On January 29, 2013 the U.S. Conference of Catholic Bishops filed an amicus curiae brief with the Supreme Court, urging the Court in United States v. Windsor to uphold the Defense of Marriage Act. In a week’s time the Court will begin hearing arguments in the case and I am hopeful that it will find in favor of equal rights for gay men and lesbians and strike down DOMA. Nonetheless, I think it’s worth examining the Bishops’ brief in Windsor. The arguments put forth in the brief reflect views held by the leadership of the Catholic Church on homosexuality in general (and not just on the issue of same-sex marriage), and these views are not likely to change in the near future. They will be advanced again and again, not only by the Catholic Church but also by many other opponents of equal rights for LGBT persons everywhere.
One of the central arguments that the brief uses to dismiss claims for equal recognition of same-sex marriages is the notion of choice. Sexual orientation, the brief asserts, is not an “immutable trait” determined at conception or birth, as is sex or race or national origin, but instead “a species of conduct”. Equal protection clauses, it continues, do not apply to a class of persons when the “distinguishing characteristic [of this class] is a product of ‘voluntary action.’” Since sexual orientation, in its view, is behavioral—a matter of choice, a species of conduct—it provides no basis for equal protection:
“This Court has accorded heightened scrutiny to only a small and discrete set of classifications, to which persons in same-sex relationships bear no relation and whose qualifying characteristics they do not share. None of the suspect or quasi-suspect classifications is defined by conduct; Windsor’s involvement in a past homosexual relationship, by contrast, is the product of her own voluntary choice” [emphasis added]
This motif of choosing sexual orientation is deeply embedded in theological and legal arguments used to deny equal rights for LGBT persons. It is, in fact, key to such arguments. If sexual orientation is a behavioral choice and not an immutable integral element of identity, then gay persons by their own will have acted to deviate from a social norm. To extend the illogic of this argument, a gay sexual orientation is no different than a choice for any particular lifestyle (you may have noticed how often this word appears in such conservative commentary). And that makes gay men and lesbians nothing more than a segmented target market or a movement, like Dadaism or the Bauhaus. How can you justify protecting a style?
If the Court redefines marriage to include persons who choose to enter same-sex relationships, then where, the Bishops’ brief asks, is the “logical stopping point” for other choices? “This Court,” it continues, “will ultimately be asked why other interpersonal relationships are not entitled to similar inclusion, and why other “barriers” to marriage (such as those posed by youth, kinship, or multiplicity of parties) should not also have to be struck down as inconsistent with this redefinition.”
Though the brief quickly claims that it is not equating same-sex relationships with polygamy and incest, the aspersion has been cast. Sexual orientation is a choice, and not a wholesome one at that.
However, the idea that one “chooses” one’s sexual orientation runs up against biology and logic both.
All credible research into sexual orientation—twin studies, chromosomal pairing studies, research into epigenetics, animal behavior studies, fraternal birth order studies—strongly suggest a biological basis to sexual orientation, as do analyses of male genetic material, investigations into the role of pre-natal hormones, and pedigree studies of traits in family trees. (A summary of the biological evidence with references can be found in the amicus curiae brief filed by the Gay and Lesbian Medical Association.)
Upon reviewing the body of current research the American Academy of Pediatrics concluded in 2004 that “current literature and most scholars in the field state that one’s sexual orientation is not a choice.” Similarly, the American Psychological Association has stated that “Most people experience little or no sense of choice about their sexual orientation.”
If sexual orientation were a choice, one would think that it could then be changed by choosing something else. But we know that is not true. The American Psychiatric Association has stated that “there is no published scientific evidence supporting the efficacy of “reparative therapy” as a treatment to change one’s sexual orientation”. On several occasions lower courts, too, have found that sexual orientation is so fundamental and integral to identity that it cannot be changed by either will or therapy and that no person should be compelled to repudiate it.
If sexual orientation were indeed a choice, then straight persons must have chosen theirs as well. But if you ask the opponents of gay rights when they made their own choice to be heterosexual, they cannot answer. “I’ve always been heterosexual,” they say.
Precisely. The overwhelming majority of gay men and lesbians throughout the world, regardless of the circumstances of their upbringing, class and parentage, will say they knew they were different from a very early age. It doesn’t matter if we had our first sexual experience at 15 or 35, gay men and lesbians know from an age before choice could manifest itself that they were attracted to persons of their own sex.
But let us assume for a moment, despite all evidence to the contrary, that it is a matter of choice. You are 12 and are not yet attracted to either sex. Let’s say you could somehow will yourself to be attracted to either boys or girls. The question is, why would you ever choose to be part of a small same-sex minority that confers no privileges (or at least none that are evident at the time) but, on the contrary, incurs great penalties. Why would you choose to adopt a sexual orientation that exposes you to bullying and the disapproval of others, one that makes it infinitely harder for you to find a date, and when you find one, to bring your date to a school dance? Why would you choose a sexual orientation that people who matter in your life would rather you suppressed? Why would you opt for one that hid its heroes and concealed its kisses?
And if it is a choice, then it must be one that is made again and again, and each time in the face of harassment and prejudice, and in the growing knowledge as we get older that this choice means that it will be harder for you to get (legally) married, elected, recruited, or funded and, if you live in any of the dozens of countries in which homosexuality is still a crime, easier to get beaten and arrested. We must be the most persistent of believers to choose so illogically.
For the purpose of argument, however, I want to imagine a way in which it could be a choice. It would have to be a choice that would not require me to disregard the scientific evidence pointing to a genetic and biological basis for sexual orientation. Nor would it ask meto discount the experience of millions of gay men and lesbians who have known they were different from a very early age. Finally, this choice would not ask me to accept the absurdity of an individual opting for a sexual orientation that incurs a heavy cost and offers no immediate added value.
For the purpose of this thought experiment, let us assume that sexual orientation is shaped at a very early stage of embryonic development by certain protein markers that regulate the sensitivity of cells to sex hormones. This is not all that far-fetched, since we know that the way in which cells respond to androgen signaling plays a role in gonad development. However, the science is less important here than the conceptual framework of the choice itself.
Let us further assume that there is a way to identify the presence of certain epigenetic markers in early development that favor the development of same-sex orientation. Now, let us also suppose that protein nanotechnology permits us to shut down these markers so that cell lineages can be programmed to mold an opposite-sex orientation.
Here is the choice: in this thought experiment I can decide whether or not to switch off the original markers that favored a same-sex orientation and allow the embryo—me—to develop otherwise. Straight. What do I chose?
In all honesty and without hesitation, I would choose not to switch off the original markers. I would not choose to be straight. How could I? It would be like choosing to be another person, someone not me.
My sexual orientation has helped shape who I am, and I like who I am. I believe I am a decent, loving man, a loyal friend and a giving lover. I am fortunate to have acquired a healthy skepticism and a curiosity about the world, qualities forged through experiences which, in turn, have undoubtedly been informed by my sexual orientation. My sexuality has taught me much about the importance of community and the art of friendship, perhaps even more than might have been the case if I had grown up differently. I have known great love, and more than once, and in this I am blessed. And in this respect, I choose to be gay, all over again from the start.
A critic might say: you were fortunate. You came out at an early age to supportive friends and an understanding family. You have studied and worked in places of tolerance. Besides, your thought experiment is flawed. To choose otherwise would be to choose your own non-existence. But what if you had to decide for your unborn son?
I say son because, though I am not a parent, I do have a godson I very much love, and it is his face I have in my mind as I pose this question. But I could have easily said daughter. What, then, do I choose?
Again I would choose to do nothing. True, our society is not yet a world in which sexual orientation is inconsequential, and in choosing not to change anything I would be complicating my son’s life. But in all the things that matter—his capacity to love and be loved, his courage and compassion, what he believes of himself and how he treats others—in all these matters his sexual orientation would be irrelevant. I would hope that I would raise him to be true to his nature, even in the face of resistance, and to live his life authentically. I would hope to foster in him the habit of asking what is the right thing to do and acting to bring it about. And I would stand by his side as he did this, proud as any father could be.
Being gay does involve making choices but not in the way the bishops believe. It means choosing to be true to yourself, to come out, to speak up, to protect the vulnerable, to live a good life.
But then again, these are not much different from the choices everyone is called to make.
List of amici curiae briefs for the two upcoming Supreme Court cases:
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