“Choice”, homosexuality, and the law

What does it mean to say that being gay is a “choice”? This particular claim is often the focus of arguments that ultimately prove to be aimless, tired and irrelevant. It’s not uncommon for it to be used as some kind of accusation, as though its truth would delegitimize homosexuality itself. Of course, the natural rejoinder is that being gay is as much of a choice as being straight – if one is a choice, then the other must be as well.

At this point, something very revealing happens: Some people will insist that they were in fact born straight, and that this is not a choice. Clearly, these do not have to be mutually exclusive. And for something like homosexuality to be “a choice” requires that alternatives must exist to choose from. If there’s only one option, then making any kind of choice is impossible. So what exactly is going on here? Do people even know what they’re talking about?

While the role of volition in sexual orientation may be limited in its ethical implications, the legal consequences of this idea could have a significant impact on gay people. This year, the Department of Justice announced that it would no longer be defending Section 3 of the federal Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriages. In response, the Bipartisan Legal Advocacy Group of the House of Representatives appointed outside counsel to defend the law.

In a brief filed last month, their counsel claims that sexual orientation does not qualify as an immutable characteristic, which is one of the factors in whether laws that discriminate based on sexual orientation are required to pass a higher standard of judicial scrutiny. Their filing cites various statements that “individuals have reported changes in their sexual orientation in midlife”, that 50% of respondents to a study “had changed their identity label more than once since first relinquishing their heterosexual identity”, that “more than 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation”, and that “homosexuality is primarily behavioral in nature”.

To determine whether sexual orientation is an immutable characteristic, and whether being gay is indeed a matter of choice, it’s important to understand what it actually means to be gay. In their efforts to show that homosexuality is not immutable, the defendants have confused three separate aspects of sexuality: sexual orientation, sexual identity, and sexual behavior. These characteristics are not interchangeable, and treating behavior and self-identification as equivalent to orientation is a mistake.

Sexual behavior, being voluntary, is obviously a matter of choice, but it is not reliably indicative of sexual orientation itself. Gay people having been in prior relationships with opposite-sex partners does not mean that they are actually any less gay, or that they weren’t gay before. Conversely, straight men in prison who choose to have sex with other men are not gay in their orientation, and almost always resume a pattern of heterosexual behavior upon their release. Bisexual people are not constantly in transit between being gay or straight depending on the gender of their partner at any given time – they remain bisexual throughout, whether their behavior is homosexual or heterosexual. And people who are celibate do not cease to be gay, straight or bisexual – their lack of sexual behavior does not translate to a lack of sexual orientation. People’s behavior can vary independently of their actual orientation.

Likewise, self-identification does not always correlate with sexual orientation. Gay people may identify as straight earlier in their lives prior to coming out, or later in their lives without ever coming out, but this doesn’t mean they’re not gay. People who are to some degree bisexual may identify as gay or straight for personal or political reasons, for the sake of simplicity, or because they feel it describes them more accurately. But however they identify, this doesn’t alter the reality of their orientation.

50% of a sample reporting that their own self-ascribed identity has changed does not mean that their actual orientation which is the subject of such labels must have changed as well. Nor does the failure to switch one’s chosen identity mean that one’s underlying orientation has remained completely static. And even if self-identification were to be considered identical to sexual orientation, this would leave another 50% who did not report such changes. Indeed, the study cited in the filing showed that an overwhelming majority of the 89 participants reported either no change in their identity, or a switch between identifying as lesbian or bisexual. In other words, their same-sex attractions were a persistent feature.

Sexual orientation itself can sometimes be a fluid characteristic for some individuals, and it can shift throughout the course of their lifetime. But this is the result of an involuntary process, and it does not mean that their actual orientation is subject to conscious choice. It’s intuitively obvious even to straight people that your own fundamental sexual desires are not something that can be deliberately rewritten at a whim. Even if they do change over time, our higher-order desires about what we wish for them to be are unlikely to have any impact on what they actually are. And if 12% of gay men and a third of lesbians claim to have experienced some degree of choice about their orientation, this would still leave 88% of gay men and two thirds of lesbians who do not consider it a choice. If simple self-reporting is to be taken as definitive here, this leaves a strong majority of gay people for whom their sexuality is not a matter of choice.

So what does this mean for the question of whether sexual orientation is immutable? First, courts must take care to distinguish orientation from identity and behavior. Second, there may not be a simple yes-or-no answer to this. While many people do have an unchanging and unalterable sexual orientation, others claim that theirs is voluntary and fluid. For some people it is immutable, and for some people it is not. As a result, sexual orientation itself does not appear to be something that can be neatly classified as mutable or immutable.

If immutability is a key factor that the level of judicial scrutiny hinges upon, then people who could be considered sexually “invariant” would receive a stronger degree of protection from discrimination than people who are sexually “variant”. Essentially, only some gay people would be “gay enough” to qualify as a suspect class, while other gay people would still be fair game for discrimination on the off chance that they might revert to heterosexuality in the future. Implementing such a distinction in practice, especially for legal purposes, would probably not be easy. It would also be very unreasonable in its consequences. What sense would it make to say that same-sex marriage is only a right for some people, just because they have no realistic alternative? Why is discrimination based on sexual orientation any more permissible when applied to some people but not others?

Given that, for many gay people, their orientation is indeed immutable, discriminating against gay people as a whole is hardly justifiable merely because some of them might have had an alternative. Multiracial people may have the option of “passing” or identifying as any of their constituent ethnicities, but this does not exclude them from protections against racial discrimination, nor does it mean that race itself is no longer considered a suspect class. Interracial marriage is obviously a choice, and not an immutable characteristic – after all, interracial partners are fully capable of marrying someone of their own race. Yet discrimination on this basis is still prohibited. Straight people have sometimes been known to come out as gay, but nobody would consider it acceptable to expect that straight people should simply wait until their orientation can accommodate a same-sex partner before they’re allowed to marry. Given that most of them are unlikely to experience such a change, imposing this on all of them would make no sense whatsoever.

Calling sexual orientation mutable is simply not correct, yet calling it immutable would also not be correct. But when the only other possibilities are falsely regarding everyone’s orientation as mutable when it most commonly is not, or instituting an unprecedented and impractical system of distinguishing between people whose orientation is stable or unstable, the best and most viable option would be to treat sexual orientation as an immutable characteristic in practice. This recognizes the fact that orientation is most often an unchanging feature, and rarely is it under voluntary control. Anything less would be contrary to fact, inconsistent in its treatment of individuals, and would impose an undue burden upon people by requiring that they alter their sexual orientation in order to enjoy the same rights as everyone else. For the purposes of law, the most realistic choice is that being gay is really no choice at all.

A napkin is not an argument: Deconstructing Santorum

I really hate it when I have to make someone’s own argument for them. Simply being wrong is one thing – at least this can be handled directly. But if you’re so unintelligible that we all have to try and reconstruct what you meant before we can reply, that’s just laziness. Yes, I’m looking at you, Rick Santorum.

Over the past month, the former senator has deployed an increasingly bizarre series of analogies in an attempt to explain why marriage should be reserved for heterosexual couples. The typical structure of his argument involves claiming that a certain thing is not another different thing, and that this thing will remain what it is regardless of what anyone calls it. To illustrate this, he’s pointed out at various times that a napkin is not a paper towel, a glass of water is not a glass of beer, a tree is not a car, and a cup of tea is not a basketball.

What are the implications of this? Santorum insists that the essence of marriage is not something that can be changed, indicating that he seems to envision marriage as some kind of untouchable abstract concept that exists independently of humans and their opinions. In other words, marriage is something that’s between a man and a woman, regardless of how we choose to define it. As an argument in favor of his position, this is almost entirely devoid of substance. If the question is why marriage should consist of a man and a woman, his answer is only a restatement of this claim: that marriage consists of a man and a woman. All the talk about napkins and beer is just an attempt to make such a simple assertion seem more meaningful than it really is.

Even if marriage did exist as some concrete and unchanging entity in the space of abstract ideas, this still doesn’t make that particular definition binding on us in terms of how we treat marriage in a legal, social, and practical sense. In reality, marriage is a complex and detailed phenomenon, and we’re in charge of how we choose to manage this regardless of any static metaphysical definitions of what marriage is. In practice, marriage is whatever we designate as marriage. And if we were beholden to this supposed Platonic form of straight-only marriage, what’s to stop us from simply developing some kind of inclusive super-marriage that encompasses a variety of marital relationships? Marriage could remain as whatever Santorum claims it is, but that doesn’t mean we have to incorporate this particular concept into how we regard people’s intimate relationships.

Of course, this is not the only component of his argument. As he sees it, marriage must be between a man and a woman because it provides a benefit to both partners, serves the purpose of raising children, offers stability to the family, and contributes to society as a whole. While this is at least more informative than merely claiming that marriage is inherently heterosexual, none of these elements of marriage are exclusive to straight people. It makes no sense to say that only heterosexual couples could possibly benefit from marriage, or have children to take care of, or require stability, or contribute to their community. If gay couples serve the very same role as straight couples, why wouldn’t they be included under this definition of marriage? A napkin may not be a paper towel, but the corollary to this is that a napkin is indeed a napkin.

Santorum contends that any departure from a heterosexual ideal of marriage would then legitimize marriages that are polygamous or incestuous in nature. But this is equally applicable to his own argument. If this limited definition of marriage is supposed to preclude the possibility of any other such marriages being recognized, why would another limited definition that includes gay couples be unable to do the same? And if another exclusive definition that goes no further than encompassing gay and straight couples would somehow open the door to incest and polygamy, how is his own definition any more capable of preventing this?

Marriages of an incestuous or polygamous nature have taken place throughout history, and these marriages still happened regardless of his Platonic marital ideal. Clearly, they were also not the result of same-sex marriage being recognized. Widespread disapproval of homosexuality did nothing to stop people from committing incest and polygamy. As Rick Santorum would say, if two people can get married, then why not three people, or 10 people?

In light of this, it’s plain to see that his heterosexual definition of marriage does not occupy some privileged position in terms of its ability to prevent any such additional unions. So what grounds does he have to demand this from a standard of marriage that includes gay couples? If incest and polygamy are what he objects to, then he can make an argument against incest and polygamy. But an argument against incest and polygamy is not an argument against gay marriage. And it’s also not a napkin.

Siding with hate: Michael L. Brown

In February of 2008, 15-year-old Lawrence King was killed at E.O. Green Junior High School by his classmate Brandon McInerney. He was shot in the back of the head at point-blank range in the middle of a computer lab full of students, and then shot again as he lay on the ground. Lawrence had often been bullied by other boys for being openly gay, and Brandon had been teasing him for weeks. Lawrence responded by flirting with him. Brandon invited his friends to gang up and attack Lawrence, but none of them took an interest, so Brandon announced that he was going to get a gun and shoot him.

Several months after the shooting, Brandon told a psychologist that he was driven to kill Lawrence because he was insulted by his advances and because he wore makeup and high heels at school. On the day of the shooting, Brandon claimed to have had second thoughts about it, until he overheard Lawrence claiming to have changed his name to Leticia. The psychologist testified that this caused Brandon to enter a “dissociative state” for the duration of the killing. A mistrial was recently declared after jurors couldn’t agree on whether to charge Brandon with first-degree murder or voluntary manslaughter.

In a case like this that so exemplifies the defense strategy of blaming gay victims, even children, for provoking their own death, it’s no surprise that those who bristle at the very idea of gay youth would be desperately searching for a way to twist this to their own ends. And Christian commentator Michael L. Brown has seized this opportunity in the most vulgar way imaginable.

In a column on the American Family Association’s news site, Brown tries to blame just about everyone except for the murderer. Instead, he blames the school because they didn’t stop Lawrence from wearing makeup, which would have been a violation of California’s anti-discrimination laws. He blames gay people for opposing “any form of counseling that does not affirm homosexuality”, as if that would have been even remotely helpful here. He blames gay-straight alliances for allowing students to identify as gay “without their parent’s knowledge”. I didn’t know anyone needed their parents’ permission to have a sexual orientation. I’m pretty sure that’s not how this works.

But most of all, he blames gay rights groups for supporting gay students and encouraging them to be themselves in an environment that’s potentially dangerous to them. According to Brown, they should be telling these students to live in secrecy for their own protection during the entire time they’re in school. You know, it takes some real effort to miss the point so badly. Is this how we address bullying and harassment in schools now? By making the victims responsible for concealing themselves, and letting fear and violence prevail unchallenged?

If this wasn’t about the harassment of minorities, no one would even entertain such an insulting idea. If schools were plagued by anti-Christian violence, would we see Michael L. Brown blaming Christians themselves for working to make schools safe for Christian students and encouraging them to stand up for their rights? Would Christians be at fault for allowing students to wear crosses at school and identify as openly Christian? Would he tell these students they should just keep it a secret for the duration of their youth?

And yet gay rights groups are now expected to be complicit in the silencing, erasure, and closeting of gay students, for no reason other than to placate those who despise them. They’re supposed to fall back and appease these threats instead of fighting for a learning environment that’s safe for every student. No one could possibly believe this is an effective, responsible, ethical or humane way to address any kind of bullying.

Unless, of course, you don’t think the harassment of gay students is something to fight against. Unless you think the goal of reducing bullying is somehow compatible with having counselors tell students that their gay classmates are sexually disordered deviants who are acting contrary to God himself. Unless you think that not committing violence against gay people is simply too much to ask of everyone else, and their victims should be expected to pay the price. Unless you lack any genuine concern for students who just want to go to school without being in danger every day. Unless you’re a miserable, hopeless wretch with a Bible for a heart!

Anyone who thinks this is a viable solution must not realize that this has been tried before. Gay people have had to stay closeted for centuries simply for their own safety, and this did absolutely nothing to eliminate the hatred that put them in danger. That wasn’t good for anyone. But when being gay didn’t have to be a secret anymore, that started changing. People who personally know someone who’s gay are much more likely to have positive attitudes, and schools that support their gay students and specifically prohibit anti-gay bullying are safer as a result.

We don’t need secrecy to be safe, and no child should have to live with the terrible bargain of fear that forces them into hiding. Yet that is what Brown demands of them when he asks that we do nothing. There is a better way, and it’s not hard to see that the problem lies with the bullies rather than their victims. So why not start acting like it? When students are being harassed, attacked and even killed for being gay, the last thing we need is more of the same. And if your first thought after the murder of a gay student is that they shouldn’t have been so gay, what the hell is wrong with you?

Projective stupidity and Jesus

Have you ever noticed how some people tend to assume you’re just as dumb as they are? It’s not that they’re necessarily being patronizing or disingenuous, they’re just genuinely ignorant. They expect you to believe what they’re telling you because they believe it themselves. None of us are exempt from this, of course – we’re all subject to our own limitations here. It just becomes especially striking when people make the most transparently terrible points, without even realizing how bad they are. And nowhere is this more apparent than with arguments for the divinity and resurrection of Jesus. Some people really seem to believe that I’ll find these claims just as compelling as they do, to the point that they fail to anticipate even the most obvious responses. I have to second-guess myself on this every time, because I keep thinking I must have missed something – this couldn’t possibly be what they’re really saying. But it is. It’s just that awful.

By far the most glaring oversight is when events from the Gospels are cited as supporting evidence for the alleged resurrection. This, of course, presumes that the contents of the Bible are factual and that all of this actually happened. If that were the case, there would be no need to refer to anything other than the resurrection story itself, because we’ve simply assumed that the Gospels are accurate. We could just point to the part with the resurrection, and say, “There it is!” But if we’re trying to establish the veracity of the resurrection, then the contents of the books which recount that story can no more be assumed to be true than the very event in question.

Some people have claimed that the contents of the New Testament have remained largely intact and unchanged throughout the centuries, but that has nothing to do with whether the events it describes actually took place – unless humans only acquired the ability to write fiction some time after the first century A.D. But even if we grant that the events cited in favor of the resurrection really did happen as claimed, an actual resurrection of Jesus is hardly the only explanation for this, let alone the best or the most likely.

One common argument is that Jesus claimed to be the son of God. Apparently that alone is supposed to tell us something about whether he was actually divine. Yet many people throughout history have said they were the son of God, relatives of gods, or gods themselves. Was all of this true as well? After all, why would someone claim to be the son of God if they weren’t? And yet most of them were probably wrong. The fact that someone has declared themselves divine says nothing about the truth of the matter.

It’s also been said that Jesus supposedly showed exceptional and even supernatural moral wisdom, beyond the ability of any mere human to articulate. The rapid spread and modern prevalence of Christianity is often cited in support of this claim. But what part of his moral philosophy could not have been developed by regular people? Could no human mind figure out that pacifism, humility, personal virtue, honesty, kindness, loyalty and generosity can be good things? What about this is so difficult as to be accessible only to the divine? And if the success of Christianity is supposed to say something about its truth, what does the spread of Islam tell us? Is the validity of a religion contingent upon demographics now? Even if two billion people are Christians, that leaves five billion people who aren’t. Is that supposed to inspire confidence?

Another key point of this argument is that after Jesus was buried, the stone closing the tomb was found to have been rolled away, and the tomb itself was empty. Has this never happened before or since? Was this the only occasion where a body went missing from a grave? It seems plausible that much like how they put the body in the tomb and rolled a stone in front of it, maybe someone removed the stone and took the body out. Does any of this really require the involvement of a god? Is that the only possible explanation for grave robbery? Of course, some people have claimed that there was a guard watching the tomb. Could this guard not have been bribed, or distracted, or a secret Christian, or missing for some reason? It seems we’re meant to conclude that an act of God is somehow a better explanation than a guard being complicit or absent.

Apologists have also claimed that Jesus appeared to many people after his resurrection. And this does occur sometimes. It’s just a question of what actually happened. There’s a difference between people claiming to see something, believing they’ve seen something, and genuinely seeing something. These are not the same thing. Quite a few people throughout history have seen things that weren’t really there, and most of the time when people see the dead, this doesn’t indicate a resurrection. Jesus certainly isn’t the only one to have appeared in this way, but I doubt that Protestants would give much credence to supposed apparitions of Mary that have been certified by the Catholic Church. Even great numbers of people have reported seeing things that didn’t and couldn’t happen, like the sun flying around the sky. This is the result of either willful self-deception, people going along with a popular trend, or an artifact of abnormal brain functioning. We know that this kind of thing can happen, so why does the alleged resurrection require any supernatural explanation?

Finally, many apologists have cited the conversion of various non-Christians who purportedly had every reason not to believe as evidence for the truth of the resurrection. If this is supposed to prove something, what does it mean when someone who desperately wants to believe in Christianity is nevertheless drawn to atheism? What if someone has every reason not to want to believe in Islam, but finds themselves convinced to become a Muslim anyway? This is hardly unique to Christianity.

As further evidence of the devotion of these converts, some people have pointed out that they refused to renounce their faith even when it led to their martyrdom. Would they really have faced death for the sake of a lie? Well, it’s certainly possible. Maybe they were mistaken, or deluding themselves. Maybe they were just really stubborn. Do people only die for beliefs that are actually true? No. People have readily given their lives in the name of all kinds of non-Christian religions and philosophies, and this does nothing to establish their truth. Unwavering faith to the point of death is simply a non-denominational feature of humanity. If even Christians will dismiss the significance of this, how can they use the very same phenomenon in support of their own religion?

All of these arguments demonstrate a startling lack of imagination and an abject failure to consider the mere possibility that there could be other explanations. It just hasn’t occurred to these people. And even if the resurrection of Jesus happened exactly as the Bible says, that still doesn’t mean it was supernatural or an act of God. What if it was the work of aliens, or nanotechnology? Or aliens with nanotechnology? At least we know these things are actually possible. Does that sound ridiculous to you? So why does it make any more sense to believe that it was literally magic?

Yep, you’re a bigot!

Nowadays, one of the most common arguments made by opponents of gay marriage is that they would be considered bigots if gay marriage is legal. The National Organization for Marriage gets a lot of mileage out of the claim that children will be taught that their parents are bigoted, and people of faith will be seen as discriminatory. Recently, former senator Rick Santorum got into an argument with a high school student, where he complained:

I had Piers Morgan call me a bigot – because I believe what the Catholic Church teaches with respect to homosexuality, I’m a bigot. So now I’m a bigot, because I believe what the Bible teaches – now, 2000 years of teaching and moral theology is now bigoted.

Well, yeah! That’s because it is. This fatuous argument reveals two important things about Mr. Santorum and other anti-gay Christians. First, they’re much more concerned about being perceived as bigots than whether they might actually be bigoted. Second, they are unable to conceive of any kind of moral progress that could be inconvenient to their positions or contrary to a particular faith. The sheer self-absorption of this mindset is breathtaking. Imagine if any other prejudice were defended with such an argument. How seriously would we take the protests of white racists that they would be seen as bigots because of integration? How much would we care about the complaints of men that they would be considered bigoted if women are allowed to vote?

It’s plain to see that the discomfort that bigoted people may have with their bigotry being recognized does nothing to change the fact that it is still bigotry. And the idea that we should accommodate their preferred self-perception by continuing to deny equal rights to the targets of their bigotry is so brazenly narcissistic it defies all comprehension. You are not that important! If you have to put up with being seen as bigoted so that people can finally receive their equality under the law, then you’ll just have to deal with it. It’s too bad you got the short end of the stick on this one, but if every hint of moral realization and social change was immediately quashed because some people want to be assured that they’ll always be in the right, there would never be any kind of progress.

And no, your religion does not have the power to legitimize bigotry. Bigoted beliefs do not become excusable just because a church or a book endorses them. You don’t get a pass on bigotry by claiming that a god agrees with you. People came up with the very same justifications for all kinds of prejudice. It changes nothing. Like it or not, your religion will evolve. It might deny this, it might lag behind, but religions are dragged along with the moral climate of society at large. The Catholic Church doesn’t hold trials of alleged witches anymore. Mormon leaders decided that God changed his mind about allowing black people to be ordained. And some day, you will have to face the reality that your 2,000 years of moral theology are helpless next to a moment of moral reflection.

By focusing only on the legal aspects as the key factor in whether or not they’re considered bigots, they’ve failed to understand that this is just a symptom of ongoing social progress. We already see them as bigots, and that’s the very reason why the legal standing of gay people is now a point of contention. The moral validity of anti-gay prejudice has been cast into doubt, and homophobia is no longer regarded as an unquestionable constant of our society. Fighting this on a legal front is just trying to close the barn door after the horse is long gone. It’s not going to stop anyone from seeing you for exactly what you are. And no law, whether earthly or divine, will change that. The only one who can keep you from being a bigot is yourself.

Art appreciation: Robert Ryman’s “The Elliott Room”

In the modern wing of the Art Institute of Chicago, there is a gallery. This gallery contains The Elliott Room (Charter Series) by Robert Ryman. It is one of the most fascinating works of art I have ever seen.

The room features five pieces, which consist of unblemished expanses of white, interrupted only by sparse horizontal and vertical strips of metal, and affixed to the wall by evenly spaced, unassuming bolts. Within this highly limited set of variables, Ryman nevertheless explores a vast range of possibilities. Though the paintings may appear superficially similar, none of them are alike, and each piece projects its own unique character.

But the paintings themselves are not the only art in the room. This particular gallery is a dead end, with only one entrance, and a large window looking out on Millennium Park. And it is this arrangement that permits the emergence of a new and unintended kind of artwork. The first time my girlfriend and I viewed The Elliott Room, we stopped at the threshold and briefly looked around in confusion before leaving. Although we didn’t know it at the time, we had found the key to appreciating the series on an entirely different level.

During our next visit to the museum, we took the time to stop and properly examine the work. The seating affords an excellent view of the entire gallery – including, most crucially, the entranceway. While contemplating the series, we gradually became aware of another part of the room: the audience.

We watched quietly and observed people’s reactions upon first seeing Ryman’s art. A woman with two children stood at the entrance, and turned back almost immediately. A middle-aged man paced around the room, bitterly cursing under his breath. A young couple walked up to the window, scarcely even noticing the artwork. Most people barely set foot in the room before realizing what it was and leaving in instant disappointment. And it was the funniest thing we had ever seen.

In fairness, if you haven’t read the description, the series could perhaps be mistaken for wall mountings without any art on them. And the vast north-facing window often draws people’s attention away from Ryman’s work. But the interaction between the art and its audience is one of the most engaging features of the museum. It’s a surprisingly evocative and challenging piece, and nowhere else did we witness such forceful reactions to an installation. In a way, the very act of putting this series on display has itself become a work of art. It may seem like one of the last pieces that would have the power to take on a life of its own and transcend the intentions of its creator, yet it does so effortlessly. And it is hilarious.

You don’t need to struggle to understand anything about it. All you have to do is sit back and watch what happens. I highly recommend it.