Millean Liberty and Sexual Orientation: A Discussion of Edward Stein's "The Mismeasure of Desire" Author(s): Martha C.

Nussbaum Reviewed work(s): Source: Law and Philosophy, Vol. 21, No. 3 (May, 2002), pp. 317-334 Published by: Springer Stable URL: http://www.jstor.org/stable/3505208 . Accessed: 29/09/2012 22:31
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MARTHA NUSSBAUM C.

MILLEANLIBERTYAND SEXUAL ORIENTATION: A DISCUSSION OF EDWARDSTEIN'S THEMISMEASURE DESIRE OF

(Received 20 August 2001)

Ed Stein has writtenan impressivebook, and one that will advance the public debate about homosexuality and the law. Its rigor and clarity, its wide-ranging and ingenious arguments,and its accessible style make it a paradigmof public philosophizingon this very fraughtand divisive topic. Such disagreementsand criticisms as I shall express are within the context of that general assessment. Stein's book is primarilyabout the scientific researchprogram into the putative genetic or otherwise biological origins of sexual orientation. Only briefly in its final chapters does he tackle the difficult ethical and legal issues that arise no matterhow we view the scientific debate. I shall make those issues my focus, though they will requireme to delve back into Stein's scientific argument. First, then, I shall point to what I think is an unclarityat the heart of Stein's account of naturalhumankinds and thence of the essendebate. I shall suggest that once we face this tialism/constructivism we will see that the whole issue of naturalhuman kinds unclarity is less importantto the legal and ethical issues surroundingsexual orientationthan Stein suggests. Second, I shall give my own view as to how our society ought to handlethe issue of sexual orientation in law and public policy. Third, I shall give some reasons why I think that America will not take that course any time soon. Given that the course I prefer will not be chosen, I believe that there is a more sympatheticand plausible account than any Stein offers of why manygays andlesbians thinkthatan appealto the immutability of sexual orientationmay help their cause in the public domain. Although for the reasons I will have given I do not myself support that argument, thinkit is important understand I to how it goes; so I shall try to lay it out in my final section.
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Law and Philosophy 21: 317-334, 2002. ? KluwerLaw International2002.

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Stein argues that if sexual orientations have a primarily genetic humankinds"(p. 103). origin, then it follows that they are "natural Traitsthatdo not have a primarilygenetic origin may also be natural human kinds (e.g. p. 102); but, given that genetic origin is sufficient for naturalness,the interest in establishing a genetic origin may be plausibly construed as an attemptto establish that sexual thansocially constructed orientationsare naturalhumankindsrather kinds. As Stein defines the notion of a naturalhuman kind, a kind is natural just in case there are scientific laws, applicableto all human cultures, that involve it: "the group plays an explanatoryrole in a scientific (or social scientific) law" (91). Stein sometimes also puts his point another way: "a group is a naturalhuman kind if it is applicable to people in all cultures"(86). What I now want to point out is that Stein's account of naturalhuman kinds, so articulated, is extremely capacious: for it says ratherlittle about what sorts of scientific laws we need to find. In particular,Stein does not insist that there be scientific laws explaining how individuals become members of the kind. It seems to be enough for his purposes that once one is in the kind already,no matterthroughwhat contingent or social or idiosyncraticpathway,there are then laws explaining what will happento one as a memberof thatkind. Twice (102, 264) Stein makes it very clear that this openness is deliberate:he cites as an example of a naturalhuman kind "being a woman who has Ofcourse, as he himself points out, becominga woman given birth." who gives birth is not explained by any scientific laws so far as we know; it depends on decisions by the woman, her partner,and so on. What makes this category a naturalhuman kind is simply the fact that conception and birth, though theorized differently in differentcultures,is a biological process explainedby a unitaryset of biological laws.1
1 Sometimes Stein obscures this issue: for example on p. 269, when he says I "Most of us ... are essentialists about handedness," suppose he means that we think there are scientific laws explaining how people come to be left-handedor not right-handed, that we think there are scientific laws that apply to us once we become handedthroughsome process, no matterof what sort.

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Consider,then, how many kinds that are in significantrespects social turn out also to be, under Stein's definition, naturalhuman kinds. Being a smoker is a naturalhuman kind. Even though the factors that explain why someone becomes a smoker are probably largely social and personal, and we have no reason to think that scientific laws play a centralrole here, once one is a smokerthere are many universalbiological laws thatexplain what happensto one andwhy one gets the diseases one subsequentlygets. Being a runner, again, will count as a naturalhumankind:althoughthe reasonswhy people go in for runningare surely more social and personal than biological, there is a whole scientific discipline of sports medicine that is by now full of laws, fully cross-cultural,chronicling the damage to tendons, knees, and hips that this foolhardy choice is likely to bring about. Finally, and this is the example on which I want to focus for a bit, being a bassoonist is also a naturalhuman kind. Even though it is only in certain cultures that people would ever think to play such a strange instrument,once a person from anywherein the world does take up this way of life, there is, again, a whole disciplineof music medicine,closely relatedto sportsmedicine, that is ready with scientific laws to trackand treatthe damage to nerves in the lip that comes from the repeated pressure of the reed of such an instrument,and to distinguish this kind of nerve damage from the nerve damage that comes or may come to the clarinet player and the oboist.2 Being a bassoonist is in this sense just like being a woman who has given birth. But of course, the very fact thatthere are bassoons and music for the bassoon, the very fact that a particulararea of the lip is marked as salient for both control and damage, is a social, not a biological, matter.It is society that has marked certain parts of the body as salient for aesthetic purposes, and has designed a set of practices surroundingthese parts of the body. Society has also thus created a set of desires, as when young children, hearing the sound of the in grandfather "Peterand the Wolf,"are, some of them, filled with desire to make thatsound,ratherthanthe sound of the patheticduck or the hopelessly flighty bird. In that sense, being a bassoonist is a social construct,in very much the way that Foucault and others
2 I am gratefulto CharlesNussbaum(bassoonistand philosopher)for discussion of this point.

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have insisted that sexual practices are social constructs. Pleasure and sexual contact are ubiquitous,but it is society that has shaped them in a particularway, has marked certain practices as salient and central, and has created certain desires correspondingto those practices.3 So I conclude that there is a remaining area of unclarityabout the way in which Stein articulatesthe essentialism/constructivism debate. Some naturalkinds are also, looked at anotherway, socially constructedkinds. It dependson what questionwe are asking. If we are asking what broughtthe category of bassonist into being and what explains the salience of this category and the practices and desires associatedwith it, the answeris surely:social and historical factors. If we ask what discipline will tell us abouthow these practices affect the bodies of those who practice them, the answer is, science and medicine. But then it looks like being a naturalhuman kind overlaps considerablywith being a constructedhuman kind, and essentialismwith constructivism. Moreover, the perspective of natural human kinds looks like it doesn't mean very much, does not give us a very interesting way of thinking about sex. If essentialism is true just in case there are medical laws pertainingto gay sex practices that are the same in all cultures- which seems to be the right way to run the parallel with the birth mother- then essentialism is fully compatible with constructivism,and the informationit suppliesis probably going to be much less revealing than the informationsupplied by constructivism.(Much the same, of course, is true of motherhood.) This issue interestsme in a general way, but it is also pertinent to Stein's ethical/legal argument.For we have now made it crystal clear that for Stein, the fact that somethingis a naturalhumankind does not imply thatthereare any scientificlaws explaininghow individuals come to be membersof that kind. In other words, the issue of naturalkinds is quite irrelevantto the issue people usually want to know about in the ethical/legal sphere, namely, whether sexual orientationis a choice or is in some deep way unchosen.According
3 I do not mean here to treat pleasureas a sensationthat varies only in origin, I and duration. believe thattherearequalitativedifferencesamongpleasintensity, ures; to that extent, we could convincingly argue that social norms produce not only distinctivedesires but also distinctivepleasures.

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to Stein, being a smoker or a bassoonist or a runneror a mother may be a matterof social pressure, a lifestyle choice, or simply a chance event - and yet we are still entitledto say thatthe kinds into which these people have put themselves are naturalhuman kinds. Stein himself does eventually say as much, albeit in a weaker way (p. 269: the issue of voluntarismversus determinismis independent of the distinction between natural human kinds and constructed kinds). But then it is not at all clear why we needed the lengthy discussion of naturalhumankinds at all. What is really relevantto most people, legally and morally, is the issue of how one becomes a memberof the kind:whetherit is deep in the personality,or merelya lifestyle choice. Most people thinkthatbeing a smokeris not something deep in the personality,and that is why they find it all right to enact laws discriminatingagainst smokers. Most people think that the desire to have children of one's own does lie ratherdeep in the personalitiesof women; this is a part of the reason why the refusal to give medical benefits to pregnantwomen was thoughtto be a form of sex discrimination pregnancyis not simply another choice.4 But these are both naturalhumankinds, according lifestyle to Stein. The naturalkind question, then, answers nothing: what many Americansreally want to know is, is sexual orientationmore like smoking or more like becoming pregnant?Is it just a "lifestyle choice", or does it answer to deep desires in the personality that can't be changed,or not easily? The concept of naturalhumankinds, as Stein uses it, has nothingto say on that question.I shall returnto this issue in Section III.

4 The actual reasoning of the Court, in Newport News, 462 U.S. 669, 683 (1983) did not allude to the depthof the desire to reproduce,but only to the fact that only women could become pregnant:thus the refusal to cover pregnancy is a form of sex discriminationunder Title VII. (They comparedthe insurance plans to a plan that would cover brokenbones for women only and not for men.) But the importanceof pregnancy was, I think, a significant part of the public pressurefor recognitionthat it is a serious disadvantageto women to deny such benefits.

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II

What shouldourethical and legal approach to questionsof sexual be orientation?I believe, and have argued repeatedly,5that it ought to be that of John StuartMill: conduct that does not harm other people, in the very specific sense of violating their "constituted rights,"is never a fit object of legal interference,or even of the coercive sort of moral sanction. It is, instead,an appropriate object of reasonedpersuasion.Mill's "harm principle"has been the subject of muchdispute,andif one thinksthatthe categoryof harmis totally unspecified in his text it would not be a terriblyhelpful category. However, I believe that it is adequatelyspecified: Mill defines the relevant class of harms as those that violate "constitutedrights," that special class of human interests he identifies in chapterV of Utilitarianism,which give rise to strict duties to assignable individuals. These rightslie in the general areaof securityand safety of the person and property.Although they certainlycould use further specification, Mill's specification is sufficient to show us that the "harm" distress at thinkingaboutthe sex acts of someone else is of not a harmin the sense relevantto his principle.6 It is very clear thatMill's principleprotectsall consensualsexual conduct that takes place hidden from public view. Like gambling and prostitution,homosexual acts are clearly covered by the prin5 For example, in Sex and Social Justice (New York:OxfordUniversityPress, 1999), Introductionand elsewere; and in 'Is PrivacyBad for Women?What the Indian ConstitutionalTraditioncan Teach us About Sex Equality', The Boston Review25 (April/May2000): 42-47, a longerversionof which will appearas 'Sex Equality,Liberty,and Privacy:a Comparative Approachto the FeministCritique', in R. Sudarshan,E. Sridharanand Z. Hasan (eds.), Fifty Yearsof the Republic, volume celebratingthe fiftiethanniversary the IndianConstitution(New Delhi: of OxfordUniversityPress). 6 It is very clear that Mill does not think governmentregulationof financial transactionsruns afoul of his principle. Joseph Raz suggests that we can reach this conclusionby arguingthateconomic inequalityharmsthe poor (TheMorality of Freedom[Oxford:ClarendonPress, 1986], pp. 412-420). But surely this is a diffuse kind of harm that does not fall under Mill's principle as he states it. It seems better to point out that for Mill, harm relevantto his principle has to be harm with respect to "constitutedrights,"and he very clearly holds that the rich do not have a right to that portionof their money that is requiredto promotethe public welfare.

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ciple. Although Mill himself did not write on this topic, Bentham is did, and the conclusion of his discussion of "pederasty" Millean: the bare fact that most people don't like something is neither here nor there when it comes to interfering legally with consensual conduct.Mill, armedwith his distinctionbetween mereinterestsand rights, however we furtherdemarcatethat distinction,and however we understandits relation to his Utilitarianism,is far more able than is Benthamto explain why the pain someone feels at thinking about someone else's immoralityhas no relevanceto the legal regulation of conduct. (Indeed, I think the fact that Mill can make this distinctionmakes his version of Utilitarianismplausible and a serious candidatefor being right, while Bentham'sis too simple to be plausible.) Mill's distinction leaves some disputed territory open: for example, Mill allows that if there is a significant risk of immediate public disorder,otherwiseprotectedconductmay be regulated (the "corn-dealer"example); again, if there is an imminent risk that a person will harm himself in a way that he would not have intended due to lack of information,and there is no time to get him the information before he is at risk, then, once again, his conduct may be limited (the unsafe bridge example). Neither of these is pertinentto our debatesaboutsexual conduct,as far as I can see. Several furtherrefinements in Mill's view are more pertinent to the issue of sex relations.7First, Mill allows that there may be laws protecting public decency: acts that grossly offend nonconsentingpartiesin a public place, even thoughthey do not violate any otherright,may be prohibited.Thus sex and nudityin places where nonconsentingparties are present may be prohibited.It is not clear
One problematicrefinementthatis probablynot pertinentto sex: Mill allows that society may tax a practicethatit believes harmful,even thoughhe grantsthat this will often make the practiceunavailableto some people. Thustobacco may be taxed, even though at the marginsome will not be able to affordsmoking. Mill's excuse for this deviation from his principle is that society can't tax across the board,and thus has to select some things over others;so why not select those that we believe people can do without,and especially those that are actually harmful? But society can tax across the board,througha general consumptiontax, so Mill has not given a sufficient argumentfor countenancingtax burdens dictated by paternalisticconsiderations.
7

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that Mill ought to have made this concession, nor is it terriblyclear how being in the presence of nudity or sex acts actually violates "constitutedrights."(PresumablyMill thinks that to be forced to watch such acts is a type of assaulton a nonconsentingparty,but he does not spell this out.) Problematicthough this category of harms is, however, it is also importantto see that Mill clearly demarcates these cases of offense to non-consentingparties from cases where someone experiences distresssimply by thinkingaboutother people's consensual acts. The latter sort of case is clearly not a candidatefor legal regulationin his view. Moreover,Mill's grudging willingness to tolerate laws that regulate public decency does not amountto the concession that the minute an act enters a so-called public space it may be prohibited.The relevantconsiderationis the presence, or possible presence, of nonconsentingparties. Thus it would appearthat Mill's distinction is relevant to the prohibition of sex acts in spaces where nonconsentingpartiesmight be present, but not to the prohibitionof such acts in otherpublic spaces where only consenting parties enter: sex clubs, bathhouses, and so forth. So understood,Mill's additionto the list of harmshas at least some plausibility; at any rate, there is no liberal society that does not regulate nudity and sex acts in that way, and such regulations are clearly compatiblewith the protectionof consensual acts done out of the gaze of nonconsentingparties. Second, Mill holds that those who make money from a practice widely deemed a social evil might possibly be subject to legal penalty, even though those who engage in the practice should not. Thus, gamblersandprostitutesare protected;pimps and the keepers of gamblinghouses may not be. Here we might imagine that Mill, were he convincedthat same-sex practiceswere a social evil, might countenance legal regulation of the keepers of bathhouses, gay on bookstores,etc. Like most commentators On Liberty,I thinkthis is an unfortunate deviation from the general spirit of his principle, and I shall say no more aboutit here. GovernThird,Mill allows (in Considerationson Representative ment, not On Liberty),that society may gently encouragethe view that it believes correct, so long as it does not restrictthe freedom of expression of others. Thus, an established church is all right, providedthat all religions have freedom of expression.Presumably,

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applied to the sexual area, this would mean that for Mill heterosexual marriagescould get special privileges, so long as same-sex couples had full freedomof expression(meaningwhat?Civil union? Marriage?).This part of his view seems to me quite suspect, and out of line with the general direction of his argument. I prefer the suggestion of Michael McConnell, who has suggested that the law might treat same-sex activity the way it now treats religion: no establishment of a preferred sexual style, and complete free exercise.8 In short:thoughMill divergesfrom the spiritof his view at times, in general it is a very clear view, offering good guidance to a nosy nation such as our own in the matterof the regulationof sexuality. I have given no argumentson behalf of this view here. I think that Mill's argumentsare good up to a point, butI myself, being a "political liberal"and not a "comprehensiveliberal,"would be inclined to rely on argumentsfrom respect for difference, rather than on argumentsthat appeal to the value of difference in getting us to truth.9Howeverthis may be, some considerationsin favor of Mill's morefully what our legal principlewill emerge when we understand has alternative been. The United States, alas, has never been a Millean nation. Three states - Kentucky,Pennsylvania,and New York- have cited Mill and invalidated sodomy laws on Millean grounds, under their state constitutions. The ringleader and Millean state par excellence is the state of Kentucky.10The Kentucky Constitution of 1891 was adopted with explicit discussion of Mill's principle, and with explicit intent to stem the tide of nosy morals laws, including laws criminalizingthe mere possession of alcohol. Shortlyafter the

8 Michael McConnell, "WhatWould It Mean to Have a "FirstAmendment" in for Sexual Orientation?", S. Olyan and M. Nussbaum (eds.), Sexual Orientation and Human Rights in American Religious Discourse (New York: Oxford UniversityPress, 1998), pp. 234-260. 9 See my discussion in Womenand Human Development: The Capabilities CambridgeUniversityPress, 2000), ch. 3. Approach(Cambridge: 10 Why Kentucky?It seems likely thatthereis a connectionbetween the liquor industryandthe adoptionof the Millean principle:its firstandfor a long time only use was to invalidatelaws thatcriminalizedthe privatepossession of alcohol.

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the adoption of the new constitution,11 Kentucky Supreme Court invalidatedsuch a law, with explicit referenceto Mill:
The theory of our governmentis to allow the largest liberty to the individual commensuratewith the public safety, or, as it has been otherwise expressed,that governmentis best which governs least. Under our institutionsthere is no room for that inquisitorialand protectivespirit which seeks to regulatethe conduct of men in mattersin themselvesindifferent,andto makethemconformto a standard, not of their own choosing, but the choosing of the lawgiver ... [citing Mill]: The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independenceis, of right, absolute ... The principlerequiresliberty of taste and of pursuits;of framingthe plan of our life to suit our own character; doing as we like, subject to such consequences as may follow; without impedimentfrom our fellow creatures,so long as what we do does not harm them, even though they should think our conduct foolish, perverse,or wrong.

Shortly thereafter,a citizen named Smith was arrestedfor drinking beer in the back room of his office. Once again,the courtintervened, carefully distinguishingthis case from the case of public intoxication - which, they presumablythink,would create both a risk to the public safety andpublic offense.12
The power of the state to regulateand controlthe conduct of a privateindividual is confined to those cases where his conduct injuriouslyaffects others.With his faults or weaknesses, which he keeps to himself, and which do not operateto the detrimentof others, the state a such has no concern ... [T]he police power may be called into play [only] when it is reasonablenecessary to protect the public health, or public morals, or public safety.13

In 1992, the State Supreme Court revisited these precedents and used them to invalidatethe state's sodomy laws. Wasson was charged with soliciting an undercovercop to engage in "deviate sexual intercourse." Courtarguedas follows:14 The
11 Commonwealthv. Campbell, 133 Ky. 50 [*493] 117 S. W. 383 (1909), at 387,386. 12 Commonewealth Smith, 163 v. Ky. 227, 173 S. W. 340 (1915). 13 Did the CourtreadtheirMill correctly?Mill does allow thata soldiermay be fined for being drunkon duty,and thatpeople who habituallydo bad things under the influence may face incrementalpenalties.But it appearsthat merely drinking in public should not be eitherharmfulor grossly offensive in the sense recognized by Mill's argument. 14 Commonwealth Wasson(842 S. W. 2d 487; 1992 Ky). v.

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At the time Campbellwas decided, the use of alcohol was as much an incendiary moral issue as deviate sexual behavior in private between consenting adults is today ... Notwithstandingtheir strong views that drinking was immoral, this same Court ... recognized that private possession and consumption of intoxicating liquor was a liberty interest beyond the reach of the state ... Based on the Campbellopinion, and on the Commentsof the 1891 ConventionDelegates, there is little doubt but that the views of John StuartMill, which were then held in high esteem, providedthe philosophical underpinnings the reworkingand for broadeningof protection of individual rights that occurs throughoutthe 1891 Constitution.

Similarargumentswere made in Pennsylvaniaand in New York.15 The Millean Three, however, remain isolated in our nation. We tolerateand legally uphold a wide range of anti-Milleanlaws, regulating such conduct as the private possession and use of drugs, consensualsex acts of many types, nudityandnudedancingin clubs that admit only consenting patrons,prostitution,and gambling. At one point vaguely Millean ideas did enter the Federalcourts:when the Seventh Circuit Court of Appeals struck down as unconstitutional an Indiana state law requiringdancers in bars and clubs to wear pasties and a g-string. Writing for the Court, Judge Richard Posner defended the expressive value of the element of nudity in the dance. In theoreticalwritings,Posner defends Mill's line on the does not offer regulationof sexuality.Because the U. S. Constitution this an obvious foothold for a generalMillean argument, however,16 was a firstAmendmentfreedom of expressionruling.
15 Commonwealth Bonadio, 490 Pa. 91, 415 A.2d 47 v. (Pa. 1980); People v. 415 N. E. 2d 939 (N.Y. 1980). The Pennsylvaniaand KentuckyCourts Onofre, both note that a similar view of homosexual acts is taken in the Model Penal Code, Sec. 207.5-4, 1955, and in the 1980 edition (quotedin the Kentuckycase), Section 213.2. The Pennsylvaniacase employs the very same quotes from Mill as did the Kentuckycourtin Campbell. 16 A foothold might be found in substantivedue process, and Indian constitutionallaw has taken this course with a wide range of previouslyunenumerated We liberties:see my "Sex Equality,Liberty,andPrivacy." have takenthis line only to the extent of recognizing a right to privacy,and this rubric,I would argue,is a slipperyone underwhich to protectconsensualsexual conduct,because "privacy" has typically been understoodto mean "theprivacy of the home,"and thus does not offer much protectionto people who have sex in bathhouses,clubs, etc. See my "Is Privacy",and "Sex Equality."On same-sex conduct, Bowers has closed that door in any case, for the time being.

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It did not survive. The Supreme Court decided the case in Indiana'sfavor,with a pluralityopinion by Chief Justice Rehnquist that defends the bare idea of "moral disapproval"as a perfectly basis for law.17And in a concurringopinion of typical appropriate Justice Scalia states - correctly, so far as historical pungency, description is concerned - that the Millean principle (which he imputes to Thoreau, not Mill) has never been regarded by our nation as an appropriate basis for thinking about the limits of the law:
The dissent confidently asserts that the purpose of restrictingnudity in public places in general is to protect nonconsentingparties from offense; and argues that since only consenting, admission-payingpatrons see respondents dance, that purpose cannot apply, and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that 'offense to others' ought to be the only reason for restricting nudity in public places generally, but there is no basis for thinking that our society has ever sharedthatThoreauvian'you-may-do-what-you-like-so-long-as-it-does-notinjure-someone-else'beau ideal - much less for thinkingthat it was writteninto the Constitution.The purposeof Indiana'snuditylaw would be violated, I think, if 60,000 fully consenting adultscrowded into the Hoosierdometo display their genitals to one another,even if there were not an offended innocent in the crowd. Our society prohibits,and all human societies have prohibited,certain activities not because they harm others but because they are considered in the traditional phrase 'contrabonos mores,'i.e. immoral.[The]purposeof the Indianastatute[is] to enforce the traditionalmoral belief thatpeople should not expose their private parts indiscriminately,regardlessof whetherthose who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adultsare present,the purposemust be repressionof communication. Theatre,Inc., 501 U.S. 560 (1991). Interestingly,Rehnquist appealsto the same legal traditionof the protectionof "publicdecency and public safety" that the KentuckyCourt also upholds in saying that public drunkenness these termsratherdifferently, may still be bannedin a Millean state. He interprets however, from Mill and Kentucky,and takes them to license a bare appeal to moral disapprovalas sufficient groundsfor the legal regulationof conduct. The three dissenterstake a more Millean line, saying that "Thepurposeof forbidding people from appearingnude in parks,beaches, hot dog stands,and the like public places is to protectothersfrom offense. But thatcould not possibly be the purpose of preventingnude dancing in theatersand barroomssince the viewers are exclusively consentingadultswho pay money to see these dances."This being the case, they argue,we have to considerthe issue of freedomof expression,and theyjudge thatthe laws are for that reasonunconstitutional. 17 Barnes v. Glen

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Not surprisingly, Scalia returnsto this theme in his stinging dissent in Romer v. Evans,18the case that invalidateda referendumpassed by the state of Coloradothat forbadelocal authoritiesfrom passing nondiscrimination ordinanceswith referenceto sexual orientation:
The Court'sopinion containsgrim, disapprovinghints thatColoradanshave been or towardhomosexuality,as thoughthat has been guilty of "animus" "animosity" established as Unamerican.Of course it is our moral heritage that one should not hate any humanbeing or class of human beings. But I had thoughtthat one could considercertainconductreprehensible murder,for example, or polygamy, or cruelty to animals - and could exhibit even "animus"toward such conduct. at of Surely that is the only sort of "animus" issue here: moraldisapproval homosexual conduct, the same sort of moral disapprovalthat producedthe centuries' old criminallaws that we held constitutionalin Bowers.

Scalia muddies the waters: for of course murder and cruelty to animals fall squarely under Mill's principle; and polygamy is an issue to which Mill devotes nuanceddiscussion, focusing on issues of putativeharmin the areaof female subordination absence of and maritalchoice. Moreover,there is an obvious disanalogy between state approvalof polygamy and the decriminalizationof same-sex conduct: for to legalize polygamy is to give plural marriagesthe privileges and benefits attached to the institution of marriage.It is not simply to legalize sex with plural partners,which is legal already, except in states that retain laws against fornication and adultery. The right analogy would be to the legal regulation of fornication and adultery,which most Americans probably do not support. however,his general Despite the difficultiesin Scalia's argument, line is historicallycorrect:the U. S. has always taken strongmoral disapprovalas sufficientfor the legal regulationof conduct,whether or not harmof Mill's sort can be demonstrated. Because this disapis wide-rangingand capricious,we have seen fit to make law proval conduct, and a considagainst all sorts of diverse "self-regarding" eration of the list should make us sympatheticto Mill's principle, even if we were not sympatheticbefore. For example, there seems to be no plausiblereason,not even a bad one, to ban nudedancingin clubs, or the type of exhibitionismin the Hoosierdomeenvisaged in Scalia's imaginaryexample. Furthermore, notice that such bans we
18 517 U.S. 60 (1996).

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often involve class-based discrimination: as JudgePosnernoted, for thatnudityon the stage of the ChicagoLyricOpera nobody suggests should be banned.19However: we do not live in a Millean legal world, and are unlikely to do so any time soon. Same-sex conduct, fornication, adultery,gambling, smoking, the use of drugs, nude dancing in clubs - all these things the state may and does regulate, without requiringa showing of harm to nonconsentingthird
parties.20

III

This being the case, how should someone who seeks the decriminalization of same-sex conductproceed?(I will focus on that question, because it does seem logically priorto the questionof giving equal recognition to same-sex marriage. That question is much more complex, becauseit requiresus to raiseotherlargequestions,such as whetherthe institutionof marriageis worthpreserving.21) One way one might go is to try to convince AmericansthatMill's principleis the best basis for legal thinkingin this difficultarea of humanlife. But that would be an uphill battle, and would be a very imprudent way to proceed, given that the defenderof same-sex conduct could only get to his or her conclusion by defending the legalization of recreational drug use, something that would probably doom the projectfrom the start. Second, one might try to convince Americans that same-sex conduct is morallygood, expressingvaluabletypes of love and selfexpression.In other words, one might try to convince moraliststhat the right attitudeto it is not condemnationbut approval- or at least
19 Of course the law in question was an Indiana, not an Illinois, law. But

would a touringproductionof Salome, performing,for example, at IU's splendid performingartscenter,have encounteredthe wrathof the state? 20 Because I think there is such harmin the case of smoking, my own view is thatregulationof smoking is acceptable. 21 See my review of Michael Warner's'The TroubleWith Normal', The New Republic,January3, 2000, pp. 31-36 where I sympathizewith Warner's critique of the institution;see also chapter4 of my Women and HumanDevelopment,as well as "The Futureof Feminist Liberalism," PresidentialAddress delivered my to the CentralDivision of the APA, Proceedings and Addressesof the American PhilosophicalAssociation, vol. 74 (2000), pp. 47-79.

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as much approvalas such people typically accord to opposite-sex conduct. That is not a bad thing to do, and it has some chance of succeeding with some people. But it runs up against religious text and tradition,given that probablya majorityof Americans belong to religious denominationsthathold contradictory views. Third, the defender of same-sex conduct might try to uncouple this conduct from the other notorious "morals offenses," such as nudedancing,gambling,anddruguse, by saying thatsexual orientation has extremelydeep roots in the personality,and is not merely a to lifestyle choice. To deny people the opportunity engage in samesex conduct is thus to doom them to a life of sexual misery. Now of course, as Stein says, to establish that orientationsare in some serious sense non-chosen does not get us all the way to a defense of same-sex conduct: for it just tells us that the orientationitself has deep roots, and it leaves open the possibility that people who have that orientationmay be requiredto refrainfrom the associated conduct. But we need only supply one furtherpremise to get to the desired conclusion: it is that people should not be doomed by law to a life of sexual misery and frustration.Some religions do think that gays and lesbians should practice celibacy and that this is a perfectly reasonabledemandto make of them. But most Americans think of sexual fulfillmentas one of the greatest goods of life, and are inclined to think that it is unreasonableto demandthat people utterlyforgo sexual fulfillment.If they can be persuadedthat sexual orientationslie very deep in the personality,then they think that same-sex conduct is not at all like adultery or gambling or nude dancing, or even smoking (which of course is very difficultto give up). All of those forms of conduct could, they think, be omitted withoutcripplingthe personality. Now I thinkthatAmericansareactuallyrighthere.Thatis, I think that asking people not to engage in same-sex conduct is a cruel and unreasonabledemand,in a way that asking them not to gamble or to dance in the nude or to use drugs is not.22Thus, while I think all those forms of conductshouldbe legal, I thinkthereis an important
22 Even Justice Powell, concurringin Bowers, said that he thought a prison

sentencefor sodomy "wouldcreatea seriousEighthAmendmentissue,"andnoted that a single act of sodomy, underthe Georgiastatute,is "a felony comparablein terms of the possible sentence imposed to serious felonies such as aggravated battery,first-degreearson, and robbery"478 U.S. 186, 197-198 (1986) (Powell,

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differenceto be drawnamongthem. We should,I think,be Milleans. But if we are not, if we are determinedto maintainthatstrongmoral is disapproval in some instancessufficientfor the legal regulationof conduct, then I think that we still have to ask ourselves what we do to people when we make laws like that.And denyingpeople a form of sexual fulfillmentthat cannot be substitutedfor because of deep factors about the organizationof their personalitiesis indeed cruel and unreasonable. Now of course considerationsof harmmustenterin here too. For if the sexual conduct to which some people are inexorably drawn is harmfulto nonconsentingparties - as sex with childrenand sex with animals surely is - then denying people their only possible fulfillment is just right, harsh though it is. But of course consensual same-sex conductbetween partiesover some reasonableage of consent is not in this category at all. Thus it seems both harsh and exceedingly mean-spirited surely partof what the SupremeCourt had in mind when it spoke of "animus"(although,of course, they not were dealingwith non-discrimination, sodomy) to treatmajority disapprovalas a sufficientreason to legislate againstit. Now Stein points out, quite correctly, that one may hold that sexual orientationslie very deep in the personalitywithout taking line on the essentialism/constructionism any particular controversy, and withoutholding any view aboutthe genetic or otherwisebiological orientationsof sexual orientation.Thus, one might hold, as he does, that sexual orientationshave multiple and complex origins while still holding that these orientationsare fixed at a very early age, after which one cannot be "changed,"and cannot learn to experience sexual fulfillment differently. But it is also clear that establishing that genetic or other biological factors are primary causes of sexual orientationsis sufficient,if not necessary,for establishing what the person who follows my line of argumentwould wish to establish.Thus, the scientific researchStein mentions actually has made some very conservativeand religious people rethink their opposition to same-sex activity. If it is not a mere "lifestyle choice" but something much deeper, then one can see that it to may be quite uncharitable demandlifelong abstinence.Thus, for
J., concurring).His attractionto the Eighth Amendmentseems to have roots in a quasi-Milleanimpulse.

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example, Dallin H. Oaks, one of the more complex and reflective membersof the Quorumof Twelve Apostles of the MormonChurch, has writtena very interestingessay on same-sex conduct23 thatcites the scientific research on sexual orientation and describes samesex orientationas "an unchosen vulnerability." Although Oaks still counsels abstinencefrom sex outsidemarriagefor all Mormons,and hence celibacy for gay Mormons,24 expresses far more sympathy he with gays and lesbians thanany Churchleaderhad previouslydone, encouragesthem to feel thatthereis a place for them in the Church, and strongly condemns gay-bashing. The Mormon religion values sexual expressionhighly, as a great humangood, to the extent that even God is imagined to be a member of a sexually interactive marriedcouple. Thus it is not surprisingthat Oaks would get to the brinkof countenancingsame-sex conduct, having once decided that people have no choice about where their satisfaction lies.25 Many people are led, by such arguments,to take the final step of countenancingsame-sex conduct and same-sex marriage. Thus I think that the interest of many gays and lesbians in the currentscientific researchprogramis fully understandable. believe I that Stein's criticisms of it are sound, and that we really should not buy into the kind of gene fetishism that so dominatesour society.26 We should accept a genetic theoryonly if it is a persuasiveone, and no such theory so far is that. I actually believe that something like Stein's multipleorigins view is probablycorrect,and that accepting such a view is fully compatible with maintainingthat orientations are unchangeableand lie deep in the personality.But we should also recognize how difficultit is to establishsuch a complex theoryin the
Ensign, an official publicationof the Church. I am gratefulfor this informationto Scott Abbott. 24 In an interview with CBS News on December 30, 1986, Oaks states: "The church's position based on scripturalcommandmentsis that men and women should refrain from any sexual relations outside the bonds of marriage.That is the same doctrinefor sexual relationsbetween the sexes and among the sexes." 25 The Apostles operateby a strongnorm of consensus; thus it would not have been possible for Oaks, not at the top of the ranking,to promulgatea radicalnew doctrineon sexual conduct. 26 See my furtherremarkson this in my review of Allen Buchanan,Dan W. Brock, Norman Daniels, and Daniel Wikler, 'From Chance to Choice: Genetics and Justice', TheNew Republic,December4, 2000, pp. 38-48. 23 In the October 1995 issues of

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popularmind, andhow additionallydifficultit is, having established such a theory,to show people thatorientationsare, nonetheless,not mere lifestyle choices, like being a smoker or gambler,or even, to revertto my earlierexample, being a bassoonist. To return,now, to my earlierdiscussion of naturalhumankinds: I thinkthe problemis that we need to show non-Milleanlegislators that sexual orientations,whether or not they are in Stein's sense naturalkinds, are not the sort of kind thatbeing a smokerand being a bassoonist are: kinds, that is, that people become membersof by choice, in a way that is not very deep in the organizationof their personalities. That is the issue, I think, and the question whether orientationsare naturalor social is not such a relevantissue. Then, if in addition we get people to agree that sexual fulfillment is a very importantpart of human life, we may be in a position to get them to Mill's conclusion on this one topic at least. We may get them to hold, that is, that where no harm to nonconsentingothers is in the offing, it is wrong to legislate against same-sex conduct. A quick route to the first premise in that argumentis offered by genetic theories.Too quick, no doubt.But then exactly how should we establishthatpremise? I would like to hear Stein's thoughts, then, about how people interestedin the legalizationof same-sex conduct (and all the other issues that are linked to that issue) should answer Scalia and the moralists,if we do not take the admittedlyall too simple and (very likely) erroneous pathway that the new genetic science of sexuality appears to offer us. How, if at all, does a multiple origins theoristconvince people that sexual orientationsare in a deep sense unchosenand unchangeable?
ACKNOWLEDGEMENT

For comments on an earlierdraftof these remarksI am gratefulto JamesMadigan,RichardPosner,and Cass Sunstein.

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