David Link is a writer and attorney in Sacramento, California. His essays have been published in Beyond Queer and Positively Gay and periodicals including the Los Angeles Times, Los Angeles Daily Journal, Daily News, California Lawyer, and Reason. He is a writer for the Independent Gay Forum.

 

Print

E-mail

Synopsis

January 31, 2007

The debate over gay rights, and particularly the question of same-sex marriage, has changed considerably over the last quarter century. Mary Jo Anderson’s essay helps illustrate one of the most important changes that is occurring: a change in perspective. Historically, to the extent that homosexuality has been the subject of serious public discussion by heterosexuals at all (and this, itself, only began in earnest during the last half of the twentieth century), heterosexuals have had to struggle with the issue of seeing how sex—and now, marriage—might look from the perspective of someone who is not heterosexual. Since the idea that some people are (or, at the least, might be) not heterosexual is such a departure from historical understandings, this is understandably extremely difficult. More important, it helps to confound otherwise seemingly rational arguments.

Anderson’s essay shows some of this difficulty. Read it through, and ask this question: Does she believe there is such a thing as a homosexual person? If so, what does she mean by that term?

Begin with her assertion that homosexuals may marry under the same conditions that all people may marry: They must “be unmarried, be of age, marry beyond the bounds of close kinship, and marry a person of the opposite sex.”

This statement would have made perfect sense to pretty much everyone reading it fifty years ago. Even today, many heterosexuals would, and do, find it clear and coherent.

But what does a statement like this mean to someone who is homosexual? What does marrying a person of the opposite sex mean for someone who is not sexually attracted to members of the opposite sex?

This question is one that no culture prior to our own has ever really addressed. While homosexual attraction is well documented throughout history, it has traditionally been viewed as something that affects people who are fundamentally heterosexual. People were not homosexual; they had “homosexual tendencies” or “inclinations.” Anderson makes this point in its more modern formulation when she asserts that homosexuality is a “behavior pattern.”

What changed gradually over the course of the twentieth century is that some people began to view themselves not as heterosexuals with a side order of homosexual attraction—heterosexuals engaging in a homosexual behavior pattern—but as people who were homosexual as a first principle—homosexual in the same way that heterosexual people are fundamentally heterosexual. In this, Anderson’s claim that there is no “gay gene” is less an argument than a tactic. There is also no proof of any “straight gene,” yet heterosexuals are allowed to (and do) assert without need of proof that they are heterosexual. They are not asked to prove this; it is simply something they know of their own desires and take for granted about themselves. Until heterosexuals are asked to provide a scientific basis not for their sexual behavior but for their sexual desire and identity based on that desire, it will continue to be unfair to require asymmetrical requirements of homosexuals.

The difference is vital to understanding Anderson’s argument, and it is a foundation for the argument against same-sex marriage. If all people are, at their core, heterosexual, then those who engage in homosexuality are doing something unusual and, from the perspective of Anderson, wrong. It is from this perspective that Anderson can claim that homosexuality is a behavior pattern, or more normatively, an “abnormal lifestyle” or a “developmental error.”

This is where the argument about same-sex marriage has so dramatically altered in recent years. More and more people accept that at least some people are homosexual by nature. According to the Kaiser Family Foundation, as recently as 1983, only 24 percent of Americans claimed they knew someone who was homosexual. That number has steadily increased each year the question was asked and as of 2001 stood at 73 percent.[1] Even the Vatican has finally come to this position not only in its acknowledgment of “homosexual persons” but also in its efforts to remove priests and seminarians with a “homosexual orientation” from ministry. If all people are fundamentally heterosexual, then no such programs would be needed—or possible. No one would need to be excluded from ministry; they would just need more extensive training to avoid their inclination, much as priests who are alcoholic might.

More importantly, a growing majority of Americans not only accept that some people are homosexual by nature, but they know people who identify themselves that way.[2] This is a revolution without precedent. Prior to our own age, most Western cultures shared the assumption that homosexuality is something shameful. The closet was a cultural strategy that allowed a certain measure of tolerance, but that tolerance could be offered only privately.

The closet has not been completely dismantled, but the fact that today people are divided about the question makes it virtually impossible to maintain the position that homosexual people simply do not exist. The military policy of “Don’t Ask, Don’t Tell” encapsulates the dilemma for most people today. Gone are the days of the assumption that all military personnel are fundamentally heterosexual (though some might engage in the occasional homosexual act). As the Catholic Church also discovered, attempts to fully exclude such people were, realistically, impossible to enforce, since many homosexuals were able to keep themselves successfully closeted.

But Congress had a bargaining chip that the general society no longer possessed. Lesbians and gay men who wanted to serve in the military wanted to serve in the military. Many people give things up in order to get other things they want more, and Congress determined that if homosexuals wanted to serve in the military deeply enough, they would have to give up—temporarily—their newly achieved public identity as homosexual. They could be homosexual and even have homosexual sex; they just had to be discreet. In exchange, the military promised they would not go on the kind of “witch hunts” that had characterized some prior periods. Such a bargain makes no sense if some people are not, at their core, homosexual.

It is fair, I believe, to begin any discussion like this by raising this critical question. If people who claim to be homosexual are not, in fact, correct about this foundational fact, then we are having one kind of discussion. I am not in a position to have that discussion and could not conduct it competently.

I not only believe that I am homosexual in exactly the way that heterosexuals are heterosexual—inherently, unvaryingly, fundamentally—I also believe that most Americans are in agreement. And if some people, however few as a percentage of the general population, are homosexual, the question then is what to do about them.

Fundamentally Gay

It is here, then, that Anderson’s argument has to be engaged. If homosexual people do not, in fact, exist—if they are, in fact, fundamentally heterosexual but acting contrary to their sexual nature—then much of her essay makes sense. People who are fundamentally heterosexual might well be worth moral or public attention if they are not acting in concert with what can be construed as a biological imperative of heterosexuality: reproduction.

Such moral mandates are inconsistent with our country’s notions about personal liberty and individual autonomy. It should go without saying that Anderson’s vision of the liberty promised in our Constitution is a somewhat limited one when it comes to sexuality. If two of her concerns with homosexuality—lack of procreation and lack of two proper gender role models—were applied to heterosexuals, the realm of family law in this country would look very different than it does now.

But Anderson does not extend her concerns to propose, say, a ban on single heterosexual parents raising children or a requirement that all heterosexuals, as a condition of being married, must procreate and, presumably, prove it to the state. Her argument is animated only when these concerns can be aimed at homosexuals.

As a homosexual, I find the idea that I have an obligation either to marry someone of the opposite sex or at a minimum to refrain from acting in accordance with my own sexual orientation cruel at least. What sort of options are these to impose on a class of citizens in a nation that prides itself on its promise of liberty (not to mention justice) for all? Would any heterosexual live under such a government-imposed regime?

Equally important to me as a citizen, it is a position that seems to me to cause actual harm to the greater society. If I were to accept Anderson’s view and find myself some good woman to marry (declining Anderson’s alternate invitation to live a celibate life, which very few Americans would find reasonable), how would that be good for the woman I chose? I will assume Anderson’s position is that it would be good for me, somehow, to act as if I were a heterosexual, even though I know I am not, because acting in this way makes me more “moral” or (if she is not making a moral argument) more socially acceptable or correct.

But even if this is good for me, how is it good for the woman I marry? According to the standards of prior generations, I should not be candid with her about my sexual orientation, since I am wrong about that fact. My attraction to men is inappropriate, something I should be ashamed of, and I should keep it to myself or, at the most, confess it to a priest or other moral authority to ask forgiveness or seek correction.

I doubt even Anderson would ask such deception of me. By more modern standards, I should be fully honest with any potential spouses about my attraction to men (which has never varied in my entire life) and hope for the best. Modern marriage is based on the trust of the partners, and trust requires candor.

There are, I am sure, some women who might want to marry me under those conditions. But is this really any woman’s ideal? Is it anything most reasonable women would even accept?

The same, of course, is true for lesbians and any potential men they might choose as mates. While there might certainly be some takers, this is hardly the image of wedded bliss most people have in mind when they talk about marriage.

This leads to an obvious, but underarticulated point. When it comes to marriage, heterosexuals and homosexuals are incompatible. Heterosexuals should marry heterosexuals, and homosexuals should marry homosexuals.

This is not a theoretical objection to Anderson’s position but a very practical, everyday one. I cannot speak for her, but I can certainly say that if I were a heterosexual woman, I would not be looking to march someone like me down the aisle.

And that is where so much of her argument ultimately fails. It is not just homosexuals who have a stake in the fight for gay marriage; it is heterosexuals as well. It is in the best interest of heterosexuals to make sure that, if and when they choose to marry, the person they marry is not engaging in a deception that society not only approves but is actively encouraging through its laws. The best way—and really, the only way—for society to assure that is to assure that homosexuals are not steered toward the closet. Every gay man and every lesbian who is countenanced in and supported for presenting themselves as heterosexual to promising spouses is a potential divorce in waiting.

Majorities v. Minorities

Anderson makes a legitimate point that marriage should be about more than sex—or, at least, sexual pleasure. As an argument against gay marriage in America, though, this carries very little weight. Heterosexuals won the battle to enjoy the pleasure of nonreproductive sex four decades ago when the U.S. Supreme Court ruled in Griswold v. Connecticut that married couples had a constitutional right to use birth control that the government could not interfere with. The natural consequence of this constitutional right is that the government may not command that married couples ever have children if they choose not to. The right to use birth control was subsequently expanded to unmarried heterosexuals. And it is a right that nearly all heterosexuals have embraced with vigor. According to Planned Parenthood, 98 percent of American women use birth control at some point in their lives.[3]

It is here, I believe, that most heterosexuals may first have begun to understand the perspective of homosexual couples. If heterosexual couples have a constitutional right to enjoy sexual relations while choosing never to have children, why should homosexual couples be treated differently under the law?

More importantly, in light of the Constitution’s equal protection clause, how could heterosexuals give themselves the right to enjoy their own sexual lives while denying it to a minority? The entire foundation of equal protection is to prevent majorities from using their political superiority to privilege themselves in law. And this is a constitutional principle. It was expressly designed to restrict political majorities, however large, from denying minorities rights that the majority wishes to reserve for itself.

Anderson is certainly right that many states have voted to change their state constitutions to expressly deny homosexuals equality in marriage. But it is important to focus on that for a second. In each of those states, the concern was that the guarantee of equal protection should be taken at face value, meaning that same-sex couples should be treated equally to their heterosexual counterparts. The voters, therefore, preemptively withdrew that promise of equality before it could be claimed. For the first time in our nation’s history, we are seeing majorities in some states explicitly reject as a constitutional value the idea that a particular minority is entitled to the equal protection of the laws.

Perversely, this shows why equal protection is so profoundly important in the first place. Majorities really can sometimes ignore the perspective of a minority. That is the original sin of our nation. It is not necessary to compare African-Americans and homosexuals in all ways in order to see what they do have in common as a constitutional matter. Majorities had the power to—and did—use the democratic prerogative to ignore their perspective as human beings, denying numerical minorities in the political sphere the equality the Constitution required.

It took well over a century for the white majority to see the world the way African-Americans do and come to a shared perspective. That change was epochal, and it is still going on.

The recent rounds of constitutional amendments withdrawing equal protection from same-sex couples show that a majority of citizens in many states still do not understand the perspective of homosexuals when it comes to relationships. This is neither unusual nor should it be unexpected. In fact, it is surprising that citizens in so many states (namely, New Jersey, California, Massachusetts, Vermont, Hawaii, and Connecticut) have given virtually equal legal treatment to same-sex couples. It was only in 1985 that the California cities of West Hollywood and Berkeley became the first governmental entities in the world to provide legal recognition to same-sex couples, followed in 1989 by Denmark, which was the first to offer national legal recognition.

Today, same-sex marriage is available nationally in the Netherlands, Belgium, Spain, Canada, and South Africa, and rights equivalent to marriage are available to same-sex couples in countries as varied as Croatia, France, Germany, Iceland, New Zealand, and the United Kingdom.[4]

Perhaps Anderson is correct that societies that accept gay equality have a “death wish.” But I tend to think the intemperance of her rhetoric is out of proportion to the issue. There is little, if any, harm to heterosexuals in allowing homosexuals to marry one another,[5] and there is some benefit to heterosexuals in removing more closeted homosexuals from the potential heterosexual marriage pool.

More important, even than that, though, is the benefit to homosexuals. No heterosexual can truly appreciate what the world looks like when you are denied the right to marry the one person you truly love. This is simply beyond the experience, and even the imagining, of most heterosexuals. The damage from that emotional void has harmed generations of lesbians and gay men who have patched over its ruin for centuries. The positive difference this change will make to every single homosexual is incalculable.

Like all other Americans, homosexuals take the promises in our Constitution seriously. The liberty to marry someone you are not attracted to is little liberty at all—for either partner to such a sham. And the promise of equality is a cruel taunt if it can be taken away by the very majority it was intended to limit in the first place.

I choose to take the longer view. The ancient notions and stereotypes about homosexuals that still animate some political discussions are eroding with each generation and within every heterosexual who knows and cares for someone who is homosexual. It takes time for these one-on-one interpersonal relationships to work themselves into the larger political sphere, but that is happening, and the changes it will bring are inevitable. That was always the hope of our founders: that, over time, an enlightened citizenry would be able to learn from its mistakes and correct them. I believe we are undergoing just such a correction and that we will once again prove our founders right.