, it is contextual definition that serves a 
certain purpose, namely, to facilitate a discussion of same-sex 
relationships.  If anyone and everyone a person is attracted to sexually, qualifies as a 
sexual orientation, then the term at best becomes synonymous with "sexually 
attracted to," or at worst, it becomes meaningless.  Perhaps, that's as it should 
be.  But if the term is to serve a distinct legal and moral purpose, it needs 
to stick closely to the reasons for introducing it in the first place, or show 
how no significant differences exist between the original paradigm and new 
uses, and finally,  determine whether the extended use still has any utility. I 
cannot see that explicating "sexually orientation" in terms of "what a person 
is attracted to" is helpful for lawyers, moral philosophers, or ordinary 

        This does not, in my view, prejudge the issue of whether the reasons 
justifying homosexuality can (or should) be extended to incest, etc. It simply 
states that arguments for such an extension should not be given by saying 
both are "sexual orientations."  Rather, the extension should succeed or fail in 
terms of the moral and political reasons behind the extension. Does liberty, 
for instance, militate in favor of same-sex relationships or not? We then, of 
course, can move on and ask whether liberty favors incestuous relationships, 
and the race is on.  I think this is more helpful than extending the notion of 
"sexual orientation" beyond recognition. After all, the extension is not just 
to "sisters" (or "brothers" as the case may be) but to any object of sexual 
attraction. To say I am sexually oriented toward Roman Catholics because my wife 
happens to be one, is, in my view, a distortion of ordinary language, and 
should succeed or fail only if its serves a very important purpose.  I do not see 
what that purpose is or could be.




Robert Justin Lipkin
Professor of Law
Widener University School of Law


Robert Justin Lipkin
Professor of Law
Widener University School of Law
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