Eugene Volokh has a good analysis of the nonbinding ruling by Judge Stephen Reinhardt holding DOMA unconstitutional. Reinhardt relies on language in some Supreme Court rulings about laws which have the "bare desire to harm" a minority.
But this is a gloss on the traditional rational basis level of scrutiny, and I think Reinhardt's opinion (it is not a ruling in the sense that it would apply beyond the employee whose rights are at stake) ultimately relies mostly on the more traditional standard - though he does explicitly cite the "bare desire to harm" rule.
What is most striking about Volokh's analysis, though, is that he says that DOMA could ultimately be held rational because "sexual behavior is indeed alterable for quite a few people." This is, in fact, true. But is it relevant?
Volokh argues that because some people are truly bisexual, the government could be rational in offering benefits only to couples of the opposite sex because it could serve to steer people into acting heterosexually. (And Volokh is quite clear that this is not something he, himself, believes.)
Let's concede this would be true for bisexuals. What about lesbians and gay men who are true Kinsey 6s - entirely homosexual in orientation. It is that distinction that makes all the difference to me. The law is binary (heterosexual activity is preferred, homosexual activity is - at best -- ignored), while sexual orientation is not. And while it might be said to be rational to encourage bisexuals to act on their heterosexual impulses, is it also rational to frame the law so that people who have no such impulses are left without any legal acknowledgement for their relationships?
The vagaries of sexual activity have long plagued the issue of gay equality. It would, of course, be extremely difficult to craft a law which acknowledges the complexity of sexual orientation -- which is why lesbians and gay men think it makes most sense for the law to simply be neutral with respect to sexual orientation. But it is manifestly unfair to test laws which acknowledge only heterosexual orientation (to the complete exclusion of homosexual orientation) by their effects on sexual activity.
4 Comments for “Acting!”
posted by Richard J. Rosendall on
Once again, the argument boils down to a dispute over whether gay people really exist, or are just misbehaving heteros. I am truly tired of the fight. A friend who is an ACLU attorney and could not be more gay-friendly believes that Prop 8 was truly an amendment rather than a revision and is disappointed that his colleagues (as he sees it) let the end (gay equality) justify the means (what he considers a bad argument in the CA marriage court case). I respect him, but I don’t agree. It is just as wrong to make the means an end in themselves. I have a right to exist. My friends Alan and Will and their little boy Sam have as much right as their straight neighbors to equal justice under the law. I’ll take a victory at this point any way that I can get it. If the justices overturn Prop 8 by ruling that it was a revision, and if they are turned out of office as a result, so be it. We are too diverse a community to agree upon a single strategy, so there’s no point in tsk-tsking over it. Our lives are at stake and the other side’s, for all their rhetoric, are not; so we will prevail in the end.
posted by David Link on
Amen to that.
But just because we’re tired of the fight about whether we exist or not doesn’t mean we don’t have to keep fighting it. To paraphrase a notorious military strategist, you go to the war you have, not the war you wish you had.
And what is most important to me is that Eugene Volokh, who I have no end of respect for seemed to take the argument quite seriously. Channelling sexual activity toward heterosexuality, he argues, is a rational basis to support marriage laws. In my post I concede that might be true to deal with bisexuals, but it’s certainly not true for homosexuals. What possible purpose could the state be serving by encouraging people who have no sexual interest in people of the opposite sex to have sex with people of the opposite sex? The only way such a rule could make sense is if the state’s interest in sexual activity completely eclipses any interest in even recognizing sexual orientation, and specifically homosexual sexual orientation.
But I would even question whether that interest in sexual activity with respect to bisexuals has any basis in rationality. Ultimately, the interest must be in having people Identify themselves as heterosexual, since sexual activity, itself, is nearly always invisible to other people, while marriage is almost definitionally public. After Lawrence v. Texas, the state’s interest in prohibiting specific sexual acts (irrespective of the gender of the parties) seems to fail the rational basis test as long as the parties are consenting adults. The interest, then, in having bisexuals marry members of the opposite sex rather than a member of the same sex seems to be related to be a public one rather than a private one. Lacking any requirement that the partners must have and raise children, the state’s interest here could only be one of bisexual public identification.
The analogy, for me, is whether the state would have any similar interest in having mixed-race individuals identify as one race or another. This kind of identification is a private and complicated matter that we normally leave to the individual where race is concerned. But when marriage is concerned, it seems there is still a residual strain of thought that anyone who has a choice should make the state-approved choice of being heterosexual.
I think it would be fair to have that kind of a discussion openly and publicly. Perhaps this is, in fact, the government interest that is at stake. But at least so far, it seems to be an unarticulated part of the discussion.
posted by Bobby on
“The vagaries of sexual activity have long plagued the issue of gay equality.”
—I don’t think it’s that anymore. The theme now seems to be “we like gays fine, but we want to preserve marriage and adoption for ourselves.”
Frankly, I don’t know why the state is so obsessed with breeding. Do they want us to end up like China? An overcrowded polluted mess? Gays and straight singles and married couples that don’t have biological babies should be given tax credits.
posted by Simon on
I think this comment needs to be justified ” it might be said to be rational to encourage bisexuals to act on their heterosexual impulses”
It’s quite insulting to bisexuals and, frankly, I’m surprised to hear it from people who should know better.
Why exactly do we not deserve to choose our own partners without government interference?