What is sexual orientation?

[Parry, John]

Just a query -- and maybe I missed this in earlier posts.  The term
"sexual orientation" seems to be working in Eugene's posts as a synonym
for "marriage or sexual partner preferences/fantasies/desires."  In
social science literature, is there a more precise definition?  If not,
then the term really loses utility pretty quickly.  People have
preferences for sexual and marriage partners along a variety of lines:
gender, race, geography, income level, enormous different combinations
of physical characteristic preferences, etc. -- apparently also
including degrees of relatedness.  Is this really all sexual
orientation?  

One consequence, I think, is that we bring in a huge issue of cultural
influences in the selection of sexual and marriage partners that for
many people would be absent or far less important in a discussion of
distinctions between same-sex and opposite-sex orientation.

Also, I thought I understood Mark's point to be an objection to the use
of sexual orientation to describe a preference for "women and my oldest
(or whatever) sister" or "men and my oldest (or whatever) brother," not
"women including various of my female relatives" or "men and various of
my male relatives."  Is Eugene's point that there is no difference
between the two?

John T. Parry
Associate Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA 15260
412-648-7006
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, February 19, 2004 12:19 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: RE: What is sexual orientation?

	Well, I do tack between a violation of some right to marry and a
violation of a right to equal treatment with respect to one's marriage
choice -- but in this, I think, I'm following the lead of supporters of
gay
marriage rights.  The gay rights movement has stressed both the general
liberty claim (to have sex, to marry, to adopt children, etc., whether
it's
a constitutional liberty claim or a moral liberty claim) and the claim
not
to be discriminated against based on whom one loves.  It has made
powerful
arguments in favor of both claims.  I just think those arguments are not
easily distinguished as to adelphiaphiles.

	But I don't quite see why this is a matter of a "class of one."
People who want to have sex with their adult siblings, cousins, etc. are
not
a class of one.  We don't know how many there are, but I am sure that in
a
nation of 300 million, there are many more than one.  They are reviled
by
the population at large for their love -- for, I argue, having a sexual
orientation (attraction to the opposite sex including one's relatives)
that
differs on a visceral level from the sexual orientation of the great
majority (attraction to the opposite sex excluding one's relatives).

	I'm not sure why this is improperly redefining sexual
orientation,
any more than the gay rights movement is improperly redefining marriage.
The gay rights movement's point about marriage is that though marriage
has
traditionally been seen, at least by the great majority, as being
between
men and women (and in Euro-American cultures of the last several
centuries,
generally between one man and one woman), that's an arbitrary and
discriminatory limitation; because male-male and female-female love is
very
similar along the relevant axes to male-female love, marriage should be
understood more broadly.  That's precisely my view with regard to sexual
orientation.  Indeed, it's conventionally used to refer to gays,
lesbians,
and bisexuals -- but I don't see why it shouldn't equally refer, given
especially the gay/lesbian/bisexual rights arguments I mention above, to
people who are oriented towards sexual attraction to their siblings (in
addition, of course, to other people of the opposite [or same] sex, just
as
bisexuals are oriented towards sexual attraction to people of the same
sex
in addition to people of the opposite sex [or vice versa]).

	As I mentioned before, perhaps this revulsion, or at least the
prohibitions that flow from it, may be justified by an unusually strong
government interest in preventing such relationships; I leave open that
possibility.  But I don't see how any of these arguments -- whether the
class of one argument or any other -- explains why a difference between
adelphiaphiles and other heterosexuals (sexual attraction including
one's
siblings vs. sexual attraction excluding them) shouldn't be seen as a
difference in sexual orientation, while a difference between, say,
bisexuals
and heterosexuals (sexual attractions including the opposite sex vs.
sexual
attraction excluding it) should be seen as a difference in sexual
orientation.

	(To be precise, I see a political reason why one might want to
draw
this distinction:  Because more people condemn incest than
homosexuality,
it's better for the gay rights movement to draw sharp lines between the
two,
and assure the public that gay rights will not lead to adelphiaphile
rights.
But I don't think this qualifies as an adequate logical reason for the
validity of the distinction.)

	Eugene

> -----Original Message-----
> From: Mark Tushnet [mailto:tushnet at law.georgetown.edu] 
> Sent: Thursday, February 19, 2004 4:45 AM
> To: Volokh, Eugene
> Cc: 'conlawprof at lists.ucla.edu'
> Subject: Re: RE: What is sexual orientation?
> 
> 
> 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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> > > > 
> > > 
> > > 
> > > 
> > _______________________________________________
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