Answering Ted Olson: Selective Immutability.

This blogpost continues my response to Ted Olson's Newsweek article in which he made his argument for merging SSM with marriage.

I quoted from that article in my previous blogpost, "State Disinterest."

Olson wrote:

We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry.

He also wrote that sexual orientation is not chosen but that "to a very large extent" it is immutable.

As I noted previously the marriage law does not inquire about sexual orientation, intended/ chosen or not, before allowing people to marry. On the other hand, the argument for SSM emphasizes sexual orientation and would inject that into the law's regard. Still no SSM law anywhere inquires about homosexual credentials or about membership in an identity group.

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Extrapolating Choice.

There was testimony during the anti-8 trial proceedings in which Olson's expert witness said that his own survey of openly homosexual persons revealed that a significant portion chose their sexual orientation. I wrote a bogpost on this testimony in "Extrapolating Choice". It appears that about 20% of the adult homosexual population are choosers, women more than men.

Olson also said that "gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual."

[Click here to read the middle of this blogpost.]

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Extent of Choice.

Assuming that he is using gay identity as proxy for same-sex sexual attraction, as is commonly done and as is strongly implied in his article, then Olson proposes that "the rest of us" -- i.e. the nongay population -- choose at the same rate -- 20%. Also, that the rate differs between men and women.

That there is any rate above 0% disproves the claim of immutability, as Op-ed noted in a comment under my earlier blogpost. That there are different rates based on sex also challenges Olson's assumptions. At the very least this casts scientific doubt. That his expert witness told of a significantly higher rate, in which 1 in 5 choose, serves to contradict Olson's assertion that science has taught that this trait is unchangeable. [See footnote]

Indeed, the extrapolation would mean that about 50 million adults in the country are choosers of something that Olson says is "to a large extent" unchosen.

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Immutable Relatedness.

Let's apply Olson's stated reasoning to the marriage law's treatment of the eligiblity of related people. As noted in my previous blogpost, some related people may and do marry while others are ineligible.

[Click here to read the rest of the blogpost.]

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Immutability.

Blood relatedness is inborn and immutable. We do not choose our blood relatives.

Also, when a person marries an unrelated person, their blood relatives become related through that marriage. But those blood relatives on either side don't control that particular characteristic which also happens to make them ineligible to marry. They didn't choose it. Many people are born into it. It is not for them to change it. Even parents who choose to relinquish parental status will remain related to their children (and they to their parents and their relatives) for purposes of incest, inheritance, and marriage.

Olson's reasoning would mean that 1) sexual behavior is irrelevant to eligibility and 2) relatedness is "to a large extent immutable".

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Sexual Attraction.

Let's considered sexual attraction instead of sexual behavior.

There is a phenomenon known as Genetic Sexual Attraction (GSA) by which some related people feel a very strong sexual attraction toward each other. Anecdotally, they say that it is very compelling and they can't change it; they are born related and feel hardwired to be sexually attacted; and, they insist, they don't want to change who they are and, besides, what they do sexually is no body else's business. They form mutally loving and caring consensual relationships and sometimes have and raise children together. They pay taxes. They are otherwise law-abiding and pleasant neighbors.

They long for stability and they feel they are slighted by the stigmatization of being disallowed to marry. There is a long history of criminalization and social ostracism -- especially from their families and friends and even religious associations. They feel "closeted" and avoid revealing their GSA to hotel clerks and the like. When their GSA is revealed people react with disgust. Indeed, it can take years for couples to resolve their own conflicted internal feelings. More and more, closely related couples are speaking out and telling their stories and making an emotional appeal against the taboo they live under. Just because they've always been ineligible to marry does not mean the "tradition" should continue. They aren't hurting anyone else's marriage. They should not have to wait for equality.

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A Right Is a Right. Right?

No, I don't think this provides a good reason to change marriage laws, however, Olson's reasoning would encompass a very big challenge to the lines drawn against some related people whose relatendess is unchosen and whose subjective feelings of sexual attraction are "to a large extent" immutable. His argument is not just about gayness if he is advocating equal treatment according to immutability.

Unless he means to be selective about that.

If his arguments are exclusive, he should justify special treatment for gayness. If his arguments are inclusive, he should not be bashful about fighting for abolition of the lines drawn against related people.

Afterall, Olson says that people should not wait for equality. Indeed, he says it is his mission to breach the final barrier toward full marriage equality regardless of sexual orientation, regardless of inborn characteristics, and regardless of minority status.

Yet the nationwide SSM campaign, for which Olson is now a leading litigator, has demonstrated a decided preference for selective immutability.

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Footnote:

Whether or not same-sex sexual attraction is inborn, chosen, or varies with the circumstances from person to person, the scientific evidence is inconclusive. Olson's rhetoric fudges things when he says this trait is "to a large extent immutable" because something is either mutable or not. It is like saying something is very unique; no, it is either unique or not. There are no degrees of uniqueness and no degrees of mutability. Olson hopes to pin homosexuality with the badge of immutability -- which is a term of art in constitutional jurisprudence. That is to say, he seeks to make sexual orientation a classification that comes under the highest scrutiny before the US Supreme Court.

Myself, I don't think this is relevant to marriage since the law does not inquire about sexual orientation, does not bar people based on sexual orientation, and does not treat people unequally based on sexual orientation. It is, however, relevant to the SSM arguments that Olson makes and that SSMers have presented in courtrooms, legislatures, and during referendum campaigns.

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Return to "Answering Ted Olson: Updates."