JUSTICE SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?The site where this quotation appeared touted it as "A Supreme Court Justice Takes Down An Anti-Gay Marriage Argument in 1 Minute." It includes a one-minute, twenty-second audio clip of the exchange, with another question that adds nothing substantial to the question already quoted. I don't understand how that headline follows from Sotomayor's questions. Nor does the site's comment connect, as far as I can tell.
MR. COOPER: Your honor, I cannot.
During a Supreme Court hearing to determine whether Proposition 8 (marriage shall only be between one man and one woman) was constitutional, a number of anti-gay marriage arguments got spectacularly demolished.I don't see any demolition, spectacular or otherwise, in Sotomayor's remarks. Maybe I'm missing something.
The confusion I'm referring to is between the issue of same-sex marriage and the concept of "sexual orientation." It's true that homosexual and bisexual persons are probably more likely than heterosexual persons to want to marry someone of their own sex, but the issue isn't sexual orientation, it's the sexes of the people involved. It's been a popular derisory line of antigay bigots that homosexuals are free to marry, they just can't marry someone of their own sex. That line shows a deliberate cluelessness on the bigots' part, but it also is true. Quite a few homosexually or bisexually-inclined people have married spouses of the other sex.
Bisexuality throws a bit of a monkey wrench in this whole mess, by the way, not least because of the hostility to bisexuals so common among many gay people. A bisexual person isn't obliged by his or her "sexual orientation" to marry, if anyone, someone of his or own sex; it's possible that they'll marry someone of the other sex. If sexual orientation were the driving force in choosing a spouse, then logically bisexuals must be allowed two spouses at the same time, one of each sex. But that's a reductio ad absurdum, not a recommendation.
I've mentioned before the relevance of Loving v. Virginia to this controversy. In overturning state laws against interracial marriage, the Supreme Court did not postulate a "racial orientation" that drove the Lovings to marry someone of a different race, though given the virulent racism of the United States in those days it would have been a reasonable claim that they must have had a different nature to want to mix races like that. But that seems not even to have been thought of. (Ironically, by tying same-sex marriage to status, the same-sex marriage movement is assuming an "intraracial" model for marriage: gay people will marry other gay people, sticking to their own kind.) "Sexual orientation" was invented largely to claim that lovers of their own sex are driven to do so by a different (but murky and incoherent) biological nature, and that concept frames the debate about homosexuality in the US today, so much so that many if not most gay people think it's absolutely necessary if we're to claim our rights as citizens. Not only bisexuality as a separate "sexual orientation" but the more recently-added category "men who have sex with men" pose serious difficulties to the status approach, which is why most advocates of gay rights and same-sex marriage prefer to ignore them. But since bisexuals have been subsumed into the GLBTQ alphabet soup, it takes some serious thought control to bring that off.
In the context of a Supreme Court case it's easier: the issues are framed as narrowly as possible, and I don't expect the Court's resident bigots, Scalia and Thomas, to try to widen the frame; that would necessitate an intelligence about human sexuality and a subtlety of thought that neither ever seems to have displayed before. But I can't help wondering, and would love to ask Ms. Justice Sotomayor: what if it were established definitively that homosexuality is not a "status" but something else? The concept of sexual orientation, after all, is tied to very dubious and probably bogus science. After all, people are entitled by the Constitution to choose their religious affiliation, to speak their minds freely and not by inner compulsion. Why must the choice of one's spouse be thought to be so different from the exercise of other rights and freedoms?
