Born This Way? Or, does it really matter if homosexuality is a choice?

Sex and the City’s Cynthia Nixon drew the ire of gay rights groups for a series of comments she made in an interview with the New York Times last week. Nixon, an out of the closet bisexual person, claimed that for her, being gay is a choice:

“I gave a speech recently, an empowerment speech to a gay audience, and it included the line ‘I’ve been straight and I’ve been gay, and gay is better.’ And they tried to get me to change it, because they said it implies that homosexuality can be a choice. And for me, it is a choice. I understand that for many people it’s not, but for me it’s a choice, and you don’t get to define my gayness for me.”

Armed with swift scorn for Nixon’s comments, prominent bloggers like AMERICAblog’s John Aravosis responded:

“[Nixon] needs to learn how to choose her words better, because she just fell into a right-wing trap, willingly. When the religious right says it’s a choice, they mean you quite literally choose your sexual orientation, you can change it at will, and that’s bull. It’s not a “choice,” unless you consider my opting to date a guy with brown hair versus a guy with blonde hair a “choice.” It’s only a choice among flavors I already like.  And if you like both flavors, men and women, you’re bisexual, you’re not gay, so please don’t tell people that you are gay, and that gay people can “choose” their sexual orientation, i.e., will it out of nowhere.  Because they can’t.  And when you tell the NYT they can, you do tremendous damage to our civil rights effort.  Every religious right hatemonger is now going to quote this woman every single time they want to deny us our civil rights.  Thanks.”

Aravosis is right—Nixon’s comments can be used as ammunition in the anti-gay arsenal, but that’s due to the poverty of our national discourse on issues of sexual orientation and the LGBT community’s complicity in framing the debate on the terms of those who seek its delegitimization.

Extensive research has been conducted with the goal of determining the extent to which homosexuality is an immutable characteristic of one’s biology versus a product of postnatal environmental factors. “Born This Way” has become the reactionary LGBT rallying cry in the Epoch of Gaga. But the scientific question of nature versus nurture has nothing to do with our common understanding of choice, and dwelling on it serves only to obfuscate the actual role of choice in respect to one’s sexual preferences.

For instance, I don’t like chocolate ice cream. I don’t know why I don’t like it, I just don’t. Both of my parents and my sister like chocolate ice cream, so  my preference isn’t a genetic predisposition. Alternately, It may be a combination of past experiences that has led me to disqualify this treat which so many others enjoy. Ultimately though, the question of whether my dislike for it is due to genetics or environmental factors is quite irrelevant— because it is a preference, not a choice. I can choose to eat chocolate ice cream, but I can’t choose to like it.

Seen in this light, Nixon’s comments are understandably frustrating. Aravosis writes, “What the haters, and Cynthia Nixon, are leaving out is that for most men it’s an easy choice since they’re not into other men at all, they’re only into women.  But for gay guys, they’re into other guys, and not into women.  So for us, it’s the only choice; and for straight guys, it’s no choice at all.”

If our preferences are our preferences regardless of biological or environmental factors, “Born this Way” seems to be a logical framing of the issue. But does claiming homosexuality to be an inborn trait represent an effective Kung Fu chop to the haters? Hardly. Whether a rapist is “born this way” or freely chooses to act as he does affects only whether society will send him to a mental institution or to prison. The fact remains that, regardless of the underlying cause of his actions, society regards him as a dangerous deviant.

By sounding the “Born this Way” horn, the LGBT community falls into a similar trap. To those who are repulsed by homosexuality, who seek to deny gays protection under the law, and who just wish they would “crawl back into the sewer,” arguing that homosexuality is an inborn characteristic does nothing to expunge the deviance and sin associated with it. Born this way or chose it—the only difference it makes to the haters is whether to “pray the gay away” or seek a medical intervention.

Nixon raises this point in the latter part of her New York Times interview:

“A certain section of our community is very concerned that it not be seen as a choice, because if it’s a choice, then we could opt out. I say it doesn’t matter if we flew here or we swam here, it matters that we are here and we are one group and let us stop trying to make a litmus test for who is considered gay and who is not…Why can’t it be a choice? Why is that any less legitimate? It seems we’re just ceding this point to bigots who are demanding it, and I don’t think that they should define the terms of the debate.”

There is an unintended yet real undercurrent of self loathing hidden in the “Born this Way” defense, and by using it, the LGBT community is unwittingly allowing the opposition to frame the debate to their disadvantage.

“I can’t help the way I am! I was just born this way!”

In order for the message of sexual orientation equality to gain traction, the LGBT community needs to shift its focus from the argument that gayness is a regrettable but unavoidable inborn trait to the argument that the debate itself doesn’t matter. If there’s nothing wrong with being gay, whether it’s a biological trait, a choice, or merely a preference, the nature versus nurture issue is irrelevant.

Let’s return to my dislike of chocolate ice cream. You probably didn’t think that paragraph was the most enthralling. Why? Because frankly, nobody cares whether or not I like chocolate ice cream. The factors informing our choices and the reasons behind our preferences are important only if our preferences and choices have moral consequence. Since no one thinks the choice between Chunky Monkey versus Cherry Garcia raises any great moral quandary, no one cares to debate why one would choose one over the other.

It is precisely on these grounds that the LGBT community should stake their claim. To the haters, homosexuality has moral consequences regardless of its cause. The claim that some people are “Born this Way” will neither convince religious right-wingers of their own bigotry nor deal a death blow to gay rights opposition within our national discourse. But attitudes are changing towards homosexuality, not because it’s becoming seen as less and less of a choice, but because the heterosexual majority is becoming increasingly familiar with LGBT people carrying out loving, supportive relationships, raising children, and being productive members of society—in short, it sees these alternative lifestyle preferences as carrying little or no moral relevance.

The LGBT community would be better served to abandon as fruitless ground the framing of the debate on the terms of nature versus nurture. Perhaps then, Lady Gaga shouldn’t have written a song called “Born this Way,” but rather “Who the Hell Cares?”

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7 Arguments for Gay Marriage

The August 4 landmark ruling striking down Proposition 8 as unconstitutional in Federal court is just the first act of the legal drama yet to come on the issue of gay marriage. Federal court Judge Vaughan Walker declared that “the ballot initiative violated the Constitution’s due process clause and its guarantee of equal treatment”. At the heart of Walker’s decision was his conclusion that there exists no rational basis to exclude gays and lesbians from the institution of marriage.

Like any juicy political drama, this ruling was bound to produce some angry heckling from the crowd; Minnesota Rep. Michele Bachman criticized Judge Walker’s ruling, stating that it was yet another case of a “progressive activist judges who issue their personal moral pronouncements under the guise of constitutional law.” Funny that the term “activist judge” doesn’t apply in the case of Citizens United v. FEC case, which overturned decades of financial regulatory legislation—but that’s another story.

Aside from the beltway, the issue of gay marriage seems to be one in which everybody has an opinion—and a strong one. It is likely true that gay marriage is the civil rights issue of this generation, and in the spirit of hearty debate, I took to the internet to find out what people thought about the issue.

Of these conversations, I charted approximately seven arguments in opposition of Gay Marriage. Doubtlessly this list is not exhaustive, but these seven seemed to sum up most of the opposition to the issue I have heard thus far. Here are these arguments and my thoughts in response…

The “Will of the People” Argument

“The ban is the will of the people. No judge should disrespect the will of the people.”

While such a claim seems easy to defend, given its stalwart support for the democratic process, I think it misses an integral component of the ideological foundation of this country.

Going back to Immanuel Kant’s conception of inherent human worth, as every being capable of rational thought is an “end-in-itself”, and its influence on the classical Liberal tradition of natural rights, such as are imagined by John Locke, reinforced by philosophers like J.S. Mill and codified into law by the Founding Fathers, there are certain properties, which we refer to as rights that inhere in any human being.

These rights, which society exists to safeguard, cannot rightly be taken away regardless of whether such abridgment is the will of the people. This means that even if everyone in the country voted to mandate that I never speak again, this overwhelming majority would lack the authority to stifle my inherent right to free speech.

Judging by the fact that the law and our Constitution mandates that all people are born equal, insofar as it is illegitimate to discriminate based on one’s non morally relevant characteristics (properties that are not chosen, “accidents” of birth—race, parentage, sex, etc), and that there doesn’t exist any compelling legal reason why sexual orientation should elicit differential treatment under the law, I would argue that the rights of homosexuals should legally be immune from the decisions of the will of the people.

Ted Olson, one of the attorneys who won the momentous victory overturning Proposition 8 stated this case well. On Fox News Sunday, challenged as to why the people of California shouldn’t have the ability to define marriage, Olson responded, “Would you like Fox’s right to free press put up to a vote?…These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights.”

The “Government Has No Business Meddling with Religion” Argument

Turning to a different conversation thread, one member of the online community presented an argument that was quite apt—that government simply has no business getting involved in marriage: “Marriage is an institution of the church; therefore, it is immune from being controlled by the state. A state cannot legalize marriage between homosexuals… Homosexuals can have their own private civil unions, but public displays of marriage are only reserved for heterosexuals in the house of God.”

I agree that religious matters are beyond the purview of the state, and to compromise these borders threatens the separation of Church and State. However, as things stand now, the State does recognize marriage—that is, one can be married within a religion, and the state will recognize it as a marriage per se, not as a civil union. The logical inconsistency here is that the State recognizes the concept of “marriage” in the first place. If we want to hold true to the separation, the State shouldn’t recognize marriage at all; if people get married in a place of religious worship, they should be “married” within their faith, based on its theology, but in the eyes of the State, they should be recognized not as “married” but rather “civilly-unioned”.

The fact that the State recognizes this category means that it is privileging religion, as the State then codifies these religious dictates into law. I suppose this means that properly speaking, I’m against state-recognized gay marriage. But it also means I’m against state recognition of all marriage.

By the end of that conversation, I knew that my interlocutor and I would not see eye-to-eye—there was just a bit too much fire and brimstone clogging up the debate

The “Gay Marriage Harms Society” Argument

I then moved on to address another argument—that gay marriage is detrimental to society in that it doesn’t produce the necessary social benefits of heterosexual marriage, “namely the procreation of children raised to maintain life through the future… Homosexuality/Lesbianism does not contribute to the highest and best of community life. They breed all manner of disease potential including deviate [sic] behavior and mental illness…”

Aside from the blatantly incorrect claims about homosexuality and its proclivity toward spreading disease and illness, I tried to address what I thought was an argument that rested on several invalid conclusions.

Firstly, if traditional marriage’s sole purpose and the reason it deserves special status under the law is that it allows for procreation, then heterosexual couples with no offspring, don’t deserve the same protection as married couples with children. Is this a conclusion society willing to support?

Secondly, regarding the “dysfunctional” nature of homosexual couplehood, it is disquieting to consider that divorce rates in this country are staggeringly high; an average of 41% of first time marriages and an even greater percentage of second and third marriages end in divorce. If one considers divorce to be a dysfunction of marriage, then heterosexual marriages quite likely to be dysfunctional. However, we do not take into account this potentiality for dysfunction when agreeing as a society to sanction heterosexual marriage. Furthermore, when people get divorced, the law does not deem them as co-participants in an act of social dysfunction, and none of their rights are abridged. Society even allows divorcees to marry again despite their proven negative track record. Therefore, on what basis other than a double standard can one then account for the claim that homosexual marriage should not be allowed because of its dysfunctionality?

The Special Privileges Argument

But in terms of double-standards, the next argument takes the cake. It actually would have been comical if it weren’t people’s rights we were talking about: “They have equal treatment already. Any man can marry anyone provided that person is:
1. An unmarried woman, and
2. Has reached the age of maturity, or
3. Has parental consent.
No man can marry anyone who does not meet those criteria. That means everyone had the same rights…Now, a judge has decided some people need special privileges.”

Thinking about the “special privileges” claim, I had to respond to the sheer unfairness of this argument.  How can it be that homosexuals receive special privileges that heterosexuals do not if the former aren’t allowed to marry the consenting adult of their choice they choose while the latter are?

This argument is like saying, in a country which mandates a state-religion, “everybody has the same rights because everybody has the right to be Christian and nobody has the right to be Jewish, Muslim, Hindu, etc.” For a member of these other religions, being able to practice one’s faith in this hypothetical country is not a “special privilege,” it’s a matter of equality under the law. And that’s where that conversation ended.

The “Unnatural” Argument

But no debate about homosexuality and gay marriage would be complete without the requisite “it’s just not natural” argument, and that’s exactly where I turned next.

The problem with the “no parallel in nature” argument, is that it’s simply wrong, and those who make this claim should  consider the work of Dr. Joan Roughgarden, a biologist at Stanford University, who states that more than 300 vertebrate species have been found to practice homosexuality.

But to take the argument further, I don’t think people who make the “unnatural” argument quite realize its logical conclusion. If we establish a standard by which something is judged as acceptable based on whether it is found in nature, then anything not found in nature is thus rendered unacceptable. This means that the keyboard I’m typing on, the computer I’m working on, the chair I’m sitting on, the desk I’m occupying, the building I’m located it, the car I use to get to work in, the street I drive on are all unacceptable. All of a sudden, a whole host of human behavioral patterns that aren’t mirrored in nature become unacceptable—from dinner parties to international diplomacy. Even the sedentist agricultural foundation for modern civilization is called into question.  At this point, the distinction between “natural” and “unnatural” seems to have no meaning, for it doesn’t include a mechanism for adequately determining to what extent humanity is part of nature and at what point our higher cognitive capabilities separate us from the natural world. The conclusion to this absurd line of reasoning is simply that using nature as our guide for what is acceptable automatically invalidates almost every single part of the human experience.

The “States Rights” Argument

One of the most challenging arguments I heard that day was the claim that the recent ruling infringes on States Rights, and represents a wider threat to the separation of powers by augmenting the scope of the Federal Government; This is an issue for each state to decide. States are not political subdivisions of some Empire. This is a Republic with a federal government having limited enumerated powers, not an Empire. Each state has its own requirements for marriage and a marriage license, just like driver’s licenses, business licenses, and professional licenses. The people of each state shall decide for themselves.” Thus, by extension, since the definition of marriage is not an enumerated power of the Federal Government, it is a power reserved for the states to decide individually (see: 10th Amendment and Federalist #45).

Aside from the fact that, the legal category of “marriage” is actually a cross-state, federally recognized designation, accepted by each state regardless of the location of its inception, while civil unions are not federal designations recognized outside of the state of their sanction, I think this argument rests on one glaringly incorrect premise—this case has nothing to do with the Federal Government. This argument omits the fact that the Federal Courts are part of the Judicial branch.

States rights rests on a blanket clause vesting all rights not specifically granted to the Federal Government with the States or the People. However, even granted this blanket clause, there are certain acts and decisions that neither the Federal Government nor the States have the authority over—our fundamental rights.

The point is not that the Federal government has legitimate authority to make decisions concerning our rights, but neither do the states—that power rests with no branch of the government. The very fact that the Judicial branch can overrule an Executive or Legislative act pertaining to our rights (as per Marbury v. Madison) means that they are essentially outside the sphere of any authority to abridge. This is not a case of the Federal government overstepping its powers, this is a case of a branch of government acting precisely within its sphere of authority.

The “If We Allow Gay Marriage, What Next…” Argument

And finally the coup de grace, the “slippery slope”—absurd by nature yet extremely difficult to dismantle logically.

Using your logic, are you going to support polygamy?
A man and two women?
Two men and a woman?
Three men?
Four women?
Or any combination?

Where do we draw the line? There isn’t an easy answer to this challenge. The slippery slope argument is so powerful because it’s often impossible to find adequate reasoning to draw a resolute line within a subtle spectrum. But it’s also the reason why the slippery slope argument is misleading and fallacious.

In essence, the slippery slope proposes that any change in the “traditional” structure marriage will result in the “deterioration of all other marital restrictions”. If this were the case, incestuous or polygamous marriages, as well as a whole host of other deviant relationships such as necrophilia are only a hop skip and a jump away. (I can just imagine closet necrophiliacs anxiously waiting for the legalization of gay marriage so they can start raiding city morgues). Once we open the floodgates, there will simply be “no restrictions on the form or function of marriage.”
The problem with this is argument, according to Dahlia Lithwick, is that it is intellectually dishonest and its logical conclusion “implies that no social reforms should ever be undertaken”. But if cases in which countries have legalized gay marriage are any guide, there is no necessary link between it and all the evils of Pandora’s Box; “Countries such as Denmark, Sweden, Canada and the Netherlands have all legalized same-sex unions without legalizing polygamous or incestuous ones.”

Why? slippery slope arguments assume that one thing necessarily leads to another—and another, and another, until before we know it, we’re in strange and terrible territory. It thus concludes that, to avoid a negative outcome, we mustn’t undertake the action in question. The fallacy in this assumption is that there is no necessary connection between the steps—restraint is possible,

An epistemological problem with slippery slope objections to gay marriage is that statements such as “gay marriage will lead to bigamy, polygamy, incest, adultery, bestiality…” are projections into an “unknowable future”. Asking proponents of gay marriage to prove these marriages won’t be bad for kids/families is equivalent to demanding one prove a negative—a logically impossible task. Ultimately, “The law cannot know the future social effects of legalizing gay marriage; we can only determine whether it is fundamentally unfair to bar a whole class of citizens from a privilege constitutionally afforded the rest of us.”

Thus, we must recognize that slippery slopes are metaphorical at best, and should not be heeded as a necessary continuum of social change. It is, after all, possible to critique and evaluate each step on the slope by its own merits.