What is sexual orientation?

[Volokh, Eugene]

	I'm not quite sure that the "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."
Perhaps many of us can say "Well, hard luck for me, but there are plenty of
other fish in the sea."  (Doubtless many of us do say so, since sometimes it
isn't the law that keeps us from our first choice, but the first choice's
preference for someone else!)

	But this is of little consolation to the person, and I'm told there
are some, who really feel that spouses are very far from fungible.  Maybe
it's just in the movies, but to some people there's one first choice in a
mate, and really no second choice.  If we are really talking about a right
to marry, then it's got to be a right to marry the person you really want to
marry, no?

	Moreover, if the claim isn't just a right to marry, but a right not
to be discriminated against based on sexual orientation, then that seems to
suggest that a person's preference in partners is presumptively none of the
government's business.  And that seems true whether or not the person can
easily find another legal partner.  Imagine that some legislature said
"Look, we know there's nothing we can do to make homosexuals become hetero.
But there are all these bisexuals.  For some of them, it's quite clear that
they can be happily involved with either gender.  So bisexuals at least have
to marry the opposite gender."  Assume (and I realize it's a big assumption)
that we really can tell who's the can-be-happy-with-a-man-or-a-woman
bisexual.  Still seems like sexual orientation discrimination to me, and
quite a troublesome form.  Likewise, I think, with the man who really does
romantically love his sister above all others, though he could potentially
have a moderately happy life with some other woman.

	Eugene

Kermit Roosevelt writes:

> 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."