What is sexual orientation?

[Mark Tushnet]

Isn't the analysis of the Olech case (discrimination against a class of one) relevant to this discussion?  I have to say that I find Eugene's posts systematically tacking between a discussion of a violation of some right to marry and a discussion of a violation of a right to equal treatment with respect to one's choice regarding one's -- how to put it? -- marital object.  The latter violation should be analyzed, I would think, in traditional "class-based" terms, including the possibility of a class of one (or two or a few -- if, as seems to me unlikely, there are people who take as their marital objects their siblings without differentiating among them).  So, what's the right way to analyze discrimination against a class of one?

Prior to Olech, and maybe after, I thought that the question was whether the government intended to deny the particular discriminatee access to the thing denied him/her/it.  (Some of Eugene's examples seem to me to have this structure:  The government is preventing me from marrying the particular person who is my marital object, which he describes as a denial of equality predicated on my sexual orientation.  [Incidentally, I agree with Bobby Lipkin that Eugene's engaging in a stipulative redefinition of a conventionally understood term, and that analytic clarity would be improved if we all agreed that "sexual orientation" in these discussions simply *meant* the conventional classes to which most people think the term refers, reserving some other term -- I've suggested "discrimination based on the choice of marital object" -- for the problems Eugene is posing.])  If so, I doubt that the claim of a violation of the right to equal treatment could be made out in the cases under 
discussion.  Alternatively, the discimination is against the entire class of sibling-lovers with respect to their choice of marital objects.  Then, however, Eugene's focus on the denial of a particular choice by a particular person seems misplaced.

----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Date: Wednesday, February 18, 2004 11:11 pm
Subject: RE: What is sexual orientation?

> 	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 
> governmentto 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 
> applypretty 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 
> interestcomes 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 
> becauseit'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.
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