What is sexual orientation?

[krooseve at law.upenn.edu]

This is probably not a complete answer, but I think there's something 
to be said about the harm inflicted on the person and the extent to 
which the political process can be trusted.  So if the government 
says, "You can't marry anyone with the same birthday," my reaction is 
maybe that's bad policy, but I don't immediately think the Constitution 
should say something about it.  After all, in the general population 
(and among the legislators), any of us might fall in love with someone 
with the same birthday.  Hard luck for those who did, but there are 
still plenty of other people out there they could fall in love with and 
marry.  So the burden isn't overwhelming, and it falls evenly.

If the government says, "You can't marry someone of the same sex," my 
reaction is more suspicion.  A majority of the population, and of the 
legislature, isn't going to be burdened by this, and it takes away the 
whole universe of people that gays and lesbians are likely to fall in 
love with and want to marry.  Harsher consequence, less reason to trust 
politics.  

Saying "You can't marry your sibling," is sort of a middle ground.  
Supposing that most people find the idea repulsive, the burden doesn't 
fall on everyone, so I wouldn't necessarily trust the political 
process.  In that sense it does resemble sexual orientation 
discrimination.  But it isn't as harsh a burden, either--hard luck for 
those who did fall in love with their siblings, but there are other 
people out there they could fall in love with and marry.  I think that 
the fact that the entire universe of presumptive potential objects of 
affection hasn't been taken away is a meaningful distinction, quite 
apart from the question of whether there might be better or worse 
reasons for such a ban.  

Thinking of sexual orientation as setting a prerequisite distinguishes 
the first and third cases from the second, which I think is useful.  At 
the least, I wouldn't want to say that they're all on the same 
constitutional footing and the only difference is the soundness of 
governmental reasons to discriminate against one or the 
other "orientation."

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

> 	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
>