by Peter Sprigg
August 5, 2015
Many conservative commentators have dissected Justice Anthony Kennedy’s majority opinion in the U.S. Supreme Court case of Obergefell v. Hodges. In that case, a slim 5-4 majority declared that the 14th Amendment of the Constitution requires every state to redefine marriage to include same-sex couples. One wonders what the authors of that 150 year-old amendment would have thought of this notion.
Few, however, have noted two passing comments that actually describe the key factual assumption on which the entire decision rests. Justice Kennedy declared—twice—that a homosexual orientation is “immutable.”
On p. 4 of the opinion, Kennedy writes,
… [I]t is the enduring importance of marriage that underlies the petitioners’ contentions… . And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
Then on p. 8, he says,
Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.
Why does this matter?
The “Right to Marry”
First, the core of Justice Kennedy’s argument is that homosexuals have been denied the “fundamental right to marry,” which the Court has described as a “liberty” interest protected by the due process clause of the 14th Amendment in earlier cases. The amendment says a state may not “deprive any person of life, liberty, or property, without due process of law”).
However, another key precedent concerning the analysis of “fundamental rights” under this clause, a 1997 case involving assisted suicide called Washington v. Glucksberg, has said that before a new “fundamental right” can simply be declared by the Court, there must be a “careful description” of the asserted right, and it must be shown that the “right” so described is “deeply rooted in this Nation’s history and tradition.”
This “Glucksberg test” was a serious problem for those claiming a “fundamental right” to same-sex “marriage.” It is obvious that a “careful description” of the right being asserted in the Obergefell case was “the right to marry a person of the same sex.” It is even more obvious that “the right to marry a person of the same sex” is not “deeply rooted in this Nation’s history and tradition.”
Justice Kennedy got around this seemingly insurmountable obstacle in two ways. First, he simply denied that the binding precedent of the Glucksberg test was actually a binding precedent. Justice Kennedy declared (wrongly), “History and tradition guide and discipline this inquiry but do not set its outer boundaries.” It is notable that in the portion in which Kennedy made this statement, he cites a case from 1961 (Poe v. Ullman), rather than the later precedent of Glucksberg. Chief Justice Roberts pointed this out in his dissent, saying that “the majority’s position requires it to effectively overrule Glucksberg.”
Second, Justice Kennedy argues that the issue is not whether there is a “right to same-sex marriage,” but rather whether gays and lesbians, as persons, may exercise the “fundamental right to marry” which belongs to everyone.
The answer on the face of it is that, even when marriage is defined as the union of one man and one woman, people who identify as gays and lesbians are entirely free to marry. Marriage licenses have never inquired as to the sexual orientation of the spouses. A self-identified gay man may marry—as long as he marries a woman. A self-identified lesbian may marry—as long as she marries a man.
Sexual Attraction as the Basis for Marriage
This sounds absurd to many people—why would you marry someone to whom you are not sexually attracted?
To treat sexual attraction as the fundamental basis for the definition of civil marriage is to assume that the reason marriage is treated as public institution is to promote relationships that bring sexual pleasure to the spouses.
While this may be an important personal interest for the majority of people who marry, it is hard to argue that there is a public interest merely in promoting sexual gratification.
The federal government should not be deciding if people can marry based on their sexual interests. After all, don’t we want to keep the government out of our bedrooms?
It is particularly odd that the Court would (implicitly) say that sexual attraction is foundational to the definition of marriage, but the potential for procreation (in which there is a significant public interest) is not. The public purpose of marriage historically has been grounded not in the encouragement or affirmation of sexual relationships, but in the need to stabilize them because of the recognition that wanton sexual expression leads to social decay: massive out-of-wedlock births and parentless children, children growingup reckless and uneducated, etc. Seeking to avoid these and other problems, marriage for millennia has been a public institution, one animated by its implications for society as a whole.
Yet while same-sex marriage claims to imitate natural marriage in stabilizing relationships, the public purpose of such stabilization – prevention of unrestricted, chaotic, and socially disruptive procreation – becomes irrelevant given the inability of same-sex partners mutually to create children.
I have written about the public purposes of marriage in relation to sex and procreation elsewhere.
In any case, the first premise Justice Kennedy requires in order to claim that self-identified gays and lesbians have been denied the “fundamental right to marry” is the premise that marriage is about sexual attraction.
Is Homosexuality Immutable?
A second premise is also necessary, however. To conclude that a one-man, one-woman marriage definition denies to self-identified gays and lesbians the “fundamental right to marry,” one must not only assume that sexual attraction is foundational to marriage, but must also assume that such attractions can never change—that they are “immutable.”
Justice Kennedy included the “immutability” claim because it is necessary to give his “fundamental rights” argument any coherence at all. Only if (a) sexual attraction is fundamental to marriage and (b) sexual orientation is “immutable” can it be argued that a law defining marriage as the union of one man and one woman is the same as a law saying that there is an entire class of persons (self-identified gays and lesbians) who are denied the fundamental right to marry because it is impossible for them ever to marry.
In support of this claim (that a homosexual orientation is “immutable”), Justice Kennedy cites an amicus curiae (“friend of the court”) brief filed in the case by the American Psychological Association (APA—not to be confused with the other APA, the American Psychiatric Association).
This brief can be found online on the Supreme Court’s website here. Yet surprisingly, a word search shows that the word “immutable” appears nowhere in the brief.
The closest to which it comes is a statement, in a topic heading, that sexual orientation “Is Highly Resistant to Change.” This is not the same as “immutable.” The word “immutable” suggests an absolute, 100 percent, without-exception type of statement. Race is an immutable characteristic (and the mockery of Rachel Dolezal, a white woman who claims to be black, simply demonstrates the widespread understanding of that fact). One’s biological sex is “immutable” (the “gender transition” of transgendered Americans notwithstanding). “Highly resistant to change” is a strong statement, but in an entirely different category from truly immutable characteristics such as race and sex. It is definitely not an absolute one.
However, when one reads the entire text of the section of the APA brief that Kennedy cited, the actual evidence offered hardly even supports the “highly resistant to change” characterization. For example, the section begins this way:
Sexual orientation refers to an enduring disposition to experience sexual, affectional, or romantic attractions to men, women, or both. It also encompasses an individual’s sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them. Although sexual orientation ranges along a continuum from exclusively heterosexual to exclusively homosexual, it is usually discussed in terms of three categories: heterosexual (having sexual and romantic attraction primarily or exclusively to members of the other sex), homosexual (having sexual and romantic attraction primarily or exclusively to members of one’s own sex), and bisexual (having a significant degree of sexual and romantic attraction to both sexes).
This description bears a striking resemblance to the key point I made in my 2011 pamphlet, Debating Homosexuality—namely that “sexual orientation” is not one thing, but is an umbrella term for several different things. They include a person’s sexual attractions, sexual behavior, and sexual self-identification. The APA cites all three of these (“attractions,” “behaviors,” and “identity”), while even adding a fourth category (“membership in a community”).
This brings me to a “gotcha” question often asked by people in the media: “Do you think people are born gay, or do they choose to be gay?” The best answer is, “Neither,” because the question presents a false dichotomy.
No one knowledgeable about “sexual orientation” issues would claim that most people with same-sex sexual attractions “choose” to experience those attractions. However, the meaning of “sexual orientation” is not limited to sexual attractions, as even the APA acknowledges. It also “encompasses” behaviors, identity, and “membership in a community”—all of which are primarily a matter of personal choice, and therefore by definition not “immutable.”
In addition to defining “sexual orientation” in terms of multiple factors, all but one of which involve significant freedom of choice, the APA brief uses other language one usually would not expect in a description of an “immutable” characteristic. It says that sexual orientation “ranges along a continuum from exclusively heterosexual to exclusively homosexual,” and that each of the two major poles of sexual orientation, heterosexual and homosexual, can be defined in terms of “attraction primarily or exclusively” (emphasis added) to either opposite or the same sex. The use of the word “primarily,” and not just “exclusively,” is a concession that some people may identify as “homosexual” even though they have some opposite-sex attractions. Again, this is hardly as absolute as the word “immutable” would suggest.
Although I would never argue that sexual attractions are primarily “chosen,” the APA actually concedes that at least some homosexuals acknowledge that “choice” played a role in their sexual orientation. Here is what the APA wrote about that topic in the amicus brief cited by Justice Kennedy:
Most gay men and lesbians do not experience their sexual orientation as a voluntary choice. In a [national survey], only 5% of gay men and 16% of lesbians reported feeling they had “a fair amount” or “a great deal” of choice about their sexual orientation. Fully 88% of gay men and 68% of lesbians reported that they had “no choice at all.”
But if sexual orientation is inborn and “immutable,” as Justice Kennedy asserts, wouldn’t you expect 100% to say that they had “no choice at all?” The fact that, among self-identified lesbians, nearly one in three said they had at least some choice, and nearly one in six said they had “a fair amount” or “a great deal” of choice, would seem to seriously undermine the notion that homosexuals are always “born gay and can’t change.”
The APA’s brief also cites another publication the APA issued in 2009 which addressed the issue of “sexual orientation change efforts.” Here is how the brief characterizes the conclusions of the 2009 publication:
Although some groups and individuals have offered clinical interventions that purport to change sexual orientation from homosexual to heterosexual— sometimes called “conversion” therapies—these interventions have not been shown to be effective or safe. A review of the scientific literature by an APA task force concluded that sexual orientation change efforts are unlikely to succeed and can be harmful.
One thing to know about the 2009 publication is that—like the 2015 amicus brief—nowhere in either texts is the word “immutable” used to describe sexual orientation. Note also the less than absolute language of the conclusion—saying that such efforts “are unlikely to succeed” is not at all the same as saying they “cannot” succeed; whereas, saying they “can be harmful” is not at all the same as saying they are always harmful. Here is a key quote from the 2009 Task Force Report:
Although the recent studies do not provide valid causal evidence of the efficacy of SOCE or of its harm, some recent studies document that there are people who perceive that they have been harmed through SOCE. [emphasis added]
Even the APA is conceding here that claims of “harm” from SOCE are supported by no more “valid causal evidence” than claims of its efficacy. The statement that some people “perceive” they have been harmed really amounts to a back-handed concession that the evidence of “harm” is primarily anecdotal, not scientific.
More and better research is clearly needed. However, there is actually an abundance of evidence, both scientific and anecdotal, that sexual orientation can be changed; the addition of the words “valid causal” represent an effort to discount that fact by raising the bar as to what is accepted as evidence.
In fact, Nicholas A. Cummings, a former president of the American Psychological Association, wrote in USA Today in 2013, “Of the patients I oversaw who sought to change their orientation, hundreds were successful,” adding, “…contending that all same-sex attraction is immutable is a distortion of reality.”
Ironically, when the Supreme Court handed down its ruling on June 26th, I was at the national conference of the Restored Hope Network—a network of Christian ministries that help individuals to overcome unwanted same-sex attractions—along with dozens of ex-gays whose existence Justice Kennedy seemed to deny. Many people who once had a homosexual sexual orientation—as measured by attractions, behaviors, and identity—have experienced transformation and are already legally married to someone of the opposite sex. Some of these, like Garry and Melissa Ingraham, are now active in helping others change. Others, like former lesbian Chirlane McCray (who is now married to Bill de Blasio, mayor of New York City), simply moved beyond “the assumptions I had about the form and package my love would come in.”
Change of sexual orientation can happen in either direction. The Family Research Council’s own amicus brief to the Supreme Court was unique in pointing out the “remarkable (but heretofore unnoticed) fact that dozens of the plaintiffs in the same-sex marriage cases that have been brought over the last twenty-four years previously had been married to a person of the opposite sex.” This is proof on its face that either: a) people with a homosexual orientation are capable of marriage to the opposite sex (if we assume that these plaintiffs were homosexual all along); or b) people’s sexual orientation can change during the life course; or both. However, if either assumption (whether a or b) is true, it demolishes the premise of Justice Kennedy’s opinion.
None of this is to suggest that changing one’s sexual orientation is easy. Most people will never try, and of those who do try, some will fail. But some also succeed. This, and the fact that some people move from homosexual relationships to heterosexual ones—or vice versa—serve as proof that sexual orientation is not “immutable.”
Justice Kennedy’s claim that a homosexual orientation is “immutable” was his bridge from identifying the desire of some people to marry someone of the same sex to identifying a “fundamental right” to do so. The claim, however, is unsubstantiated—making the bridge a shaky one indeed.