What is sexual orientation?

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Feb 18 21:34:13 PST 2004

	One more note on this, just so I don't seem like too obsessed with
romantic fantasies.  Let's even consider the brother who really wants to
marry his sister, but who realizes that if he can't, well, the world won't
end, and he'll probably find someone to love.  As to this person, we might
say that the burden on his life is modest.

	But remember that, when the question is whether or not you can
marry, the burden is already modest.  If you can't marry the love of your
life, you can still live with him, have a sexual relationship with him, in
most states adopt children with him, own property with him, and so on.  The
burden is far from nil -- but it's not "you can never have a satisfying
relationship with anyone."  So even if the burden on the brother who loves
his sister but who isn't an incurable romantic isn't vast, we aren't
discussing vast burdens here in any event.

	Moreover, today gays are seeking the right to marry -- but
adelphophiles don't even have the right to have sex.  I've argued that
Lawrence v. Texas might well support a constitutional right to engage in
adult incestuous sex, but many defenders of Lawrence have disagreed with me,
and even I don't claim that it's an open-and-shut case under Lawrence.  So
today the burden on adelphophiles may be less in one way than on gays -- if
they can stand to be with their second choice, they can at least marry her.
But in another way it's greater:  If they want to be with their first
choice, the relationship will be criminal, and not just not officially
recognized by the state.  So I'm not at all sure that the "isn't as harsh a
burden" argument quite works even for those brothers who are willing to pass
over their true love for some other potentially true love.


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."
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