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Equality Does Not Depend On Biology

[ 148 ] January 26, 2012 |

Cynthia Nixon’s recent comments are very wise:

Regarding her late-in-life sexual orientation switch, the “Sex and the City” star said:

I gave a speech recently, an empowerment speech to a gay audience, and it included the line ‘I’ve been straight and I’ve been gay, and gay is better.’ And they tried to get me to change it, because they said it implies that homosexuality can be a choice. And for me, it is a choice. I understand that for many people it’s not, but for me it’s a choice, and you don’t get to define my gayness for me.

Writer Alex Witchel reports that “her face was red and her arms were waving” as she continued, “It seems we’re just ceding this point to bigots who are demanding it, and I don’t think that they should define the terms of the debate,” Nixon said. “I also feel like people think I was walking around in a cloud and didn’t realize I was gay, which I find really offensive.”

Nixon may think her comments are “politically incorrect,” but they also represent what should be the clear progressive position. Obviously, people’s attractions are driven to a greater or lesser extent by biological factors, and also obviously people have agency. The precise ratios, however, are completely irrelevant to political questions about LBGT rights. The issue is not just whether the means proponents of legally subordinating gay and lesbian use will “work”; it’s that the ends are reprehensible, because there is in fact nothing wrong with being gay or lesbian. It os a profound violation of human dignity for the state to police consensual behavior among results irrespective of to what extent one’s behavior is driven by biology or agency. It is fundamentally wrong and undemocratic for the state to prevent a same-sex couple from marrying on the same terms as an opposite-sex couple regardless of whether the couple is exclusively attracted to members of the same sex, chose their partner from a number of plausible same-sex or opposite-sex partners, or for that matter is asexual but wants to codify a long-term companionship. To put too much emphasis on the biological roots of sexuality, as Nixon says, concedes way too much.

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  1. actor212 says:

    It could also just be a simple matter of realizing her orientation late in life. No one but Cynthia’s subconscious will ever know, and no one else should care.

    How come this isn’t an easily reconcilable concept?

    • Politics. And I mean that in the very best way.

      Our concept of equal protection is based on the concept of immutable characteristics (except for religion, which gets a special shout-out right in the Constitution).

      Those who are opposed to gay rights have spent quite a bit of effort to argue that homosexuality is not immutable, and political and legal decisions expanding or restricting the rights of gay people have turned on the question of whether their orientation is innate or chosen.

      • Scott Lemieux says:

        It’s worth noting, however, that basing equal protection law on whether a trait is immutable is a really terrible idea. What matters is whether there’s irrational subordination or not.

        • I agree.

          But I can’t blame gay rights activists for behaving as though the question “Should gay people have rights?” ahead of the question “Should we change the basis of antidiscrimination law from immutable characteristics to irrational subordination?”

          You know what this is similar to? Stalin getting the trait “politics” removed from the definition of genocide.

          • rea says:

            Should we change the basis of antidiscrimination law from immutable characteristics to irrational subordination?”

            Well, but it’s already based on irrational subordination and not immutable characteristics. You can’t discriminate against Baptists on the basis that they could all convert to Buddhism if they wanted.

            • But once again, religious is a special case, based on being singled out in the First Amendment, in a way that no other mutable characteristic is.

              Look at the “on the basis of…” list in the Civil Rights Act, or in the Fair Housing Act. They’re all immutable characteristics, except for religion.

              • Mark says:

                Isn’t religion the only non-immutable characteristic mentioned in the 1st Amendment because that was the only obvious non-immutable characteristic on the basis of which one might have been discriminated in 1789? Since, as you have said, the 1st Amendment acknowledges the possibility that one might be discriminated against on such a basis, is it a gigantic leap of legal reasoning to assert that other non-immutable categories might deserve, or already have, protection?

                • Rarely Posts says:

                  Personally, I’ve always thought that sexual freedom and religious freedom are fundamentally intertwined, but providing a serious explanation goes way beyond a blog comment.

                • Name says:

                  Isn’t religion the only non-immutable characteristic mentioned in the 1st Amendment because that was the only obvious non-immutable characteristic on the basis of which one might have been discriminated in 1789?

                  I seem to remember reading about some discrimination against former Tories in the new nation. Political allegiance to the British crown was not an immutable characteristic.

                • Isn’t religion the only non-immutable characteristic mentioned in the 1st Amendment because that was the only obvious non-immutable characteristic on the basis of which one might have been discriminated in 1789?

                  No. The framers of the Bill of Rights most certainly were not trying to comprehensively cover all possible classes of discrimination, and ended up including religion as a category. As you might recall, they were quite happy to countenance all sorts of discrimination based on mutable and immutable characteristics.

                  They didn’t even have nondiscrimination laws or even concepts in 1789. It wasn’t until after the Civil War that any effort at all was made to ban discrimination.

                  Freedom of religion wasn’t even understood to encompass nondiscrimination in 1789, just free exercise. It wasn’t until much, much later that the concept of nondiscrimination based on religion was found in the First Amendment.

                  In fact, the First Amendment doesn’t even list categories of discrimination at all, either mutable or immutable.

                • Pseudonym says:

                  I don’t think the First Amendment really mentions characteristics at all, mutable or not; it’s only concerned with actions.

          • J. Otto Pohl says:

            Actually the watering down of the Genocide Treaty in 1948 from Lemkin’s original definition was agreed to by a lot of other states other than the USSR. A lot of Latin American countries such as Venezuela also did not want to include political or social groups. Hence the targets in the final treaty only included ethnic, national, racial and religious groups. On the other side many of the American states including the US wanted and got the parts about cultural genocide removed.

        • DrDick says:

          True. The law does not limit equal protection for religious and political beliefs, neither of which is biologically determined and both of which clearly are personal choices.

          • What law includes “politics” in its list of protected categories?

            • DrDick says:

              I would think the First amendment, since political speech is explicitly protected.

              • Name says:

                So, if I go to work wearing an Obama 2012 button and my boss fired me, do you think I’d have a case in Court? What if he fired me on the basis of my race?

                • Rarely Posts says:

                  If your boss was the state or federal government, and if you did it on your own time and in your personal capacity, then yes, you might well have a case in court.

                • Rarely Posts says:

                  Sorry, I misread your comment. If you went to work wearing the button and you worked for the federal government, your boss would (rightly) tell you to take it off.

                  In contrast, if you campaigned for Obama during the weekend and your boss found out and then fired you, then you probably would be able to seek some legal redress.

                • Now compare to someone who wears a cross to work.

              • since political speech is explicitly protected.

                It is certainly not protected from discrimination, either back then or now.

            • Rarely Posts says:

              First, political belief and association constitute the core of those activities protected by the First Amendment, and discriminatory governmental decisions that burden fundamental First Amendment rights are subject to strict scrutiny.

              Equal protection also requires heightened scrutiny for rules governing certain types of protected activities, and in particular of political activities such as voting–the Constitutional assurance of “one person, one vote” arises from the Constitution’s promise of equal protection under the law.

              Now, the Court has repeatedly debated whether and to what extent equal protection imposes restrictions on discrimination on the basis of politics, particularly in the case of drawing legislative districts. The Court has generally refused to consider claims that a political gerrymander violates the equal protection clause, but the Court has not settled on that question (indeed, few Justices have asserted outright that it doesn’t; rather, a large number have said it is non-justiciable). In any event, a law that discriminated on the basis of politics in a different context might well be found to violate the Equal Protection clause.

              • First, political belief and association constitute the core of those activities protected by the First Amendment

                Their exercise is certainly protected, but not from discrimination. You most certainly can be turned down for a job because of your political beliefs and associations.

                discriminatory governmental decisions that burden fundamental First Amendment rights are subject to strict scrutiny

                Nondiscrimination based on political affiliation and belief is not a fundamental First Amendment right.

                If your logic were correct, it would be illegal for elected officials to consider political belief and affiliation in hiring their staff, just as it is illegal for them to consider race, but of course that’s not true.

                In any event, a law that discriminated on the basis of politics in a different context might well be found to violate the Equal Protection clause.

                Isn’t “might well be found” another way of saying “has never been found?”

                • Rarely Posts says:

                  If a state passed a law that Democrats could not vote in a general election, it would violate the equal protection clause.

                  If a state passed a law that it was illegal to be an anarchist, a court would find it unconstitutional either because it violated the First Amendment or because it violated the Fourteenth Amendment (in my view, both).

                • Rarely Posts says:

                  If your logic were correct, it would be illegal for elected officials to consider political belief and affiliation in hiring their staff, just as it is illegal for them to consider race, but of course that’s not true.

                  It’s true that they’re allowed to consider it in hiring their staff.

                  But the Court has specifically held that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Similarly, the Court has found that promotions, transfers, and recalls based on political affiliation or support are an impermissible infringement on public employees’ First Amendment rights. See Rutan v. Republican Party; Board of County Commissioners v. Unbehr; Branti v. Finkel; Elrod v. Burns.

                • If a state passed a law that Democrats could not vote in a general election, it would violate the equal protection clause.

                  At the same time, if a state passed a law that Democrats could not vote in a Republican election – one held on government property, paid for with tax dollars – it would obviously be upheld. Whereas law forbidding Muslims or Asians from voting in Republican elections would be struck down.

                  I don’t think such a law would be struck down on equal protection grounds, but on direct first amendment grounds of freedom of association, just as laws forbidding Democrats from publishing newspapers would be held to be violations of their freedom of speech, without needing to go through equal protection.

                  Likewise for your anarchist example.

                  I base this conclusion on the fact that you can be discriminated against for your politics in situations, such as hiring and housing, that don’t include first amendment rights, while you could not be so discriminated against for your religion or race.

                  BTW, you’re going to need a new handle. :-)

                • But the Court has specifically held that the First Amendment forbids…

                  But that’s the First, not Equal Protection.

                • I think. Maybe. Then again, maybe not.

                  Hmmmmm….Eh, I’m going to bed.

                • Rarely Posts says:

                  The Court often merges its Equal Protection and First Amendment jurisprudence, but the Court has made it clear that certain political activities are subjected to equal protection review (in particular, voting).

                  I’m afraid that your hypothetical primary election may be incorrect (though it’s not clear). I’m not sure that the State government could forbid Democrats from voting in Republican primaries after Tashijan and California Democratic Party v. Jones. In those cases, the Court rejected two sets of government regulations of primaries as infringing on the parties’ associational rights. In California Democratic Party, the Court struck down a rule requiring a blanket primary as forcing an unwanted association. In Tashijan, the Court struck down a closed primary system as forbidding a wanted association. So, if the Republican party WANTED to allow registered Democrats to vote in their primary, it’s not clear that the state could stop them.

                  The two hypotheticals that I posed focus on status (identification as a Democrat or as an Anarchist) in part to make it difficult to make the explicit First Amendment claims. Moreover, I would disagree about discrimination on the basis of housing and employment. Cases like Rutan indicate that the Government can’t discriminate on the basis of political identity in delivering services, benefits, etc. I would contend that political discrimination is scrutinized when the State actor is discriminating (though its clearly not strict scrutiny), but we’ve (wisely) decided not to pass (many) laws forbidding such discrimination by private actors.

                  And, yes, if we’re going to have discussions of the Equal Protection clause and/or election law, then I might need to get a new handle. I really should be in bed.

                • There are closed primaries in states all over the country, Rarely. The Florida Republican primary that will be held tomorrow is a closed primary.

                  The two hypotheticals that I posed focus on status (identification as a Democrat or as an Anarchist) in part to make it difficult to make the explicit First Amendment claims.

                  I don’t understand: those are pretty obvious examples of association.

                  I acknowledge, certainly, the distinction between state vs. nonstate actors in political discrimination (although, as we established, it’s only some state actors that cannot discriminate). This is a different situation than anti-discrimination on the basis of race, gender, religion, nationality, disability, yadda yadda yadda. So, at a minimum, we’re talking about political discrimination being treated quite differently than other discrimination.

                • Rarely Posts says:

                  A party can choose to hold a closed primary. The state can’t force the party to hold a closed primary.

                  Florida will hold a closed primary and enforce that rule because the state Republican Party wants a closed primary in Florida. If the Republican state Party wanted to hold an open primary, then Florida would not be able to require them to hold a closed primary. That’s the lesson of Tashijan.

                • Now compare that to nondiscrimination in private-business hiring.

                  The state can’t tell a business it can’t hire people because of their race. However, unlike closed primaries, a state cannot allow a business, of its own accord, to refuse to hire black people because of their race.

    • Anonymous says:

      (I lurk on this blog, I don’t ever comment, but I will delurk just this one time)

      Your statement irritates me because when I was young, I had zero interest in two things: gay sex, and cauliflower. I really didn’t like cauliflower at all and I was repelled by the idea of gay sex.

      Later in life I came to enjoy very much both of those things. I am now cheerfully a consumer of cauliflower AND gay sex. Is my love of cauliflower an inborn genetic trait that I was in denial about? Is it okay to infringe my right to eat cauliflower if not?

      People should be allowed to choose to do things with other consenting people which harm absolutely no one, whether they are forced by their awful faggot genetics or not.

      • actor212 says:

        I’m not sure why my post irritated you. After all, as you point out, people can change their minds about things.

        For my part, it’s not up to me to decide whether she was in denial in the first half of her life, but then had a realization about herself or not. She’s gay. I’m okay with that.

        • brenda says:

          For my part, it’s not up to me to decide whether she was in denial in the first half of her life, but then had a realization about herself or not.

          Well, she says right out that it not the case, and she (rightfully, IMO) finds it offensive that people need to second guess her on that. But you seem okay with that too.

      • Njorl says:

        Is my love of cauliflower an inborn genetic trait that I was in denial about?

        There is a strong genetic component to liking or disliking cauliflower and broccoli, which can be affected at puberty.

  2. Richard says:

    Good post, Scott. I agree with you 100% (although I don’t think Nixon thought her views were politically incorrect. I think she made her initial statement to explain her own situation and was somewhat astounded by some of the criticism she has gotten from the LGBLT establishment)

  3. The biological basis position was always a double-edged sword anyway.

    It took about ten minutes after the first study about a “gay gene” was published for the homophobes to claim that this just proved that homosexuality is a disease or a birth defect.

    Nonetheless, I still don’t think an actual straight man can decide that hairy man ass is actually pretty hawt after all, after going his whole life feeling the opposite. Maybe women are different.

    • Richard says:

      “Nonetheless, I still don’t think an actual straight man can decide that hairy man ass is actually pretty hawt after all, after going his whole life feeling the opposite. Maybe women are different.”

      Probably not for most men, but there appear to be exceptions. In his autobiography, Dr. John talks about the great piano player James Booker. Was very straight most of his life. Went to prison several times for drug charges. Discovered gay sex. When he came out, only sought out males for sex since he found the sex to be better.

    • Uncle Kvetch says:

      The biological basis position was always a double-edged sword anyway.

      True, but as you acknowledge, it served its purpose in many ways in the nascent years of the movement. Nixon’s statement would have made me very uncomfortable (and perhaps a little pissed off) when I was coming out about 25 years ago). Now I can see the sense of it. And that reflects a lot of progress.

      Speaking as a flat-out Kinsey 6, her “I understand that for many people it’s not” is crucial, because it sure as hell isn’t for me. But once she added that qualification I see nothing objectionable about it.

      • mpowell says:

        Yeah, I agree. It was an extremely useful argument for a long time and I don’t think remotely as much progress would have been made otherwise. Maybe I am wrong about this. Whether it is now okay to talk about how it’s not always biology, I can see both sides because we still have a long ways to go on this issue (let’s talk when we have openly gay professional football players), but it’s hard to get upset at Cynthia because all she’s doing is telling the truth!

      • Well, biology can change too, although it may be rare.

        Wasn’t there a case some years ago (in KS?) of a convicted pedophile that turned out to have a brain tumor. The tumor was removed, and the pedophilia disappeared. He was released, years later, started pedophilia again, and it turned out that he had a relapse, and the tumor was back. It killed him soon after.

        That’s an extremely rare case, and certainly doesn’t explain sexual preferences for 99.99% of everyone, but it is one example of “sexuality is biologically determined, but the biology can change”.

        Still, the vast majority of “sexual orientation is a choice” crowd seem to be liars motivated by ideology (because they personally never felt that they had a choice), OR they are closeted homosexuals, where the choice is “in the closet or out”.

    • Ed says:

      I tend to agree. No doubt Nixon is perfectly sincere but I can’t say I buy her story.

      • Erik Loomis says:

        I think the problem here is that I don’t think it’s for us to buy her story or not. She can say whatever she wants about it and it’s fine with me. Whatever makes her happy. Isn’t that the only relevant question?

        • Relevant to what?

          It’s certainly not relevant to the issue of fact regarding the source of sexual orientation.

          • cer says:

            Nixon has pretty bluntly stated her own sexual experience which, it so happens, corresponds with a lot of the literature studying sexual attraction which has demonstrated that people can and do quite commonly have fluid sexuality across their life course (especially women.) She, at least, has the common decency to acknowledge that her experience with her sexuality is not universal.

            • Nixon has pretty bluntly stated her own sexual experience

              And many Christians bluntly state that they hold their religious beliefs because they’ve received a divine revelation. You’ll forgive me if I don’t accept that at face value, either.

              Yes, I’m indecent enough to want more than subjective impressions. Boo hoo hoo.

        • Ed says:

          Of course she can say whatever she likes. And I am free to be a bit skeptical even if I don’t doubt her sincerity.

          Nor is it the only relevant issue. I’m sure some of the people who were annoyed with Nixon spent a lot of time on the battle to get people to stop talking about sexual “preference” and bring “orientation” into common usage.

          (It was often a handy way to identify dog whistle anti-gaydom – those types would invariably say preference, not orientation.)

          • cer says:

            Two points. The first point is personal. Are you suggesting she is suffering from some sort of false consciousness and you are better informed about her real sexuality? Narratives negating the sexual experiences of others can be incredibly condescending and damaging in their own right. There’s value in speaking openly and honestly about the diversity of sexual experiences. The second is a political point. I’m well aware of the way that “preference” has been used but, again, why suggest that same-sex attraction is only acceptable if you can’t help it?

      • Hogan says:

        She’s probably not trying to sell it to you.

  4. urizon says:

    The one word I haven’t seen progressives use during this Nixon dust-up? “Bisexual.” If you want to know why bi people don’t tell their gay friends, here’s your reason. Straight people often seem to have less of a problem with it, oddly.

    • Murc says:

      My understanding is that for a very long time, there was a powerful strain of thought in the gay and lesbian community that people who identified as bisexual were either betraying the cause, or dilettantes who would eventually retreat back into a ‘straight’ lifestyle after having some fun at their expense.

      It could apparently get real, real ugly at times.

      • Anonymous says:

        This has not changed all that much.

      • Uncle Kvetch says:

        In my experience, at least some of the ugliness was the product of a certain subset of self-professed bisexuals who would very smugly proclaim that all people are “naturally” bisexual, and that gays and straights were just too hung up to deal with this obvious truth.

        • pete says:

          In my experience, as a straight man who had a serious affair with a bisexual woman who had been identified as lesbian for the previous few years, I can say that some of her lesbian friends thought she betrayed the sisterhood. Happily, we rode that out, but it was tough for her for a while. This is historical, we broke up ages ago, and she is now in a long-term committed relationship with a woman, but still insists (and it sometimes takes insisting) that she is bi.

          • Anonymous says:

            I’m a bi guy and out to nearly every one my friends, gay and straight. They were all totally cool, with my gay friends perhaps being even more understanding as I think they understand a bit better what it’s like to be under the umbrella of “queer.” It may have something to do with that fact that most of my friend are under 35 and from a part of the country where LGBT people are generally fully accepted.

            One thing I will say that is that I didn’t have a choice of whether to have choice. I do believe I was born this way, capable of being attracted to both men and women. But again, sexuality is really really complicated and highly individual. I applaud Cynthia Nixon for reminding us all of that fact.

    • mpowell says:

      Having read about this issue I am convinced that there is some legitimate grounds for a feud there, but both sides really do just need to move on.

    • Anonymous says:

      Because for years “bisexual” was a tag that gays could use that would make straights feel better. I remember being touched when I saw a documentary on Montgomery Clift and his elderly brother stuck hard to the idea that Monty was bi, when it’s obvious that although Clift occasionally had sex with women in his younger years, it’s unlikely he would have done so without the enormous social pressures brought to bear in that era. But it plainly comforted his sibling to be able to say that he played for both teams.

      Asserting his “bisexuality” also made Gore Vidal feel better, apparently. He wasn’t fooling anybody, though.

  5. Anonymous says:

    Whether it is or isn’t a choice, it really shouldn’t even matter. Religion is a choice, and yet we don’t allow discrimination based on religion*.

    *In theory, anyway. I suspect there are Muslims whose experience might lead them to feel otherwise.

    • Religion gets a specific mention in the Bill of Rights. That’s why we include it with immutable characteristics in our civil rights laws.

      Take a look at the Civil Rights Act, and the “on the basis of” list. They’re all immutable, except for religion. It’s a special case.

    • el donaldo says:

      Religion is a choice? You might want to ask a believer about that. Although sectarian Protestantism in the U.S. largely presents an illusion of possible choices (you could be Methodist! you could be Presbyterian! you could be …), hence a rhetoric of choice, in truth few people of faith experience that faith as something that is chosen. Faith is experienced as something pre-volitional, and therefore an immutable characteristic. Faith chooses you, so to speak, not the other way around.

      • It’s true that they might think it’s not a choice, but PUH-LEASE.

        • Anonymous says:

          I certainly don’t experience my religious identity (non-religious) as a choice. In my youth I tried reasonably hard to choose something else, but it simply didn’t work. Is this correct? Is it really a choice, and I’m just not admitting it to myself. I certainly *could* go to church every Sunday, pretend to “pray”, etc etc. Gay people can go through the motions of being straight, too.

          I see no reason to why my lack of religion would necessarily be that different from someone else’s religious identity.

          • Anonymous says:

            So consider what happens to adopted children. A black child adopted by white parents will always still be black. I’d say most of us believe that a child who would have grown up to be gay will still be gay even if adopted by right-wing anti-gay parents. But will a child born to Christian parents and adopted by Jews (and raised Jewish) still be Christian? I have a hard time believing you’d say yes to that. Religion isn’t an inherent characteristic – it’s an acquired belief.

          • People change religions or go from belief to non-belief all the time. If you don’t believe there’s volition in matters of that importance I hope you end up with a person who treats you nicely.

            • Anonymous says:

              I believe there is often volition and choice, but many other times religious identity (and changes in it) aren’t experienced as choice at all. Much like, as Nixon points out, sexual orientation (although probably in different ratios). In both cases, a) whether it’s a real “choice” is any given case is largely unknowable, and b) we have no reason to care one way or the other, at least as far as legal equal protection is concerned.

      • nonunique says:

        in truth few people of faith experience that faith as something that is chosen

        Riiiight…there are only a handful of people out there that make a conscious, cynical choice to join a church for social, business, or relationship reasons. I can’t even think of a single one.

      • SeanH says:

        So nobody ever converts to their spouse’s religion?

      • el donaldo says:

        Hey, I’m just explaining why religion is considered an immutable characteristic in our liberal civil rights tradition. Cynical choices, conveniences, and modus vivendi are all just extras.

        • Religion isn’t considered an immutable characteristic in our liberal civil rights tradition. It’s considered very mutable indeed – so much so that the right to convert or drop out and not to be discriminated against for converting is part of that protection.

          It’s considered a special case, in that a mutable characteristic is given legal protections normally limited to immutable characteristics.

          • el donaldo says:

            Yeah, I don’t buy it. Conversion would of course be protected, as it’s an act of conscience. Not choice.

            This may be an area where legal doctrines are a thin cover for what the rhetoric actually motivates.

            • Conversion would of course be protected, as it’s an act of conscience. Not choice.

              A conversion done entirely as a matter of choice – to marry someone in a church that only marries members, to make business connections on Sundays, a “conversion” to nonreligious based entirely on apathy – is every bit as protected as a conversion based on conscience.

              This may be an area where legal doctrines are a thin cover for what the rhetoric actually motivates.

              Funny thing about the law: it is what it is regardless of the actual, or even the supposed, motivations of those who describe it.

            • Ben says:

              3000 years of beautiful tradition from Moses to Sandy Koufax, you’re goddamn right I’m living in the fucking past acting out of conscience!

            • Hogan says:

              Conversion would of course be protected, as it’s an act of conscience. Not choice.

              And people have never been known to do anything that violates their consciences. Because they have no choice.

  6. Saurs says:

    Being A Gay myself, the “homosexuality as strictly a non-choice” explanation, conceived as a philosophical defense against homophobes who’d like to pretend they are scandalized by the Decadence of it all, always rang a little false and more than a little misguidedly bigoted, mostly proclaimed by fairly well-meaning straight folk who want to explain Gayness as something one can’t help. As though it’s such a sick and perverse thing that it must be innate, biological, summat, ‘cos who would willingly choose to practice tribadism or fuck dudes up the ass? I mean, I‘d choose it, and I totally get why dudes dig dudes. But, then, I would say that, wouldn’t I?

  7. MAJeff says:

    Back in the early ’90s, I picked up a little “humor” book at Auntie’s in Spokane. It pretty well reflects my take on the issue: Who Cares if it’s a Choice?

    People should be able to choose the relationships that are most fulfilling to them.

  8. Matthew Stevens says:

    Of course, something that isn’t innate isn’t necessarily a “choice” either. None of us “choose” whether to prefer strawberry to chocolate, jazz to classical, Coke to Pepsi. We just do.

    Ultimately, as you note, you just have to affirm that there’s “nothing wrong with being gay or lesbian.”

    • MAJeff says:

      Ultimately, as you note, you just have to affirm that there’s “nothing wrong with being gay or lesbian.”

      Exactly. The moral question isn’t the gender of partners, but how those partners treat each other.

    • Incontinentia Buttocks says:

      This. The idea that any given preference is either innate or a choice is pretty obviously false. All kinds of preferences are clearly neither (music and food being two great examples).

      The whole discourse about sexual orientation and choice always frustrated me. But I find this discussion very heartening in the willingness of most people involved to accept a more fluid and multivalent account of desire. Obviously for some folks, the notion of innateness was a very important one in establishing the need for GLBT rights. But a 100% innateness account of sexual orientation has always seemed wanting to me, as has the notion that only innate characteristics are worthy of legal (and social) protection from discrimination.

      • DrDick says:

        I really like the food preference analogy myself (and use it in my classes). The available evidence suggests that there is a complex (and currently not understood) interaction between genetic and environmental (which includes biological, as well as learned) factors for both. It is also the case that while some people’s preferences are relatively fixed, others’ are quite fluid and some of us can learn new preferences.

  9. sven says:

    I would extend Scott’s point just a bit. In a democratic society, it seems like any group seeking to impose their definition of morality should be required to defend their views. When we allow biology to become the only standard for defending homosexuality, it weakens the principles on which we defend many other choices.

  10. bobbyp says:

    The argument should be about empowerment and agency….”rights” seems to confuse things.

  11. brad says:

    The “gay is better” part of that quote bugs me a bit. If she’d added a qualifier like “for me”, then okeydokey. But if some poor, sad, quite possibly brainwashed “recovered” gay man said “straight is better” after some psychologically abusive program in a church basement it’d be received very differently. There is a difference between being proud of who you are and being a dick about it.
    (Necessary note; it’s ok to be gay, I’m not, and it wouldn’t be up to me whether it’s ok anyway.)

    • piny says:

      Yeah, but it’s completely different when gay people say stuff like this, because there’s no pressure on anyone to have gay sex, no prevailing belief that straight sex is wrong and disgusting, and zero straight people forced into brainwashing at the hands of abusive zealots.

    • Katya says:

      I think, in context, it’s pretty clear that she meant it was better for her, personally. It didn’t read at all like she was trying to convert others.

  12. rea says:

    You can’t always reduce the compplex to binary choices. Sexual orientation is more complicated than just “straight or gay.” It’s more complicated than just “genetic or environmental”. It’s more complicated than “inherent or choice”.

  13. Scott P. says:

    It is a profound violation of human dignity for the state to police consensual behavior among adults irrespective of to what extent one’s behavior is driven by biology or agency.

    So you are opposed to the minimum wage?

    • Erik Loomis says:

      How the hell is someone working for minimum wage engaging in a consensual relationship on the equivalent of a romantic partnership, unless you actually believe in Gilded Age ideas that the immigrant worker and plutocrat were entering into an equal contract. And if you do believe this, then you would be completely without morals.

      • R Johnston says:

        Silly Erik. No one really needs a job and employers are always transparent about the value added by employees and the working conditions faced by employees, allowing potential employees to negotiate with employers under conditions of perfect information and without any pressure to take a patently unfair deal.

        Things like needing to eat, needing to stay warm, employers lying about safety conditions, and employers being completely opaque with employees about their cost structures and profit margins never, ever happen. Any deal between employer and employee is always fair and is never the result of coercion or deception by the employer or outside forces.

        And even if an employee is coerced by outside forces–which doesn’t ever really happen, of course, but can be assumed for the sake of argument–it’s only fair to allow employers to take full advantage of that coercion and force employees to bear the full cost of that coercion.

      • Scott P. says:

        On the biological-consensual continuum, sexual orientation is far less consensual than employer-employee relationships. Your argument doesn’t just tell against the minimum wage; it also applies to regulation of gun sales, marriage laws, public accomodation laws, professional certification, and most of the regulatory apparatus of the modern state. If you are going to make an argument indistinguishable from Ron Paul’s platform, expect to get called on it.

        One of the cornerstones of liberalism is that nobody should be discriminated against for who they are or who they are born as. Our legal system is founded on the significance of intent as an essential element of the crime, vs. someone who is incapable of rational action. Blur those distinctions, and you open the door to a further restriction of liberty just as much as you facilitate its liberalization.

    • MAJeff says:

      That’s some trolling there.

  14. Rarely Posts says:

    I’d just comment that I used to have trouble accepting Nixon’s type of statement at face value for two reasons:

    1) It’s the opposite of my experience. I experienced being gay as not my choice and as a fundamentally biological experience–feeling attracted to men is almost like being hungry; I just don’t feel like it’s a product of my messed-up brain; and
    2) I’ve hooked up with a lot of guys who were just curious or bisexual or “straight,” and now a lot of them are gay. So, it was easy to view them as just people not accepting their homosexuality until they grew up (or had really great sex).

    But, now that I’m older, I realize that my personal life experience may not encompass all of human experience. So, if Nixon experienced it as being a choice, she knows more about that than I do.

    • Pseudonym says:

      Well, being gay is the opposite of my experience, but I’ve come to accept that others may have different experiences.

      Actually, in a sense, I’m not sure if Nixon’s statement is really empirically meaningful to an outside observer. Is there any observable difference at the individual level between someone “straight” choosing to be gay and someone (perhaps latently) bisexual recognizing or deciding to focus on their same-sex attraction?

      At a societal level it does seem interesting that in certain all-male situations, such as prison and the “rum, sodomy, and the lash” of the Royal Navy, a relatively large portion of the population appears to participate in same-sex activities. Is this just a stereotype, or is it evidence for mutability in orientation, or is it a case of bisexual men choosing to have gay sex because straight sex isn’t an option? Or is it more a manifestation of power relations and coercion than consensual attraction?

    • Thlayli says:

      Remember what the gay community is up against: the notion on the right that all gays decided at around age 20 “I’m going to have teh buttsecks because I hate Christianity”.

      The truth is, as it almost always is, somewhere in-between.

      • R Johnston says:

        The truth is, as it almost always is, somewhere in-between.

        Uh, no. Not even slightly true.

        The truth is the truth. It’s a fixed point. Half way between not the truth and entirely fucking random is entirely fucking random.

        The truth is that we don’t know exactly what determines sexuality, but we do know that it’s neither whimsical nor entirely genetics. The other truth is that anyone who you don’t want to fuck who believes that it matters to anyone other than him or herself who you’d like to fuck is an asshole.

  15. Pseudonym says:

    Somewhat off-topic question: what’s the liberal justification for allowing same-sex marriage but not permitting polygamous marriages? If there’s no rational basis (or whatever relevant standard, IANAL) for restricting marriage to opposite-sex couples, what’s the rationale for restricting it to couples at all?

    • R Johnston says:

      There is no justification against allowing poly-relationships of any sort, polygamous, polyandrous, or otherwise. Legal marriage, however, is a very specific kind of relationship that doesn’t make a whole lot of sense outside the context of two people. Marriage, from a legal standpoint, involves things like default rules about power of attorney in case of disability and default rules in case of death without a will. Default rules are what legal marriage is all about. The default rules legally involved don’t depend even a little bit upon the sex of the people involved in the marriage relationship, but they do depend upon the number of people in the relationship.

      There is no liberal case for disallowing, based upon the number of people involved, people to come to whatever mutually agreeable living, parenting, and testimentary relationships they come to. However, default rules become a lot more complicated and a lot less satisfactory to those bound by them the more people they involve.

      Liberally speaking, it’s perfectly reasonable to say that the state is competent to prescribe default rules governing intimate relationships between two individuals while maintaining that the state is incompetent to prescribe default rules in intimate relationships involving more than two people.

      • Pseudonym says:

        Thanks, that’s a very illuminating answer, particularly for someone not (yet?) personally familiar with the intricacies of marriage. The default rules you mentioned though don’t sound like they’d necessarily have to be bidirectional. I suppose that’s why they’re only default rules and not set in stone or unachievable by other means. Does that mean that marriage is (or should be) legally just a standardized bundle of contracts commonly found useful, without any exclusive rights? I.e. should all the rights granted by marriage be available piecemeal outside of marriage via legal contracts?

        But I guess in a sense the state isn’t really prescribing default rules for intimate relationships between two individuals, except in the case of common-law marriages, because in choosing to get married the individuals are entering into a contract that explicitly specifies rules of power of attorney, death without a will, etc. Or is that just me harping on an insignificant semantic issue?

        • R Johnston says:

          The default rules involved in marriage don’t have to bidirectional, but absent that a lot of the default rules associated with marriage are entirely arbitrary or inequitable.

          Consider power of attorney in case of disability. It’s a power that doesn’t make much sense without residing in a an individual. You could have a default rule that applies it to some person within a plural marriage, but it’s hard to imagine how such a rule would be anything other than arbitrary or how it would be satisfactory to most people involved in a plural marriage. There’s no way to consider the various partners in a plural marriage equals and to also prescribe a default power-of-attorney where the power of attorney, which really needs to reside in an individual, resides in an individual.

          Consider default inheritance rules. One partner being the default beneficiary of another exclusive partner is an easy and sensible default rule. Multiple partners may not make it impossible to come up with a default rule that’s equitable in cases of partners with differing needs, but at the least it complicates the matter. Different people have different lives and different needs, even if they’re in a plural marriage.

          Consider whether a marriage is dissolved upon the death of an individual participant in the marriage or upon a divorce of an individual from the marriage. I admit to a lack of imagination, but I find it hard to imagine satisfactory default rules to cover such cases involving plural marriages, while default rules are obvious in the case of marriages between two people.

          Consider rules regarding parental rights and responsibilities. The more people involved in a marriage, the more complex and arbitrary such rights and responsibilities become.

          Consider whether or not a child in a marriage is covered by a family plan medical insurance policy held by a participant in that marriage. In a world where medical insurance is generally paid for or issued by someone other than the government, that becomes a really difficult question to answer with a reasonable default in the case of plural marriages.

          A marriage is a standardized bundle of contracts between various individuals and, in the case of some of the contracts, the state. Some of the rights traditionally associated with marriage can be relatively easily associated with plural marriages by default rules–i.e. default hospital visitation rights, in which case all marriage participants get them, or default rules regarding whether specific relationships outside the marriage constitute a breach of the marriage contract, where a default rule that if it’s outside the marriage it’s a breach, though not if the parties contract otherwise, isn’t unfair to anyone–but many can’t.

          • mr. sc says:

            would the rule that spouses can not be compelled to testify against one another mean that it would make much sense for say the mafia to have a mass multiple marriage?

    • what’s the liberal justification for allowing same-sex marriage but not permitting polygamous marriages?

      On the level of antidiscrimination law, the law currently provides benefits, protections, and recognition for monogamous marriage among heterosexuals but not homosexuals. It does not provide that particular set of benefits, or any benefits, to anyone else for polygamous marriages, so no one else can claim they’re being discriminated against in not receiving those benefits.

      It would actually take changing the law to allow for polygamous marriage (for instance, how are estates and custody of children handled in the case of a husband with three wives who dies without a will? We know exactly how that works in a single marriage), but same-sex marriage merely requires the application of existing laws in a non-discriminatory manner.

      Where I’ve looking at these marriage issues through the lens of antidiscrimination, I really don’t have an developed answer to the larger question.

      • Rhino says:

        Speaking as a man in a polygamous marriage, I would just like to add that such relationships are more common than people think, and that law is going to be required on the issue fairly soon.

        • rea says:

          Speaking as a man in a polygamous marriage

          I take it you me a de facto marriage and not a de jure marriage, unless you’re a resident of a foriegn country . . .

          • Rhino says:

            I do mean a de facto marriage, yes. One of the more ironic problems of plural marriage is they actually lend themselves extremely well to the acquisition of property and so forth, while having no legally recognized method of protecting the property rights of the spouses, should death or divorce rear their heads.

            • Njorl says:

              It can get even more complicated. Polygamy has generally meant polygyny. That isn’t too complicated. Nowadays, de facto marriage webs are forming. Trying to write laws to deal with it would be a nightmare. If it were ever legally sanctioned, it would almost have to be through contract law.

              I think it is much more likely that people will get to have one spouse, regardless of other intimate relationships.

              It does make me wonder about common law marriages. I think if a couple live together long enough in some states, that they are eventually considered to be married. What if a trio live together the required duration? Will we need the new crime “criminally negligent bigamy”?

              • Rhino says:

                I would be content if I were in fact actually allowed to create a plural marriage through contract law. As it is, existing Canadian law actually makes it impossible for my ‘de jure’ wife to give up any of her rights, or share them with, our wife.

                And don’t even get me started on the people who equate polygamy with religious extremism, child brides, and incest.

                The parallels to the gay marriage fight are fairly obvious, and there is essentially no hope at all that anything will change in our lifetimes.

  16. Rarely Posts says:

    Also, given this topic, here’s a great link to Lambda Legal’s Sh*t Homophobic people say:

    http://lambdalegal.org/multimedia/homophobic-people-say

    The best clip (and most on point) is Coulter at the end. She says that

    all those people who were born gay, they’re overwhelmingly conservative or apolitical. And all those angry gays, causing trouble for everybody, I don’t even think that they were born gay. I just think they’re angry, they’re angry at their fathers.

  17. piny says:

    I think that the basic point about legal equality and freedom is valid. The focus on legal status less so.

    Queer people have an interest in this issue–what queer orientation consists in, what it feels like, what it means–that goes way beyond a rationale for anti-discrimination laws. It’s an important aspect of our lives and psyches. We also have to deal with a lot of misinformation and censorship–many queer people can’t talk about their orientation at all, let alone in depth.

    And bigots have power over queer people that extends way beyond the ability to support legal discrimination. A lot of queer people are raised, educated, and employed by bigots. So for that reason, it’s important to challenge the idea of sexual orientation as a form of rebellion, or as disordered behavior.

    So there are heated arguments about all of this even apart from issues like political advantage.

  18. Allin58 says:

    So she means there are grey areas to these issues? From watching the GOP debates I thought everything was black and white. I guess I learn something new every day. Good for Nixon! She stood up to both sides on that one.

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