Definitions of sexual orientation
o Different ways to define Sexual Orientation
§ Desire/attraction
§ Behavior
§ Identity
§ Gender Behavior
§ Inborn, biological, brain-based/shaped by environment
· Current approach to “counting” tends to emphasize self-identification
· About 3.5% of population; women somewhat more likely to identify as bi
o Sexual Orientation can be fluid and not necessarily Binary
§ Prevalence of bisexuality among the LGB population
§ Same sex behavior tends to be more prevalent during teen years
§ Lots of people have SS crushes, SS attraction to varying degrees
§ SS erotic dreams
§ Some people have greater OS and SS attraction over course of lives
§ Opportunistic sex
o Could talk about sexual orientation in entirely different ways
§ Asexual/medium/very
§ Vanilla/kinky/fetish
§ Willingness to experiment
§ Monogamous/non-monogamous
§ 2 person or more
§ age
§ importance of race to attraction
§ sex=love or sex=physical
§ sex ok only in marriage or sex outside of marriage is ok
· Since there are all these ways to define sexual orientation why then do we only focus on gender when defining sexual orientation?
§ Marriage organizes into different categories
o Who’s a parent
o Inheritance
o Legal recognition – public benefits and rights and responses
o Family connections – arranged marriages
o Binary – what sex you were told you what you could do.
Hypos from class
Lesbian Bar – how would they determine who to let in if they could only let in lesbians
§ Would ask – “do you self identify as a lesbian?”
§ “lesbian only bar”
o might question people based on certain characteristics such as if a girl looks pretty and feminine
§ Why might you have this rule of lesbians only
o What is the purpose of this rule?
§ Safety?
§ Looking for sexual partners?
§ Political organization?
o What is a lesbian?
§ 70% of women who identify as LGB identify as bisexual
· So is the bar trying to weed out bisexuals?
o Some lesbians see bisexuals as “sleeping with the enemy”
o Maybe see bisexuals as not looking for women in the long run
Prisoner hypo
§ Trying to ask the prisoners
o Self-identification
§ Lying – put at risk for violence
§ Anti-gay person might infiltrate and be violent towards gays
§ Bad place to be outed
o Behavior
o Voluntariness
o Identification
o Gender Presentation
§ What is the Motive?
o Reduce HIV
o Reduce Sex
o Reduce violence
§ To try to get results for these goals you would have to look at behavior more so than self-identification
Is LGB an “Essential” category or socially constructed?
· The line has always been that sex is biological and gender is socially constructed
· Why does it matter?
o Social construction might feel uncomfortable to the gay rights movement because we are saying it is something that can be changed. That they chose.
o Civil rights model for race and gender civil rights emphasizes social construction; categories are imposed on humans, and sexual orientation is just one of those categories
o Downsides of categorizing sexual orientation as socially constructed – makes it seems as though LGB people have a choice, they can change. Judith Butler says the problem is that being LGB is no different, so they are asking to be treated as normal. Butler says the better way of looking at it is the LGB people are different and that is ok.
o Upsides of categorizing sexual orientation as socially constructed – since this construction is artificial, it shouldn’t make a difference. By referencing its artificiality it can make it seem unfair.
o How does essentialism address?
§ Practical/descriptive issues?
· Gay people have always existed over the course of human history and they exist in every society. So it is hard to say that it is socially constructed
§ Political/strategic concerns?
o If it is an essential category, what is it?
§ It is inborn and unchangeable; it has existed over time since the dawn of human history.
§ Practical Standpoint – it has been an attractive argument LGB have wanted to make since if it is inborn then it is not his or her fault and you can’t deter someone from being LGB.
§ This is an essential part of what human behavior has always been
· Race is a category that matters and is socially constructed as well as an essential category. It matters to the person and it matters how the person will be treated. Sexual orientation can be viewed the same way.
Sex/Gender and Essential/Social Construction
· Standard civil rights line is sex is biological and gender is socially constructed
· Transgender persons challenge this notion that gender is socially constructed and sex is biological – it makes it seem as though gender is more essential than socially constructed.
· Intersex, a person has to be either a female or a male, but intersex people don’t look like either. Since people don’t like ambiguity, they will make intersex people choose either female or male. In this sense sex can be thought of as socially constructed as well.
· Poverty disproportionately strikes transgendered persons.
o Transgendered persons are twice as likely to be unemployed
o 90% reported workplace harassment
o 20% reported homelessness at some point in their lives b/c of their transgendered status; harassment in homeless shelters
History of Sodomy Laws
· Common law – general ban on non-procreative acts (and sometimes on positions!)
· Were prohibitions based on the sex of the partners?
o Indeed, what same sex acts are generally omitted?
§ Oral sex for girls
o Why does the law start targeting same sex behavior?
§ There is urbanization and sex starts moving out into the open. Trying to stop the face of sexual deviance.
§ Same sex predilections have to be repressed because they are inborn
§ During the 1950’s anti-homosexual campaigns tend to go along with the anti-Jewish campaign.
§ Very few instances of same sex consensual sex in the home being prosecuted.
· 5th & 14th amendments prohibit fed. Gov’t and states from “depriving any person of life, liberty, or property without due process of law.”
o Have to have a law that you violated
o Have to give you notice of the charges brought against you
o Have to have a trial
· Since the founding, it has always been read as having a substantive component – protecting unenumerated rights.
· How does the court ascertain what “unenumerated rights” are protected from majority control?
o Courts worry about unaccountable judges behaving like a “super-legislature”
o Inconsistent with democracy and rule of law
§ Law rules us not individual people. Impartial law rules us.
· Tests for whether a liberty/right is constitutionally protected
o “those rights that are implicit in the concept of ordered liberty”
o “a principle of justice so rooted in the [history] and traditions and conscience of our people as to be ranked as fundamental.”
§ Raising a family
o Constitutional “common law” elaboration
Basic Constitutional Law
· No law is valid unless it is “constitutional”
· In almost all cases, the court
o Presumed law’s constitutionality
o Most laws subject to rational basis review
§ A few “fundamental” rights (DPC) and categories (EPC) trigger “heightened review”
· Unconstitutionality is presumed
· State must establish weighty interest (“compelling,” “important”)
· Tight fit: the statute is well-crafted to achieve the state interest
o Subject only to very cursory “rational basis” review
o Challenger must prove irrational/utterly arbitrary
5th Amendment and 14th Amendment Due Process Clauses:
· No person shall be deprived of “life, liberty, or property without due process of law”
o Issue: sounds merely procedural
o But the Court has interpreted “liberty…without due process of law” to require extra due process for some righ
No, and does not use heightened scrutiny
o State of Texas bared the burden of proof in this case (the state has come forward with no reason, State can show no rational relationship, etc.)
§ Usually in rational basis review the Court will not require the state to come forward with proof
· History & Tradition in Lawrence
§ Identifying a “protected liberty interest”
§ Is recent or ancient H & T most relevant? Why?
· The majority looks at the last 50 years because homosexuality was not an identifiable group before then so that we wouldn’t expect to find any laws that would target them before 50 years ago
· There is also an equal protection argument in the history and tradition because only recently has criminal sodomy only applied to homosexuals.
· Engages in “common law” constitutionalism
· Assumes constitution would protect oral and anal sex between straights in the home
· Does not say that the liberty to form intimate bonds without government prosecution is fundamental
· Seems to apply rigorous “rational basis scrutiny”
§ Puts burden of proof on Texas and doesn’t imagine possible rational bases
§ Holds morality alone is not “rational”
o Scalia’s best argument against this is the Obscenity Cases – those cases looked at how offensive the thing they are trying to restrict is to the community. It is essentially a morality judgment
§ Harms to third parties necessary to sustain limits on this intimate liberty; that this intimate conduct affects third parties in their persons or property
§ Lawrence is a “mop up,” as most states have repealed sodomy laws or held them to be unconstitutional
· Scalia’s Dissent
o Lawrence’s decision was not grounded in law – it was just enforcing the majorities preferences
o He says this is in contention with Glucksberg – looking at if fundamental rights have been historically protected.
o Says moral disapproval is a valid state interest.
§ Reasonable examples?
· Polygamy/polyandry
· Adult incest (not so crazy given sperm donation)
· Bans on marriage between 1st cousins
· Obscenity laws
· Perhaps even anti-discrimination laws (e.g. sensitivity training)
o Also the majority is playing fast and loose with the standard. Not grounded in law; it is a departure from Glucksberg and a repudiate of Bowers with no justification except that times have changed.
Lofton – ban on “active” LGB permitted to foster children
· How to distinguish from Lawrence?
o Adoption can affect a third party (concern about children)
o Not implicate “right to be left alone”
o Adoption is a privilege, the law restricts adoption in all different ways
o Lawrence just decriminalizes sodomy; adoption is not criminal
· How Lofton refuses to apply Lawrence:
o Dignity for LGB in their intimate relationships
§ Intimate relationships are just one part of a relationship; there is also the family aspect of the relationship.
§ Denying privilege denigrates LGB relationships
§ Penalty for same-sex sexual sodomy – more effective penalty than Lawrence
o The State interest looks makeweight and irrational because LGB are allowed to have foster kids.
