What is sexual orientation?
VOLOKH at law.ucla.edu
Thu Feb 19 12:52:32 PST 2004
Hmm; it seems to me that many defenders of male-female marriage
would make a very similar argument. We're losing sight of common sense
here, they'd say, and are off in law professor la-la land. Marriage has
long been commonly understood as referring only to male-female unions (yes,
there may have been some exceptions through history, but surely for many
centuries in our culture this is exactly how it has been defined). It is
totally tied up with the basic nature of people as being of two genders. It
has long been abstracted from the myriad of other highly individualized
relationships between people. The basis for limiting marriage to
male-female couples is the simple reality that the human race is divided
into two genders and that this is a stunningly obvious and fundamental
aspect of human nature that, coupled with the connection between male-female
coupling and children, and the fact that the overwhelming majority of people
desire members of the opposite sex, obviously justifies different treatment
for straight marriage and gay marriage.
The gay marriage movement has rightly rejected such arguments based
on perceived common sense, traditional understandings, or arbitrary (and
even not entirely arbitrary) definitional moves. It has argued that,
*despite* the historical understanding of marriage, and the biological and
psychological nature of most humans, gay couples are just as entitled to be
treated as married couples as are straight couples. I don't see how we can
use definitions, history, or even purported common sense to simply
categorically exclude people whose sexual desires and romantic attractions
-- whose orientation and affectional preference in sexual matters -- differ
both from homosexuals, heterosexuals, and bisexuals.
As to biology, there is, to my knowledge, strong evidence that most
people have an innate preference not for all members of the opposite sex,
but for unrelated members (though that might be psychologically
operationalized as members of the opposite sex with whom one wasn't raised,
since people can tell that more readily than an actual genetic connection).
My suspicion is that most people who are attracted to siblings lack this
biological constraint. I may well be mistaken; perhaps the causes for
attraction to siblings are purely experiential, and not at all biological
(whether genetic, congenital, or otherwise). But it seems to me at least
quite likely that the absence of an innate biological constraint is itself
biological in origin.
Bryan Wildenthal writes:
> Exactly (ditto-ing John Parry).
> I think we're losing sight of common sense here and are off
> in law professor la-la land. Sexual orientation has long
> been commonly understood as referring to which gender(s) a
> person is generally attracted to. It is totally tied up with
> the basic concept of gender. It has long been abstracted
> from the myriad of other highly individualized grounds for
> romantic/sexual attraction. For thousands of years before
> German psychologists coined the term "homosexual" in the
> 1890s, it has been recognized that people have generic
> tendencies to be attracted to one or the other (sometimes
> both) genders, and that this is a concept separate from
> whatever other factors drive particular attractions to
> certain individuals. Just read "An Ephesian Tale" by Xenophon
> of Ephesus (c. 200 AD) (matter-of-factly depicting parallel
> gay and straight romantic stories -- blessedly, there was no
> religious right then obsessed with the issue).
> The real, common-sense issue is not why homosexuality should
> be treated more protectively under the law than those
> inclined to a particular incestuous relationship, but why
> heterosexuality should be treated more protectively than
> homosexuality. The latter two are fully parallel and
> comparable, although obviously there has been a widespread
> tendency throughout history to praise and support
> heterosexuality while condemning homosexuality. But even
> those who condemn homosexuality have generally betrayed a
> recognition and concession of its basic comparability and
> parallelism to heterosexuality. They just don't like it.
> Neither homosexuality nor heterosexuality are fairly
> comparable to or parallel to, in any meaningful conceptual
> sense, to incest, bestiality, or whatnot.
> Eugene seems to question on what basis we can or should
> abstract out the issue of what gender a person is generally
> attracted to, from other types or causes of sexual
> attraction. I agree with Eugene that numbers are not a
> sufficient basis to draw a distinction, although I do rely in
> part on the fact that there are a hell of a lot of gay people
> out there, whereas one hopes there are fewer with a tendency
> to incest, necrophelia, or what have you. But I say the
> basis for the distinction is the simple reality that the
> human race is divided into two genders (with some gradations
> and marginal categories, as scholars of transgenderism and
> intersexuality will point out) and that this is a stunningly
> obvious and fundamental aspect of human nature obviously
> different in kind and importance from other human
> characteristics. So it simply makes sense to treat sexual
> attractions keyed to this basic human attribute as a
> different conceptual category than other, more specific
> grounds for individual sexual attractions.
> There is also overwhelming evidence that the tendency to be
> attracted to one or the other (sometimes both) genders is
> inborn and not chosen. Even the religious right advocates of
> "gay conversion" concede this basic fact, if you read their
> literature carefully (as Andrew Sullivan has pointed out).
> They think it's possible to change, but darned difficult, and
> they concede that gay people did not just casually "choose"
> to be so (despite the occasional idiotic statements to that
> effect from preachers or politicians on TV). I think there
> is far less evidence, if any, that any people are imbued
> innately with any tendency to get involved in incestuous,
> bestial, or whatever other more specific type of sexual relationship.
> Bryan Wildenthal
> Thomas Jefferson School of Law
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Parry, John
> Sent: Thursday, February 19, 2004 9:34 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: RE: What is sexual orientation?
> 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
> -----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.)
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