What is sexual orientation?

[Volokh, Eugene]

	Well, I can understand the argument that it's just fine for the
government to discriminate among people based on whom they are attracted to,
whom they have sex with, or whom they choose to marry.  I can also
understand the argument that it's presumptively troubling for the government
to discriminate among people based on whom they are attracted to, whom they
have sex with, or whom they choose to marry.

	What I can't quite understand is why (1) it's presumptively
troubling for the government to discriminate among people because they are
attracted to a *class* of people, but (2) just fine for the government to
discriminate among people because they are attracted to a *particular*
person.  The most important arguments in favor of 1 seem to me to apply
pretty much equally to 2.  "What business is it of the government whom I
love?" -- well, that applies to the adelphiaphile as well as the homosexual
(or for that matter a bisexual who's only slightly attracted to members of
the same sex, but who falls head over heels in love with one such person).
The government might have a better answer to this question for
adelphiaphiles than for homosexuals (that's where the government interest
comes in), but the question is just as legitimate.  "I am entitled to love
whomever I please" likewise applies both to 1 and 2.  "I'm different from
the majority, and it's condemning me as disgusting because I love
differently than it does" likewise applies to both.

	Again, perhaps discrimination against people whose sexual
orientation leads them to be open to romantically loving their siblings --
as opposed to being viscerally disgusted by such love -- is justified.  But
I don't see how it should be seen as any less a sexual orientation because
it's less focused on a class of people and more on a particular person.

	Eugene

Kermit Roosevelt writes:

> This would make more sense to me if adelphiaphilia resembled sexual 
> orientation in identifying something like a necessary condition for 
> sexual or affectional attraction.  To say that a heterosexual man is 
> sexually oriented towards women gives a certain kind of 
> information: he 
> is not necessarily attracted to all women, but he is basically 
> attracted only to women.  I don't see adelphiaphilia in this light, 
> unless we're talking about people who are attracted only to 
> siblings.  
> If we're talking about people who have a broader 
> orientation-- heterosexual, homosexual, bisexual--but also 
> are or might be attracted 
> to siblings of the appropriate gender, it doesn't fit this criterion 
> for orientation.  That is, I might very well meet and fall in 
> love with 
> a person I run into on a bus, or at a movie, or who's a friend of one 
> of my friends.  I don't think it's either useful or 
> consistent with the 
> conventional understanding of sexual orientation to say that I'm 
> therefore an automophile, or a cineaphile, or an amicaphile, because 
> those traits aren't in any real sense the basis for my 
> attraction.  And 
> if the government said that I couldn't marry anyone I met on 
> a bus, I'd 
> think that that particular restriction on freedom to marry should be 
> questioned--as, indeed, one could question restrictions on sibling or 
> cousin marriage--but I wouldn't think of it as an issue of 
> discrimination on the basis of sexual orientation.
> 
> Kim Roosevelt
> 
> Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
> 
> > 	I appreciate Bobby's, Bryan's, and David's responses to my
> argument
> > that a preference for one's sibling *is* a sexual orientation; but 
> > they don't strike me as quite apt.  In fact, it seems to me 
> that they
> > sacrifice
> > much of what is powerful about the argument against sexual
> > orientation
> > discrimination.
> > 
> > 	Indeed, sexual orientation has generally been used to refer to 
> > homosexuals, heterosexuals, and bisexuals.  But that 
> doesn't tell us 
> > why it should be definitionally limited to that -- any more than the
> > argument that
> > "of course marriage should be heterosexual-only, because marriage is
> > by
> > definition the union of a man and a woman" tells us why marriage
> > should be
> > so limited.  Bobby suggests that defining it to include anyone to
> > whom one
> > is attracted would make it too broad; but I really don't see why
> > that's so.
> > 
> > 	One man may love an unrelated woman.  Another may love 
> a man.  A 
> > third may love his sister.  For all of them, their 
> preference may be a
> > fundamental part of their emotional and spiritual lives.  For all of
> > them,
> > the choice may be partly a matter of biology (in the third person's
> > case,
> > partly because he lacks a biological constraint that most 
> people seem
> > to
> > have).  Why shouldn't we say that each of these is a sexual
> > orientation?
> > More broadly, why isn't the third person's (the adelphiaphile's, to
> > take
> > advantage of David's suggestion) claim to be treated equally without
> > regard
> > to whom he loves very similar to the homosexual's?  There is a
> > potential
> > difference -- maybe the government has an unusually strong reason to
> > discriminate against the adelphiaphile because of whom the third
> > person
> > loves, and doesn't have a similar reason as to the 
> homosexual.  But I
> > don't
> > see how one can deny the similarity, which is that the government is
> > trying
> > to treat people differently depending on the objects of their sexual
> > attraction -- their sexual orientations.
> > 
> > 	Bryan does suggest a distinction -- adelphiaphilism is quite
> rare.
> > Now it might not be so rare if one includes cousin marriages or 
> > uncle-niece marriages, which I believe many states do ban.  But say 
> > it's rare. So what?
> > How is it a justification for discrimination that the people being
> > discriminated against belong to a very small group?  How 
> does it make
> > it any
> > less sexual orientation discrimination?  Discrimination based on
> > national
> > origin is still national origin discrimination when 
> practiced against
> > a
> > small national origin group.  Discrimination against gays 
> would still
> > be
> > sexual orientation discrimination even in a jurisidiction 
> where there
> > are
> > very few gays.  Why does the number of adelphiaphiles matter to the
> > question
> > whether it should be treated as a sexual orientation?
> > 
> > 	Likewise, David suggests that the difference is that gays and 
> > lesbians are a social group or social class in the sense that 
> > adelphiaphiles aren't.  But I'm not sure why this should 
> matter.  In 
> > my view, the strongest
> > argument in favor of equal treatment for gays and lesbians is simply
> > that,
> > as individuals, they are entitled to love whom they love.  I don't
> > see why
> > the social cohesion or the social visibility of the group should
> > matter.
> > 
> > 	What's more, the social cohesion and social visibility of gays
> and
> > lesbians may in large measure flow precisely from society's 
> relative 
> > toleration of gays and lesbians.  If homosexuality were 
> held in great
> > contempt, then lesbians and gays may seem less "groupy," because
> > they'd have
> > lots of incentives to hide themselves, something that isn't 
> conducive
> > to
> > perceived "group-ness."  Perhaps this is in some measure true of
> > adelphiaphiles, too; I'm sure there are many fewer of them than of
> > gays and
> > lesbians, but if brother-sister relationships were more tolerated
> > (though
> > not completely tolerated), then perhaps more adelphiaphiles would
> > come out
> > of the closet and organize into more visible social and political
> > groups in
> > order to get still more toleration.  It's very hard to tell 
> this sort
> > of
> > thing, of course.  But it seems to me just another argument for not
> > limiting
> > "sexual orientation" to refer to those sexual preferences that are
> > held by
> > coherent groups.
> > 
> > 	Eugene
> > 
> > 
> > Bobby Lipkin writes, responding to my earlier post:
> > 
> >         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
> > citizens.
> > 
> >         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.
> > 
> > Bryan Wildenthal writes:
> > 
> > > It's fundamentally "different," as a matter of common-sense,
> > > observable social reality. It is a commonly observed social 
> > > fact of which we may take judicial (or professorial) notice 
> > > that substantial segments of the population have a 
> > > romantic/sexual orientation toward the same gender. I'm not 
> > > a psychological expert, but I am not aware of any evidence 
> > > that there is a substantial social phenomenon of people 
> > > generically sexually attracted to their siblings, but not to 
> > > non-siblings. My sense is that incest (certainly in the form 
> > > of any long-term sexual relationship) is a very rare 
> > > occurrence driven by highly particularized and individual 
> > > circumstances between the persons involved -- and of course, 
> > > the persons involved will almost certainly fall within one of 
> > > the common-sense socially recognized "sexual orientations" in 
> > > the sense in which I used the term. That is, a gay male may 
> > > in rare cases get sexually involved with a brother, or a 
> > > straight male may in rare cases get sexually involved with a 
> > > sister. I don't think it is very helpful or realistic to 
> > > refer to the sibling involvement as a "sexual orientation." 
> > > But I would concede, as Eugene and David Cruz have helpfully 
> > > pointed out, that "sexual orientation" is a surprisingly 
> > > complex concept when you scratch the surface. . . .
> > 
> > David Cruz writes:
> > 
> > > 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.
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see 
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > 
> 
> 
>