Sticky intuitions and the future of sexual orientation discrimination

UCLA Law Review

Volumn 57, Issue 5, 2010, Pages 1375-1414

  Goldberg, Suzanne B ^a  

^a NONE

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EID: 78650787567     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (308)

1. Bowers v. Hardwick, 478 U.S. 186,194 (1986).
2. SEE, E.G., JOYCE MURDOCH & DEB PRICE, COURTING JUSTICE: GAY MEN AND LESBIANS v. THE SUPREME COURT 334 (2001).
3. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (recognizing mamed couples' privacy right to access and use contraception and declaring the state's restriction on contraception to be "repulsive to the notions of privacy surrounding the marriage relationship");
4. Eisenstadt v. Baird, 405 U.S. 438, 452 (1972) (extending Griswold and holding that the state's purported interest in deterring fornication was not a sufficient interest to justify restricting unmarried individuals' access to birth control).
5. Bower, 478 U.S. at 190.
6. 478 U.S. 186.
7. See, e.g., Lawrence v. Texas, 539 U.S. 558, 559-60 (2003) (invalidating Texas's "homosexual conduct" law);
8. Romer v. Evans, 517 U.S. 620, 621 (1996) (striking down a state constitutional amendment that banned antidiscrimination protections for gay people);
9. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941.969 (Mass. 2003) (recognizing same-sex couples' right to marry).
10. 539 U.S. 558.
11. Id. at 578.
12. 517 U.S. 620.
13. 163 U.S. 537 (1896).
14. Romer, 517 U.S. at 623.
15. See, e.g., In re Marriage. Cases, 183 P.3d 384 (Cal. 2008);
16. Kerrigan v. Comm't of Pub. Health, 957 A.2d 407 (Conn. 2008);
17. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).
18. See, e.g., Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).
19. For additional discussion of Nabozjxy, see infra notes 38-41 and accompanying text.
20. See, e.g., Elisa B. v. Superior Court, 117 P.3d 660,670 (Cal. 2005) (holding that a child may have two mothers under the Uniform Parentage Act and that both can be required, to pay child support);
21. In the Matter of Jacob, 660 N.E.2d 397,398 (N.Y. 1995) (authorizing second-parent adoption of a child parented by two mothers);
22. In re custody of H.S.H.-K., 53.3 N.W.2d 419, 437 (Wis. 1995) (applying an equitable test to recognize parental rights of a lesbian functional parent).
23. See, e.g., Lofton v. Sec'y of Dep't of Children &k. Family Servs. (Lofton I), 358 F.3d 804, 827 (11th Cir. 2004) (sustaining Florida's bar on adoption of children by gay adults);
24. State, v. Limon, 83 P.3d 229, 240 (Kan. Ct. App. 2004) (upholding age-of-consent rules that punished same-sex relationships more severely than different-sex relationships), rev'd, 122 P.3d 22 (Kan. 2005);
25. Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (relying on "[i]ntuition and experience" regarding childrearing to sustain the state's exclusion of same-sex couples from marriage);
26. cf. Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006) (refusing to recognize a marriage right for same-sex couples despite a substantial body of state law rejecting sexual-orientation-based, distinctions).
27. See, e.g., Richard Salas, In re Marriage Cases: The Fundamental Right to Marry and Equal Protection Under the California Constitution and the Effects of Propositiorx 8, 36 HASTINGS CONST. LQ. 545 (2009) (examining California's Proposition 8);
28. Rachel Simmonsen, Judge Tosses Lawsuit Over Gay Club at Okeechobee High, PALM BEACH POST, Apr. 10, 2008, available at http://www.palmbeachpost.com/ treasurecoast/content/tcoast/epaper/2008/04/10/0410ogay.html?cxntlid=inform-sr (discussing school officials' efforts to ban a gay-straight alliance organization at. Okeechobee, FL high school);
29. Adam Pertman, Election Day Robbery, ARKANSAS TIMES, Jan. 15, 2009, available at http:// www.arktimes.com/Articles/ArticleViewer.aspx ?ArticleID=838aea86-83a5-498c-a7d.84ec62f96e303 (reporting on the effects of an Arkansas referendum prohibiting adoption by gay and lesbian prospective parents).
30. The starkest illustration of this point may be California's Proposition 8, which revoked, marriage rights from same-sex couples by popular vote after the California Supreme Court detennined that the denial of marriage rights violated the state constitution. See CAL. CONST, art. I, §7.5 ("Only marriage between a man and a woman is valid or recognized in California.");
31. Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009) (describing the legal context surrounding Proposition 8's passage);
32. cf. In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (invalidating California's exclusion of same-sex couples from marriage based on the state constitution's due process and equal protection guarantees). Similarly, courts have repeatedly rebuffed efforts by universities and school districts to forbid meetings of gay student organizations or gay-straight alliances.
33. See, e.g., Gay Students Org. of the Univ. of N.H. v. Bonner, 509 F.2d 652 (1st. Cir. 1974);
34. Colin ex rel. Colin v. Orange Unified Sch. Dist, 83 F. Supp. 2d. 1135 (C.D. Cal. 2000);
35. Gay-Straight Alliance of Yulee High Sch. v. Sch. Bd., 602 F. Supp. 2d 12.33 (M.D. Fla. 1974).
36. Professional organizations have participated in both public debates and litigation to reinforce that an individual's sexual orientation does not detertnine parenting ability. See, e.g., Brief for Am. Psychological Ass'n et al as Amici Curiae Supporting Plaintiffs-Respondents, Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (No. 86), 2006 WL 1930166;
37. Am. Acad. of Pediatrics, Co-Parent or Second-Parent Adoption by SameSex Parents, 109 PEDIATRICS 339 (2002);
38. see generally Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61 AM. PSYCHOLOGIST 607 (2006).
39. See, e.g., PATRICIA A. CAIN, RAINBOW RIGHTS: THE ROLE OF LAWYERS AND COURTS IN THE LESBIAN AND GAY CIVIL RIGHTS MOVEMENT (2000) (reviewing the trajectory of social change effected by the gay and lesbian rights movement).
40. The discussion here focuses predominantly on lesbians and gay men, rather than bisexuals, because bisexuality has rarely been the express subject of legal regulation. See Kenji Yoshino, The Epistenxic Contract of Bisexual Erasure, 52 STAN. L REV. 353,353 (2000) (analyzing "why the category of bisexuality has been erased in contemporary American political and legal discourse"). Likewise, although several of the intuitions addressed in this Article implicate, the legal status of transgender individuals, there are also significant doctrinal and sociopolitical differences in the legal and social statuses of gay and. transgender people that warrant extended discussion beyond the scope of this Article. Rather than engage in a strained merger of ideas in the face of these differences, I suggest that both the convergences and divergences of intuitions and their influence are ripe for a separate inquiry.
41. Cf. Taylor Flynn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 COLUM. L REV. 392, 392 (2001) (observing that "jurisprudence that adopts more accurate and multifaceted understandings of sex and gender," including jurisprudence particular to transgender individuals, can have a substantial positive impact on the lives of lesbians and gay men).
42. See generally Suzanne B. Goldberg, Constitutiorxal Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 COLUM. L REV. 1955 (2006) (analyzing the ways in which courts reason via facts about social groups while leaving unacknowledged the nonnative underpinnings of their decisions).
43. For discussion of my broad, use of "intuition," see infra note 23 and accompanying text.
44. The discussion here concentrates primarily, though not exclusively, on intuitions related to sexuality and gender. For elaboration of concerns about government action in this arena, see, for example, Melissa Murray, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, 5 STAN. J. C.R. & C.L. 357 (2009) (describing the Proposition 8 campaign to ban marriage for same-sex couples in California as focused on "state, infringement of the rights of the [nongay] polity");
45. Richard Posner, Should There Be Homosexual Marriage! And If So, Who Should Decide!, 95 MICH. L REV. 1578,1585 (1997) (stating, with respect to marriage rights for same-sex couples, that "it is a mistake to suppose that legal reasoning alone can underwrite so profound, a change in public policy").
46. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 947 (3d ed. 1992). More elaborately, scholars describe intuition as "a cognitive process that somehow produces an answer, solution, or idea without the use of a conscious, logically defensible, step-by-step process."
47. KENNETH R. HAMMOND, HUMAN JUDGMENT AND SOCIAL POLICY 60 (1996);
48. cf. Erin Ryan, The Discourse Beneath: Emotional Epistemology in Legal Deliberation and Negotiation, 10 HARV. NEGOT. L REV. 231, 233 (2005) (defining intuition broadly as "the mental manipulation of affective data");
49. R. George Wright, The Role of Intuition in Judicial Decisionrrxaking, 42 HOUS. L REV. 1381, 1385 (2006) (noting that judges frequently rely on intuition in reaching legal conclusions but do not "use the tenn 'intuition' in rigorous, precisely defined senses").
50. Some of the sources for these views can be traced to (a) spiritual beliefs derived from a nonempirical epistemology; (b) beliefs derived from path-dependent endorsement of others' beliefs for affiliational, status, or cultural reasons; and (c) emotionally influenced beliefs reflecting involuntary reactions. Although one might be self-aware of these sources, the beliefs they produce, and the contradictory empirical evidence, the beliefs can remain difficult to dislodge and might, in that sense, be described not only as sticky intuitions but also as stubborn beliefs I am grateful to Terry Maroney for this observation. For Maroney's thoughtful elaboration of the relationship between emotion and common sense within constitutional law, see Terry A. Maroney, Emotional Common Sense as Constitutionol Law, 62 VAND. L. REV. 851 (2009).
51. Cf. Marc R. Poirier, Name Calling: Identifying Stigma in the "Civil Unimx" /"Marriage" Distinction, 41 CONN. L. REV. 1425, 1480-81 (2009) (arguing that the distinction between civil unions and marriages should be understood against the background of antigay bias in the surrounding culture). Related to this is the view that what sustains sexual orientation discrimination is religious belief radier than either bias or the intuitions set out below. On this point, it is certainly true that many who favor legal distinctions based on sexual orientation link their position to their religious views regarding sexuality.
52. Cf. Frederick Mark Gedicks, Atmospheric Harms in Constitutionol Law, 69 MD. L. REV. 149 (2009);
53. see generally Andrew Koppelman, The Decline and Foll of the Case against Some-Sex Marriage, 2 U. ST. THOMAS L.J. 5 (2004). An additional factor associated with religiously based positions derives more from concerns about government infringing on individuals' ability to educate their children and otherwise act in accordance with their religious views.
54. Cf. Answer Brief of Campaign for Cal. Families on the Merits at 23, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999) (arguing that "preserving the definition of marriage is not about preserving a tradition of discrimination or exclusion, but about preserving the relationship upon which the future of society rests");
55. see generally Murray, supra note 22;
56. Marc R. Poirier, Hastening the Kulturkampf: Boy Scouts of America v. Dale and the Politics of American Masculinity, 12 LAW & SEXUALITY 271 (2003). Thus we see, along these lines, strong claims against antidiscrimination laws in employment, housing, and public accommodations, opposition to marriage rights for lesbian and gay couples, and resistance to school curricula that espouse respect for sexual orientation diversity.
57. See infra note 141 and accompanying text.
58. Although this Article does not focus primarily on shaping doctrinal arguments to address the sticky intuitions, it bears noting that the choices among levels of scrutiny or even the quality of rational basis review can make a significant difference to the visibility and force of the intuitions in the intuitionbased cases. Because1 the other types of cases tend to obscure the intuitions, levels of review are somewhat less likely to be consequential in limiting the intuitions' influence on both the analysis and outcomes.
59. See, e.g., Lambda Legal, Docket, http://www.lambdalegal.org/our-work/in- court/cases/ docket.html (last visited June 4, 2010);
60. ACLU, LGBT Discrimination, http://www.aclu.org/lgbtrights/lgbt- discrimination (click the "Cases" tab on "Related. Content" header) (last visited June 4, 2010);
61. National Center for Lesbian Rights, Case Docket, http://www.nclrights. org/site/PageServer? pagename=issue-casedocket (last visited. June 20, 2010).
62. Here, I mean to include rules and policies that do not refer directly to sexual orientation but have the primary consequence of burdening gay people or same-sex couples. I would put most marriage laws into this category, as they do not discriminate explicitly based on sexual orientation, but their reservation of marriage, to different-sex couples has that discriminatory effect.
63. Lofton v. Sec'y of Dep't of Children ¿k Family Servs. [Lofton I), 3.58 F.3d 804, 819-20 (11th Cir. 2004). A new challenge to the law remains pending.
64. See ACLU, In re: Gill-Case Profile, http://www.aclu.org/lgbt-right.s-hiv- aids/re-gill-case-profile (last visited June 4, 2010).
65. FLA. STAT. §63.042(3) (2007) (providing that "[n]o person eligible to adopt under this statute, may adopt if that person is a homosexual").
66. See Lofton v. Sec'y of" Dept. of Children and Family Servs. (Lofton II), 377 F.3d 1275, 1298 (11th Cir. 2004) (Barkett, J., dissenting) (stating that "many children throughout the country are lovingly and successfully cared for by homosexuals in their capacity as biological parents, foster parents, or legal guardians");
67. AM. PSYCHOLOGICAL ASS'N, RESOLUTION ON SEXUAL ORIENTATION, PARENTS, AND CHILDREN (2004) ("There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children.").
68. Lofton I, 358 F.3d at 819-20
69. (quoting Paris Adult. Theater I v. Slaton, 413 U.S. 49, 62-63 (1973)). By way of explanation, the court added that "[a]lthougli social theorists from Plato to Simone de Beauvoir have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model."
70. Id. at 820
71. (citing PLATO, THE REPUBLIC, at Bk. V, 459d-461e (Hackett Publ'g Co. 1992) (380 B.C.);
72. SIMONE DE BEAUVOIR, THE SECOND SEX (H.M. Parshley ed. & trans., Vintage Books 1989) (1949)).
73. Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006). The court added: Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the commonsense premise that children will do best with a mother and father in the home.
74. Id. at 84
75. - See also Andersen v. King County, 138 P.3d 963, 983 (Wash. 2006) (plurality opinion) (sustaining Washington's ban on same-sex couples marrying in part because "children tend to thrive" in a "'traditional' nuclear family") (emphasis added). As Mary Anne Case has observed, the New York high court's acceptance of children's exposure to "living models" of men and women as a rationale for state action is also troubling because it runs contrary to the federal constitutional prohibition on embodying in law any "fixed notions concerning the roles and abilities of males and females."'
76. Mary Anne Case, A Lot to Ask: Review Essay of Martha Nussbaum's From Disgust to Humanity: Sexual Orientation and Constitutional Law, 19 COLUM. J. OF GENDER &. L 89,120(2010)
77. (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).
78. See In re Marriage Cases, 183 P.3d 384, 397-98 (Cal. 2008) (framing the legal question that grew out of the initiative process as whether "our state Constitution prohibits the state, from establishing a statutory scheme... under which the union of an opposite-sex couple is officially designated a 'marriage' whereas the union of a same-sex couple is officially designated a 'domestic partnership"').
79. At the hearing in Perry v. Schwarzenegger, Therese Stewart, Chief Deputy Attorney for the Plaintiff-Intervenor City and County of San Francisco, argued, "it was against this backdrop [of the history of discrimination and the demonization of gay people] that Proposition 8's proponents carefully calibrated their campaign to evoke messages that... gay relationships are inferior, that they are immoral, and that the gay agenda will have dire consequences for non-gay people, and especially for children." Transcript of Record at 47, Perry v. Schwarzenegger, No. C 09-CV-2292 (N.D. Cal. argued Jan. 11, 2010)
80. [hereinafter Perry Transcript of Record], available at http://www.equalriglitsfbundation.org/ wp-coiitent/uploads/2010/Ol/Perry-Vol-1- 1-11-10.pdf;
81. see also Susan Ferriss, Couples Tell of Toll From State Gay Marriage Ban as Prop. 8 Trial Begins, SACRAMENTO BEE, Jan. 12, 2010, at Al, available at http://www.sacbee.com/politics/story/24549.51.html (describing advertisements leading up to the Proposition 8 vote that suggested that marriage for gay couples is an "evil [that] must be stopped").
82. 517 U.S. 620 (1996)..
83. Nabozny v. Podlesny, 92 F.3d 446,454-58 (7th Cir. 1996). The student brought a due process claim as well, which the court dismissed on the ground that the school had no duty under the Due Process Clause to protect him from harms caused by others. Id. at 460.
84. Id. at. 45.5
85. (quoting Weinberger v. Wiesenfeld, 420 U.S. 636,645 (1975)).
86. See id. at 458.
87. "Nabozny introduced sufficient evidence to show that the discriminatory treatment was motivated by the defendants' disapproval of Nabozny's sexual orientation, including statements by the defendants that Nabozny should expect to be harassed because he is gay." Id. at 457. The Sixth Circuit similarly found it "clearly established" that it was impermissible for the state to take a passenger from one car and put her into another, with a drunk driver who ultimately crashed and killed her, "solely for the reason that they disapproved of her perceived, sexual orientation."
88. Stemler v. City of Florence, 123 F.3d 856, 874 (6th Cir. 1997). The question, then, was whether the passenger's estate had alleged sufficient facts to show that the equal protection mandate prohibiting selective law enforcement had been violated in this particular case.
89. Id. The court found that it had.
90. Id.
91. Sterling v. Borough of'Minersville, 232 F.3d 190,196 (3rd. Cir. 2000).
92. See also id. ("We can, therefore, readily conclude that Wayman's sexual orientation was an intimate aspect of his personality entitled to privacy protection.").
93. Id.
94. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,82 (1998) (holding that federal law prohibiting sex discrimination reahes same-sex sexual harassment).
95. See id. at 81 ("Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted. 'discrimina[tion]... because of... sex."').
96. See, e.g., Rene v. MGM Grand. Hotel, Inc., 305 F.3d 1061, 1068 (9th Cir. 2002) (en banc) (opining that the "physical assault of a sexual nature" by coworkers against an openly gay man amounted to a "fairly straightforward" sexual harassment case);
97. Nichols v. Azteca Rest. Enters., 256 F.3d 864,874-75 (9th Cir. 2001) (holding that doctrine barring sex stereotyping "squarely precludes" harassment for failure to confbnn to sex stereotypes).
98. See Under 21 v. City of New York, 482 N.E.2d 1, 2 (N.Y. 1985).
99. Id. at 4 (stating that "the sole issue we address is the extent of the authority in this area of the chief executive, officer of the city, the Mayor, and specifically, whether the executive may forbid discrimination by city contractors on a ground not covered by any legislative enactment").
100. See Presbytery of'N.J. v. Whitman, 99 F.3d 101 (3d. Cir. 1996).
101. Id. at 103-04.
102. The court also discussed the Pullman abstention doctrine at some length in connection with the plaintiffs' as-applied challenge. Id. at 106-07
103. (citing R.R. Comm'n v. Pullman, 312 U.S. 496(1941)).
104. Id. at. 105-06.
105. Lockyer v. City and County of San Francisco, 95 P.3d 459, 462 (Cal. 2004);
106. see also Liv. State, 110 P.3d 91,101 (Or. 2005) (rejecting county issuance of marriage licenses to same-sex couples as ultra vires).
107. Hollingsworth v. Perry, 130 S. Ct. 705, 706 (2010) (per curiam).
108. See Jones v. Hallahan, 501 S.W.2d 588,589 (Ky. Q. App. 1973). The court added: "It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Court Clerk of Jefferson County to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined."
109. Id.
110. Compare, e.g., Alison D. v. Virginia M., 77 N.Y.2d 651,655 (1991) (holding that "although petitioner apparently nurtured a close and loving relationship with the child, she is not a parent within the meaning of [the statute]")
111. and Jones v. Barlow, 154 P.3d 808,810 (Utah 2007) (refusing to grant parental status to a lesbian coparent),
112. with, e.g., V.C. v. M.J.B., 748 A.2d 5.39, 554 (N.J. 2000) (according parental status to a functional lesbian parent)
113. and In re Custody of H.S.H.-K., 533 N.W.2d 419, 437 (Wis. 1995) (same).
114. MARY DOUGLAS, PURITY AND DANGER: AN ANALYSIS OF CONCEPTS OF POLLUTION AND TABOO (2003).
115. Id. at 169. Reinforcing Douglas's observations by reference to research in psychology and neurosc.ience, psychologist Jonathan Haidt, working with colleagues, has explained the move from concerns with purity and pollution to social norms and moral intuitions by reference to a "purity module" in the brain: [C]ulturally widespread concerns with purity and pollution can be traced to a purity module evolved to deal with the adaptive challenges of life in a world full of dangerous microbes and parasites.... Such things, and people who come into contact with them, trigger a fast, automatic feeling of disgust. Over time, this purity module and its affective output have been elaborated by many cultures into sets of rules, sometimes quite elaborate, regulating a great many bodily functions and practices....Once norms were in place for such practices, violations of those norms produced negative affective flashes, that is, moral intuitions.
116. Jonathan Haidt & Craig Joseph, Intuitive Ethics: How Innately Prepared Intuitions Generate Culturally Variable Virtues, 13.3 DAEDALUS 55,60 (2004).
117. MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 113 (2004). Continuing the point, Nussbaum wrote: What inspires disgust is typically the male thought of the male homosexual, imagined as anally penetrable. The idea of semen and feces mixing together inside the body of a male is one of the most disgusting ideas imaginable-to males, for whom the idea of nonpenetrability is a sacred boundary against stickiness, ooze, and death.... Thus disgust is ultimately disgust at one's own imagined penetrability and ooziness, and this is why the male homosexual is both regarded with disgust and viewed with fear as a predator who might make everyone, else disgusting.
118. Id.
119. By contrast, Nussbaum wrote that "[flemale homosexuals may be objects of fear, or moral indignation, or generalized anxiety, but they are less often objects of disgust." Id. As discussed Infra, even assuming Professor Nussbaum is correct in her differentiation of attitudes toward lesbians and gay men, a point on which I generally agree, the differentiation does not eliminate the force of other intuitions related to lesbians, as well as to lesbians and gay men collectively, in reinforcing regulations that burden gay people. On this point, see also Case, supra note 34, at 119 (stating, in connection with a review of Nussbaum's newest book on the subject,
120. FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION AND CONSTITUTIONAL LAW (2010), that "all opposition to gay rights cannot, be reduced to disgust").
121. Jonathan Haidt et al., Body, Psyche, and Culture: The Relationship Between Disgust and Morality, 9 PSYCHOL. & DEVELOPING SOCIETIES 107,113-1.5 (1997) (claiming that "most human societies place taboo on many of the possible pairings of partners (and... sexual acts)" to establish a concrete delineation between human and animal).
122. William N. Eskridge, Jr., Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion, 57 U. FLA. L REV. 1011,1023 (2005). Elaborating the contours of this disgust in ways similar to Nussbaum, Eskridge drew on the psychological literature just, discussed, and. reviewed its application to sexuality generally and to anal sex in particular. Almost anything related to sex is disgusting to some people; some sexual practices are disgusting to almost all people; and almost all people feel their disgust intensely. Although most people engage in oral sex, and many in anal sex, a lot of Americans find these activities disgusting. ... Because male homosexuality (and, quite irrationally, female homosexuality as well) is deeply associated with anal sex, it has long been disgusting to Americans. And their disgust-driven view that homosexual sex is immoral has persisted (even if at reduced levels) as the majority view during the twentieth century. Id. (footnote, omitted). Notably, Eskridge also identified, the social group associated with the despised, sexual relations ("disgusting homosexual sodomites") as the targets of this jurisprudential disgust.
123. Id. at 1013;
124. see also Richard E. Redding, It's Really About Sex: Some-Sex Marriage, Lesbigay Parenting, and the Psychology of Disgust, 15 DUKE J. GENDER. L dk POL'Y 127, 186 (2008) ("[B]ecause they find, it disgusting, many people will reject homosexuality and will not want children to be 'contaminated' by lesbigay parents."). I will return to "disgusting" actors, as distinguished, from "disgusting" acts, in Part ILG infra.
125. 478 U.S. 186(1986).
126. See Eskridge, supra note 61; see olso Redding, supra note 61, at 187 ("Gay anal sex may be an especially strong source of disgust because bodily contact with fecal material, in particular, gives rise to disgust.... 'Homophobic disgust' may then involve concerns about bodily products, such as blood, and semen, and their potential for disease consequence."
127. (quoting Bunmi O. Olatunji & Craig N. Sawchuk, Disgust: Characteristic Features, Social Manifestations, and Clinical Implications, 24 J. SOC. & CLINICAL PSYCHOL. 932,946 (2005))).
128. See Marc. R. Poirier, Some-Sex Marriage, Identity Processes, and the Kulturkampf: Why Federalism Is Not the Main Event, 17 TEMP. POL. & . C.R. L. REV. 387,414 (2008) (discussing "the dimensions of pollution claims, including moral and spiritual pollution as well as physical pollution");
129. Redding, supra note 61, passim. In addition, although Nussbaum has made, an extended case for the elimination of disgust-based arguments from the set of permissible reasons for public persuasion, these arguments continue, to be made and to exert a powerful effect in public discourse and decisionmaking.
130. See Andrew Sullivan, Proving Arximus, ATLANTIC, Jan. 14, 2010, http://andrewsullivan.theatlantic.com/the- daily-disli/2010/01/proving-animus. html.
131. Redding, supra note 61, at 192-93.
132. JONATHAN KATZ, THE INVENTION OF HETEROSEXUALITY 74 (1995) (summarizing Freud's assertion that "[a flully developed heterosexual is the standard against which the homosexual is always judged and found fixated").
133. See, e.g., Padula v. Webster, 822 F.2d 97, 103 (DC Cir. 1987) (characterizing sodomy as "the conduct, that defines the class" of gay people).
134. For example, during an executive session discussing repeal of legislation granting marriage to same-sex couples in New Hampshire, State. Rep. Nancy Elliot, made several antigay statements about anal sex, likening it. to 'Wiggling... in excrement" and stating that "[t]hey" are "teaching [anal sex to fifth graders] in the public school." Nancy Elliott, Anti-Gay Lawmaker, Describes And Sex During Public Hearing: 'Wriggling' Around 'In Excrement', HUFFINGTON POST, Feb. 12, 2010, http://www.huffingf.on post.com/2010/02/12/nancy-elliott-anti-gay-ne-ii-460.544.html;
135. cf. James Allon Garland, Breaking the Enigma Code: Why the Law Has Failed to Recognize Sex as Expressive Conduct Under the First Amendment, and Why Sex Between Men Proves That It ShoiM, 12 LAW & SEXUALITY 159, 253-54 (2003) (arguing that "the popularity of the phrase 'the love that dares not speak, its name' as a reference for homosexuality is just one measure of how even sexual minorities have been profoundly taught not to be comfortable verbally articulating manifestations of same-sex desire").
136. I distinguish this from insecurity about gender roles and norms, which I discuss infra Part II.G. 70. Cf. Robb Willer, Overdoing Gender: A Test of the Masculine Overcompensation Thesis 1 (unpublished paper presented at the Annual Meeting of the Am. Sociological Ass'n, 2005), available at http://willer. berkeley.ed.u/WillerOverdoingGend.er.pdf (reporting on a study in which "men given feedback, threatening their masculinity ... expressed more negative attitudes towards homosexuals").
137. Again, as noted in the previous discussion, many people, gay and nongay alike, engage in the acts of oral and anal sex that provoke disgust emotions. In the public's mind, however, anal sex, in particular, is most typically associated with gay men. See supra notes 59-63 and. accompanying text.
138. Lisa Gelhaus, Gay-Bashing Victims Overcome Prejudice to Win Civil Settlements, IRIAL MAG., Feb. 1,1999, at. 14,17 (quoting bias crimes expert Brian Levin).
139. See Kara S. Suffredini, Pride anil Prejudice: The Homosexual Panic Defense, 21 B.C. THIRD WORLD L.J. 279, 287 (2001). Suffredini added that the gay panic defense "has proven successful even when the victim's triggering action was as slight 'as a nonviolent verbal or gestural solicitation."'
140. Id. at 287-88
141. (quoting Robert G. Bagnall et al., Comment, Burdens on Gay Litigants and Bias in the Court System: Homosexual Panic, Child Custody, and Anonymous Parties, 19 HARV. C.R.-C.L L REV. 497,499 (1984)).
142. Id. at 287.
143. Id. at 288.
144. To be clear, not every political actor outed in these efforts was insecure about his sexual orientation. (I use "his" advisedly; most outing of elected officials has focused on men. In the media and entertainment worlds, women as well as men have been the target, of outing campaigns.) For some of those outed, the insecurity was less about their own sexual orientation and more related to efforts to avoid public disapproval for being gay. See generally LARRY GROSS, CONTESTED CLOSETS: THE POLITICS AND ETHICS OF OUTING (1993);
145. WARREN JOHANSSON dk WILLIAM A. PERCY, OUTING: SHATTERING THE CONSPIRACY OF SILENCE (1994).
146. For one of the foundational analyses and defenses of outing, see MICHELANGELO SlGNORILE, QUEER. IN AMERICA: SEX, THE MEDIA, AND THE CLOSETS OF POWER (1993).
147. The National Association of Research and Treatment of Homosexuality (NARTH), an organization that condones treatment to alter "unwanted homosexual attraction," alleges that the simple act of "teach[ing] our children that homosexuality is as normal and healthy as heterosexuality" may have devastating consequences: Scientific research supports age-old cultural norms that homosexuality is not a healthy, natural alternative to heterosexuality... It does far more harm than good to tell a teenager that his or her attractions toward members of the same sex are normal and desirable. Teens in this position need understanding and counseling, not a push in the direction of a potentially deadly lifestyle. National Association for Research & Therapy of Homosexuality, The Three Myths About. Homosexuality, Feb. 27, 2008, http://www.narth.com/me.nus/mytlis.html.
148. See, e.g., Maggie Gallagher, What Is Marriage Forl The Public Purposes of Marriage Law, 62 LA. L. REV. 773, 791 (2002) (claiming that the "larger purpose of marriage is to encourage the behavior that gives fathers to children and male support to mothers" and that the legal recognition of same-sex couples' marriages will undermine these important social needs).
149. See Transcript, of Record, at 387, Evans v. Romer, Civ. A. No. 92 CV 7223,1993 WL 518586 (D. Colo. Dec. 14, 1993) (testimony of Dr. Judd Marmor) (discussing sexual orientation insecurity as a source of antigay bias).
150. See David L Chambers & Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 FAM. L.Q. 523, 535 (1999) ("During the late 1970s, the first mental health research on the well-being of children raised by lesbian mothers was published. Using expert witnesses, advocates were in a better position to dispel recurring myths about lesbians as mothers-[including] that children raised by lesbian mothers would probably become, gay or lesbian, would be confused about their gender identity, would be socially stigmatized, or would suffer other psychological harm."
151. (citing Donna Hitchens & Barbara Price, Trial Strategy in Lesbian Mother Custody Cases: The Use of Expert Testimony, 9 GOLDEN GATEU. L. REV. 451 (1978))).
152. See, e.g., PAUL CAMERON, FAMILY RESEARCH INST., HOMOSEXUALITY AND CHILD MOLESTATION, avdlable at http://www.familyresearchii-t.org/2009/02/child- molestation-andhomosexuality-2 (2009) (arguing that "the gay movement is forthright about seeking to legitimize child-adult homosexual sex" and that "there is a strong, disproportionate association between child molestation and homosexuality");
153. see also DEB PRICE & JOYCE MURDOCH, COURTING JUSTICE: GAY MEN AND LESBIANS v. THE SUPREME COURT 202 (2001) (quoting Anita Bryant's Save Our Children campaign's warning that "[t]he recruitment of our children is absolutely necessary for the survival and growth of homosexuality. Since homosexuals cannot reproduce, they must, recruit, must freshen their ranks");
154. cf. Gregory Herek, Paul Cameron Bio and Fact Sheet, http://psychology. ucdavis.edu/rainbow/ html/facts-cameron-sheet.ht.ml (last visited June 4, 2010) (reporting that the American Psychological Association, the American Sociological Association, and other professional organizations have formally disassociated themselves from Cameron because of his misrepresentation of sexuality-related research).
155. See Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (considering the Boy Scouts' ban on openly gay adult leaders);
156. Lofton v. Sec'y of Dep't of Children & Family Servs. (Lofton II), 377 FJd 1275, 1276 (11th Cir. 2004) (evaluating Florida's ban on adoption by lesbian and gay prospective parents).
157. 517 U.S. 620 (1996).
158. LISA KEEN & SUZANNE B. GOLDBERG, STRANGERS TO THE LAW: GAY PEOPLE ON TRIAL 60 (1998).
159. Perry Transcript of Record, supra note 36, at 1926, available at http://www.equalrightsfoundation .org/ wp-content/uploads/2010/Ol/Perry-Vol-8-1- 21-10.pdf (direct examination of Defendant-Intervenor Dr. Hak-Shing William Tarn).
160. Id.
161. Offences Against, the Person Act, 1861, 24 & 25 Vict., c. 100, §61 (Eng.) (providing that the crime of "buggery" receive a sentence of at least ten years).
162. LORD PATRICK DEVLIN, THE ENFORCEMENT OF MORALS, at vi-vii (1965).
163. Intuitions regarding the causal relationship between nondiscriminatory acceptance of homosexuality and the decline of civilization have been expressly aftinned outside the United States as well. In Uganda, for example, a conflict has roiled regarding a proposed measure that would impose severe criminal penalties, including the death penalty, on individuals found to be. gay and those who have engaged in sexual relations with a same-sex partner. The proposed bill is widely regarded as supporting expansive violence against lesbians and gay men because, it imposes criminal penalties on those who do not report their knowledge of "homosexual activity" within twenty-four hours. Much of the advocacy in favor of the bill has focused on the dangers that homosexuality presents to Ugandan society. See Zoe Alsop, Uganda's Anti-Gay Bill: Inspired by the U.S., TIME, Dec. 10, 2009, at 1, available at http:// www.time.com/time/ world/article/0,8599,1946645,00.html.
164. For earlier, related concerns in the context of the threat to civilization posed by bigamy, see, for example, Reynolds v. Sims, 98 U.S. 145,166 (1878) (advocating that limitation of marriage to two-person couples is necessary to maintain a nondespotic state).
165. See Genesis 19:1-29. I will not join the debate among religious scholars regarding what actually happened in Sodom and Gomorrah, where some have argued that the problems were not so much about sexual relations as about hostility between neighbors. For purposes here, the more important point is that regardless of interpretive accuracy, the story of the two cities is widely seen among a broad segment of American society as a biblical rebuke of homosexuality.
166. See, e.g., JIM. NELSON BLACK, WHEN NATIONS DIE (1994).
167. On the Christian television program the "700 Club," Robertson said: "Sodomy-in all history, as far as I can tell, any nation that embraces this so-called, 'lifestyle' and legalizes it celebrates it, protects it is on the ash can of history. Every single one has gone into decline. There's not one that survived since this happens." 700 Club (Christian Broadcasting Network broadcast June. 1.6, 2008). Robertson expressed similar views after Maine legalized marriage for same-sex couples in 2009: [I]f we take biblical standards away in homosexuality, what about... bestiality and ultimately what about child molestation and pedophilia? How can we criminalize these things and at the same time have constitutional amendments allowing same-sex maniage among homosexuals. You mark my words, this is just the beginning in a long downward slide in relation to all the tilings that we consider to be abhorrent. Pot Robertson Suggests "Ulltimote Conclusion" of Legal Same-Sex Marriage Is Legal Polygamy, Bestiality, Child Molestation, Pedophilia (Christian Broadcasting Network television broadcast May 7, 2009), available at http://mediamatters.org/mmtv/20090.5070024.
168. See, e.g., Claire Shipman & Devin Dwyer, White House Adviser Valerie Jarren 'Speechless' Over Pat Robertson's Haiti Comment, ABCNEWS.COM, Jan. 14, 2010, http://abcnews.go.com/GMA/ HaitiEarthquake/white-house-advisor-valerie- jarrett-speechless-pat-robertson/story?id=9555714.
169. INST, FOR AM. VALUES & INST, FOR MARRIAGE & PUB. POUCY, MARRIAGE AND THE LAW: A STATEMENT OF PRINCIPLES 11 (2006), available at http://www.marriage.debate.com/pdf/ imapp.mlawst.mnt.pdf.
170. See generally John M. Finnis, Law, Morality, and "Sexual Orientation", 69 NOTRE DAME L. REV. 1049 (1994).
171. See generally STEPHANIE COONTZ, THE WAY WE NEVER WERE: AMERICAN FAMILIES AND THE NOSTALGIA TRAP ( 1992) (advancing a critical analysis of myths about American family lite).
172. See, for example, the Alliance Defense Fund's statement regarding the protection of family values: "The family is the most basic unit of any society or nation. Without healthy, functioning families, a culture cannot survive." Alliance Defense Fund, Protecting Family Values, http://www. alliancedetensefund.org/issues/tradit.ionalfamily/Default.aspx (last visited June 20, 2010).
173. EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 259 (J.C.D. Clark ed., Stanford Univ. Press 2001) (1790).
174. Zablocki v. Redhail, 434 U.S. 374, 384 (1978)
175. (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)).
176. See also Griswold v. Connecticut, 381 US. 479, 496 (196.5) (Goldberg, J., concurring) (describing "the traditional relation of the family" as "a relation as old and as fundamental as our entire civilization");
177. Skinner v. Oklahoma ex rel. Williamson, 316U.S. 535, 541 (1942) (describing marriage, and procreation as "fundamental to the very existence and survival of the race").
178. See, e.g., Brief of the Professors of the History of Marriage, Families, and the Law, Lewis v. Harris, 908 A.2d 196 (N.J. 2006) (No. A-2244-03T5);
179. Suzanne B. Goldberg, A Historical Guide to the Future of Marriage for Same-Sex Couples, 15 COLUM. J. GENDER, & L. 249, 254-72 (2006) (presenting the historians' amicus brief in the New York, marriage litigation);
180. see also Perry Transcript, of Record, supra note 36, at 220-52, available at http://www.equalrightsfoundation.org/wp-conte.nt/uploads/2010/01/ 2010-01-12-Perry-Trial-Day-02-Cot.t-direct-cross-redirect-Chauncey-direct-cross- mini.pdf (direct examination of Nancy Cott, testifying that marriage is constantly evolving and lias changed from an institution that, once embraced racial and national origin restrictions, and "restrictions on American women's citizenship rights");
181. id. at 440 (direct examination of George Chauncey, testifying that the "Reverend. Jerry Falwell himself preached, a sennon in 1958 criticizing the Supreme Court's Broiwi v. Board of Educatiaix decision as going against God's will and warning, actually, that it could lead, to interracial marriage ....").
182. See, e.g., Stephanie Coontz, Op-Ed, Taking Marriage Private, N.Y. TIMES, Nov. 26, 2007, at A23, available at http://www.nytimes.eom/2007/11/26/opinion/ 26coontz.html?-r=lčkemckex=119622 6000&en=5e70532fce256fe0&kei= 5087%0A.
183. See, e.g., Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006) (embracing the different-sex mamage rule as "the definition that has reigned for centuries");
184. id. ("We cannot, escape the reality that the shared societal meaning of marriage-passed down through the common law into our statutory law-lias always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin.");
185. see also Lofton v. Sec'y of Dept. of Children & Family Servs., 3.58 FJd 804, 820 (Lofton I) (11th Cir. 2004) (invoking "the accumulated wisdom of several millennia of human experience.");
186. Brief of Defendant-Appellees with Appendix at 54, Kerrigan v. Connecticut, 9.57 A.2d 407 (Conn. 2008) (No. 17716) (arguing that "[i]t is entirely rational for the legislature to retain the term 'marriage' to describe the union of one man and one woman because that is the definition of marriage that has always existed, in Connecticut throughout its history");
187. cf. Bowers v. Hardwick, 487 U.S. 186, 197 (1986) (Burger, C.J., concurring) ('To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast, aside millennia of moral teaching.").
188. Underlying this intuition is the assumption that, monogamy is preferable to nonmonogamy. Although there have been many challenges to the desirability of monogamy, it remains the case that most people, when asked, indicate that they
189. For arguments against the normative preference for monogamy, see, for example, Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Pdyamorous Existence, 29 N.Y.U REV. L. & Soc. CHANGE 277 (2004);
190. Katherine M. Franke, Theorizing Yes: An Essoy on Feminism, Law, and Desire, 101 COLUM. L. REV. 181 (2001).
191. See generally Roy F. Baumeister, Kathleen R. Catanese, & Kadileen D. Vohs, Is There a Gender Difference in Strength of Sex Drive? Theoretical Views, Conceptual Distinctions, and a Review of Relevant Evidence, 5 PERSONALITY AND SOC. PSYCHOL REV. 242 (2001);
192. Dorothy Einon, Are Men More Promiscuous Than Women?, 15 ETHOLOGY & SOCIOBIOLOGY 131 (1994).
193. See Suzanne Goldberg, Goy Rights Through the Looking Glass: Politics, Morality, and the Trial of Amendment 2, 21 FORDHAM URB. LJ. 1057, 1078 (1994) (citing testimony of Robert Knight, Director of Cultural Research Studies at the Family Research Council).
194. See, e.g., Gallagher, supra note 78, at 790-91 ("When the law assumes and promulgates the idea that either mothers or fathers are dispensable, and that marriage is an essentially private matter whose form is determined by private adult desires, marriage in general, and children in particular, will inevitably suffer."). In a thought, experiment, about society without marriage, Elizabeth Scott, has explored, the question whether expectations of fidelity in relationships would be. as strong within civil unions as within marriage.
195. See Elizabeth S. Scott, A World Without Marriage, 41 FAM. LQ. 537, 563-64 (2007).
196. The U.S. Supreme Court articulated this concern forcefully when addressing the permissibility of polygamy, describing monogamous mamage as the foundation for civilized, society. Reynolds v. United States, 98 U.S. 145, 165-66 (1878) ("Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required, to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests."). Invoking Professor Francis Lieber's commentary, the Court added, that "polygamy leads to the patriarchal principle, and which, when applied, to large communities, fetters the people in stationary despotism, while that, principle cannot, long exist in connection with monogamy."
197. Id. at 166.
198. Professor Lieber expressed this idea within the. debate regarding Utah's statehood. See, e.g., Francis Lieber, The Mormons: Shall Utah Be Admitted Into the Union?, 5 PUTNAM'S MONTHLY 22.5, 234 (1855).
199. ProtectMarriage.com, It's Already Happened, http://www.prot.ectmarriage. eom/video/view/5 (last visited. June 4, 2010) (arguing that legalizing marriage for same-sex couples in California would undermine parents' rights to protect their children from certain tbnns of information).
200. For additional discussion of advertising in the Proposition 8 campaign related to children and families, see generally Murray, supra note 22.
201. See Eskridge, supra note 61, at 1015-18 (providing a detailed description of Bryant's successful repeal effort).
202. See, e.g., Gay-Straight Alliance of Okeechobee High Sch. v. Sch. Bd., 483 F. Supp. 2d. 1224, 1229 (S.D. Fla 2007) (evaluating a school district's decision to prohibit, the formation of a student group aimed at "provid[ing] a sate, supportive environment for students and to promote tolerance and acceptance of one another, regardless of sexual orientation").
203. See Kelli Gauthier, Schools Face Issue of Gay Prom Dates, CHATTANOOGA TIMES FREE PRESS, Apr. 25, 2009, available at http://www.tiinesfreepress.com/ news/2009/apr/25/schools-face-issue-gay-promdates/ (discussing controversy over same-sex dates at school proms);
204. cf. Fricke v. Lynch, 491 F. Supp. 381, 387 (D.R.I. 1980) (rejecting argument of school principal that a student's bringing a same-sex date to the school prom would cause serious disruption and harm).
205. The Kansas Court of Appeals raised a related concern in connection with the prosecution of an eighteen-year-old for engaging in consensual oral sex with a fourteen-year-old where the defendant was sentenced, to 206 months rather than six months imprisonment because his sexual partner was a teenage, boy rather than a teenage girl. State v. Limon, 83 P.3d 229, 232, 236, 239-40 (Kan. Ct. App. 2004), rev'd, 122 P.3d 22 (Kan. 2005). The court, wrote: [T]raditional sexual mores have played a significant role in the sexual development of children. During early adolescence, children are in the process of trying to figure out who they are. A part of that process is learning and developing their sexual identity. As a result, the legislature could well have concluded that homosexual sodomy between children and young adults could disturb the traditional sexual development of children.
206. Id. at. 236. A somewhat similar role-modeling intuition led a youth organization to fire an adult leader who became pregnant out of wedlock on the theory that the leader would, make the youth members more susceptible to becoming pregnant out of wedlock as well.
207. See Chambers v. Omaha Girls Club, 840 R.2d 583 (8th Cir. 1988).
208. Another possible intuition is that, hostile messages from the surrounding environment will not reshape an individual's sexual orientation but might deter a gay person from identifying as gay or entering into a same-sex partnership.
209. See, e.g., Charles W. Socarides, How America Went Gay, AMERICA, Nov. 18, 1995, at 20-22 (challenging the idea that homosexuality is innate);
210. see also National Association for the Research 6k Therapy of Homosexuality, http://www.narth.com ( last visited June. 4, 2010);
211. Parents and Friends of ExGays & Gays, http://pfox.org (last visited. June 4, 2010).
212. See, e.g., Parker v. Hurley, 514 FJd 87, 100-01 (1st Cir. 2008) (noting, in the context of parents' lawsuit challenging curriculum materials aimed to encourage acceptance of gay people, that the impressionability of young children is a relevant factor);
213. Dean v. District of Columbia, 653 A.2d 307, 353 (D.C Cir. 1995) (describing some studies that "suggest the possibility that public policies which can be seen as positively endorsing homosexuality, in contrast with policies more, clearly limited, simply to forbidding discrimination against, homosexuals, may have some bearing on how free an impressionable youth may feel to engage in homosexual experiences, if not to assume that orientation").
214. Along these lines, many adults, including those who oppose sexual orientation discrimination, would prefer for their children to be heterosexual, on the view that, apart from moral or religious concerns, it is easier to live as a straight, person than as a gay person. While there are particular challenges associated with being a member of any minority group, including one targeted for disapproval and hostility, as gay people often are, this sense, that being heterosexual equates with a better life is little more than an intuition as well. Indeed, the mainstream view of researchers is that sexual orientation is not a predictor of either happiness or mental health.
215. See Gregory M. Herek & Linda D. Gamets, Sexual Orientation and Mental Health, 3 ANN. REV. OF CLINICAL PSYCHOL. 353, 353-75 (2007) (examining recent empirical research on the mental well-being of gays and lesbians). Efforts to change an individual's sexual orientation from gay or bisexual to heterosexual, by contrast, have largely been associated with negative mental health outcomes.
216. See AM. PSYCHIATRIC ASS'N, THERAPIES FOCUSED ON ATTEMPTS TO CHANGE SEXUAL ORIENTATION (2000), available at http://www.psych.org/Departments/ EDU/Library/APAOfficialDocumentsandRelated/PositionStatements/200001a.aspx (reaffirming the Association's view that, "homosexuality per se is not a diagnosable mental disorder," arguing that techniques that purport to be able to change an individual's sexual orientation "are often guided not by rigorous scientific or psychiatric research," and cautioning that, "anecdotal reports of 'cures' [for homosexuality] are counterbalanced by anecdotal claims of psychological harm").
217. See KEEN & GOLDBERG, supra note 84, at 26;
218. Brief of Amicus Curiae Am. Psychological Ass'n in Support of" Respondent, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699), 2000 WL339884.
219. State v. Limon, 83 P.3d 229, 237 (Kan. Ct. App. 2004),
220. rev'd, 122 P.3d 22 (Kan. 2005).
221. See Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
222. See, e.g., Heller v. Edgewater Country Club, 195 F. Supp. 2d 1212, 1224, 1227 (D. Or. 2002) (finding sex discrimination when an employer fired a lesbian employee because she was involved in an intimate relationship with a woman, and the tennination would not have taken place had the employee been involved with a man).
223. See, e.g., Lesbian Teen Sues to Force School to Hold Prom, WASH. TIMES, Mar. 12, 2010, available at http://www.washingtontimes.com/news/2010/inar/12/ lesbian-teen-sues-forc.e-school-holdprom/?page=2 (describing school regulations forbidding students from bringing same-sex dates and forbidding girls from wearing tuxedos);
224. Sheila Byrd, Ceara Sturgis, Lesbian High School Student, Told She Can't Wear Tuxedo in Yearbook, HUFFINGTON POST, Oct.. 15, 2009, http://www. huffingtonpost.com/ 2009/10/16/ceara-sturgLs-lesbian-hig-n-323968.html (reporting on an openly lesbian high school student who was prohibited from wearing a tuxedo in her school's yearbook).
225. See Mary Anne C. Case, Disaggregating Gender From Sex and Sexual Orientation: The Effenxinate Man in the Law and Feminist Jurisprudence, 105 YALE LJ. 1, 26-27 (1995) (arguing that, "[t]omboys are far more acceptable and unproblematic today than are sissies, who, it is still feared, are at a high risk of growing up to be homosexual or transsexual and for whom clinical treatment, is more often prescribed. This is further evidence of the disproportionate pull of gender-masculinity in a girl is approved while femininity in a boy is not only troublesome, but a marker for homosexual orientation") (footnotes omitted). Courts are increasingly, though not uniformly, protecting transgender individuals from discrimination when the court has a sense that the new gender is fixed.
226. See Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C 2009) (holding that "in refusing to hire [a transgender woman] because her appearance and background did. not comport with the decisionmaker's sex stereotypes about how men and women should act and appear... [the employer] violated Title VIFs prohibition on sex discrimination").
227. But see Etsitty v. Utah Transit Auth., 502 F.3d 121.5 (10th Cir. 2007) (rejecting discrimination claim brought by transgender bus driver). Courts are also increasingly protecting effeminate men from sex discrimination);
228. cf. Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 875 (2001) (holding that a valid sex discrimination claim existed because the verbal abuse at issue occurred, because of the plaintiffs "effeminate appearance").
229. Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006).
230. Lofton v. Sec'y of Dept. of Children & Family Servs. (Lofton I), 358 F.3dd 804, 818 (11th Cir. 2004).
231. See supra note. 34 and accompanying text (discussing invocations of intuition to sustain bans on marriage and adoption by gay people).
232. See ProtectMarriage.com, supra note 108.
233. This is not to say that all intuitions are empirically untestable; some surely are.
234. See Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 737 (1964) ("[T]he fact, that a challenged, legislative apportionment plan was approved, by the electorate is without federal constitutional significance, if the scheme adopted fails to satisfy the basic requirements of the Equal Protection Qause.").
235. See generally Goldberg, supra note 20 (analyzing the gap between empirical evidence about, social groups and the justifications for legal regulation of those, groups).
236. Richard A. Posner, The Role of axe Judge in the Twenty-First Century, 86 B.U.L L. REV. 1049, 1064 (2006) (citations omitted);
237. cf. Richard Epstein, Intuition, Custom, and Protocol: How to Make Sound Decisions With limited Knowledge, 2 N.Y.U. J.L. & LBERTY 1, 12 (2006) ("[I]ntuition ends up as a guide, through this moral thicket, useful but limited. And in modem thought it is more likely to be displaced as two features come together: first, as the factual patterns in particular cases move further away from those that generated our bedrock intuitions, and second, as we develop more powerful functional theories. The point here is not unfamiliar-intuitions yield to protocols in many areas of lite.").
238. Posner, supra note 130, at 1.064;
239. see also RICHARD A. POSNER, HOW JUDGES THINK lu11 (2008).
240. See, e.g., Jonathan J. Koehler & Daniel N. Shaviro, Veridical Verdicts: Increasing Verdict Accuracy Through the Use of Overtly Probabilistic Evidence and Methods, 75 CORNELL L REV. 247, 271-72 ( 1990) (highlighting literature from fields outside law that suggest "the superiority of probabilistic, methods" of reasoning). Others have identified, similar challenges and perils associated with reliance on intuition in medicine. Citing a widely read medical writer's observation that, '"[c]ogent medical judgments meld, first impressions-gestalt-with deliberate analysis,"' they argue that the same, balance, between intuition and more rigorous forms of analysis should carry over to law.
241. Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L REV. 1, 43 (2007) ("Like cogent, medical judgments, cogent legal judgments call for deliberation. Justice depends on it."). Cass Sunstein has made similar observations with respect to judicial reliance on heuristics more generally, which he describes as "quite valuable" in general, but also as leading, in some cases, '"to severe and systematic errors."
242. ' Cass R. Sunstein, Howirdous Heuristics, 70 U. CHI. L REV. 751, 751 (2003) (citation omitted).
243. Guthrie et al., supra note 132, at 31.
244. ROGER FRANTZ, TWO MINDS: INTUITION AND ANALYSIS IN THE HISTORY OF ECONOMIC THOUGHT 44 (2005) (describing Mill's reaction to the role of intuition in public, discourse and decisionmaking).
245. Jonathan Haidt & Fredrik Bjorklund, Social Intuitionists Answer Six Questions About Moral Psychology, in 2 MORAL PSYCHOLOGY: THE COGNITIVE SCIENCE OF MORAL INTUITION AND DIVERSITY 181, 194 (Walter Sinnott-Armstrong ed., 2008)
246. (quoting MATT RIDLEY, NATURE VIA NURTURE 39 (2004)).
247. Guthrie et al., supra note 132, at 5.
248. Wright, supra note 23, at 1406;
249. see also id. at 1384 (arguing that "intuition is invariably central-whether overtly so or not-to the process of arriving at a judicial outcome by any standard, recognized means").
250. The U.S. Supreme Court has not issued, a definitive pronouncement on the level of scrutiny appropriate tor government action restricting the rights of gay people, although it indicated in Romer v. Evans that, it was applying rational basis review to Colorado's gay-specific amendment.
251. See Romer v. Evans, 517 U.S. 620, 631-32 (1996). It did not commit explicitly to a level of scrutiny in Laurence v. Texas, and the form of review applied, in that case has been the subject, of much debate.
252. See Lawrence v. Texas, 539 U.S. 558, 579-80 (2003) (O'Connor, J., concurring) (discussing the standard of review when a challenged law hanns a particular group);
253. see also Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 HARV. L REV. 1893, 1916-17 (2004) (describing the vague standard, of review in Laurence as "bound, to draw criticism and ... likely to generate, confusion"). In most jurisdictions, however, courts have, applied, only rational basis review to sexual-orientation-based classifications.
254. See Equal. Found, of Greater Cincinnati, Inc. v. City of Cincinnati, 1.28 F.3d 289, 293 n.2 (1997) (listing courts that have rejected heightened, scrutiny arguments).
255. But see In re Marriage Cases, 183 P.3d 384 (Cal. 2008)
256. and Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009) (applying heightened scrutiny to state-sponsored sexual orientation discrimination).
257. For example, William Eskridge has described the campaign that led to Florida's ban on adoption by lesbians and gay men as, in part, "aggressively negative, invoking themes of disgust and contagion." Eskridge, supra note 61, at 1013.
258. See, e.g., Murray, supro note 22 (reviewing the hostile commentary toward lesbians and gay men within California's Proposition 8 campaign).
259. Dan M. Kalian, Cognitively Illiberal Slote, 60 STAN. L REV. 115, 121 (2007) (footnote omitted). He adds: "Known as 'biased assimilation,' this tendency also has a straightforward cultural explanation: ordinary persons aren't in a position to identify when new information is credible, and thus a ground for updating their prior beliefs, without, recourse to the very same cultural heuristics that have generated their existing beliefs."
260. Id. at 121-22 (footnotes omitted).
261. Seegenerolly GORDON W. ALLPORT, THE NATURE OF PREJUDICE (1954).
262. Airport's hypothesis lias been elaborated by many. See, e.g., Herbert Blumer, Race Prejudice as a Sense of Group Position, 1 PAC. SOC. REV. 3, 6 (1958) (arguing that, the source of racial prejudice is found in "a complicated social process in which the individual is himself shaped and organized");
263. Douglas H. Yam & Gregory Todd. Jones, A Biological Approach to Understanding Resistance to Apology, Forgiveness, and Reconciliation in Group Conflict, 72 LAW & CONTEMP. PROBS. 63, 72 n.35 (2008) (discussing work related to Allport's hypothesis).
264. In recent years, sociologists and others have questioned some of the hypothesise core assumptions and applications. See, e.g., H.D. FORBES, ETHNIC CONFLICT: COMMERCE, CULTURE, AND THE CONTACT HYPOTHESIS 112 (1997) (concluding that studies of proximity and prejudice "show no clear and consistent correlation between greater proximity [i.e., contact] and lower levels of prejudice");
265. cf. Thomas F. Pettigrew & Linda R. Tropp, A Meta-Analytic Test of Intergroup Contact Theory, 90 J. PERSONALITY & SOC. PSYCHOL. 751, 751 (2006) (finding that the conditions required for contact, theory are not necessary for prejudice reduction).
266. See, e.g., PARENTS, FAMILIES, & FRIENDS OF LESBIANS AND GAYS (PFLAG), BE YOURSELF: QUESTIONS & ANSWERS FOR GAY, LESBIAN, BISEXUAL, AND TRANSGENDER. YOUTH 11 (2006), available at http://www.ptlag.org/filead.min/user- upload/Publicat.ions/Be-Yourself.pdf ("Homophobia, biphobia and transphobia are being challenged, however, as more and more people are learning the truth about GLBT people. Attitudes are starting to change partly because GLBT people are being open and honest about who they are. Attitudes are changing also because other people are standing up with GLBT people to say, They are my friends, or my children, or my brothers-and. I'm proud of them."');
267. see also David L Chambers & Steven K. Homer, Honesty, Privacy, and Shame: When Gay People Talk About Other Gay People to Nongay People, 4 MICH. J. GENDER & L 255, 255 ( 1997) (noting that "more and more gay people believe that the most important agent for reducing both officially sanctioned and private intolerance toward gay people is to increase the number of people known to be gay").
268. See CAROLYN WELCH GRIFFIN ET AL., BEYOND ACCEPTANCE: PARENTS OF LESBIANS AND GAYS TALK ABOUT THEIR EXPERIENCES 117-26 (1986) (describing the ability of parents of lesbians and gays to effect, acceptance and tolerance by openly embracing their child's sexual orientation);
269. see also PFLAG: Parents, Family, & Friends of Lesbians and Gays, Coming Out Help for Friends and Families, http://coimnunity.pflag.org/Page.aspx? pid=539 (last visited June 4, 2010).
270. See, e.g., Perry Transcript of Record, supra note 36, at 77-78 (detailing the "stages" of Plaintiff Jeffrey Zarrillo's coming out history);
271. see also id. at 152-53 (discussing the difficulties of Plaintiff Kristin Perry's need "to decide every day if [she wants] to come out");
272. cf. Employment Non-DiscrimiTiation Act of 2009: Hearing on H.R. 3017 Before the H. Comm. on Educ. & Labor, 11th Cong. (2009), available at http://edlabor.house.gov/documents/lll/pdf/testimony/ 20090923VandyBethGlennTestimony.pdf (statement of Vandy Beth Glenn, tonner employee of the Georgia Office of Legislative Counsel) (detailing her own coming out process: from the childhood awareness that she was a girl, to the disclosure, of her gender identity to her employer who hired her when living as a man and then fired her after and because, of her transition).
273. Qn the theory of story-sharing in another deeply contested context, see Sarah E. Bums, Notes From the Field: A Reply to Professor Colker, 13 HARV. WOMEN'S LJ. 189, 197-99 (1990) (describing the "women's voices" amicus briefs filed in cases challenging the regulation of abortion to bring before the U.S. Supreme Court the experiences of women who have had abortions).
274. ROBERT L SELMAN, THE PROMOTION OF SOCIAL AWARENESS 15 (2003);
275. see also Robert Selman, The Relation of Role Taking to the Development of Moral Judgment in Childrerx, 42 CHILD DEV. 79(1971).
276. Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 PSYCH. REV. 814, 819 (2001).
277. Id.
278. see also I. Bennett Capers, Cross Dressing and the Criminal, 20 YALE J.L. & HUMAN. 1, 3-4 (2008).
279. Capers, supra note 149, at 25.
280. Id. at 29-30.
281. Watkins v. U.S. Army, 87.5 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring).
282. Id.
283. See, e.g., Bowers v. Hardwick, 478 U.S. 186,191 (1986) (ruling that there is no "fundamental right to engage in homosexual sodomy");
284. Christensen v. State, 468 S.E.2d 188, 19.5 (Ga. 1996) ("The sole basis asserted by the State in support of its sodomy statutes is its moral interest in condemning acts of homosexual sodomy.").
285. Notably, although the majority opinion in Laurence v. Texas referred to "homosexual sodomy," those references came, mainly in connection with reviewing earlier cases and the historical enforcement of sodomy laws.
286. See Lawrence v. Texas, 539 U.S. 558, 570 (2003). Toward, the end of its decision, the Court wrote, instead, about "the protected right of homosexual adults to engage in intimate, consensual conduct."
287. Id. at 576.
288. See, e.g., Lambda Legal, Amici Curiae Brief Filed, in Support of Same-Sex Couples' Right to Marry, http://www.lambdalegal.org/our-work/in-court/briefs/ woo-v-califomia-brief-2.html (last visited June 4, 2010);
289. see also Marc R. Poirier, The Cultural Property Claim Within the Same-Sex Marriage Controversy, 17 COLUM. J. GENDER. & L 343, 344-45 n.3 (2008) (discussing terminological choices involved in describing marriage rights for same-sex couples).
290. See Project Implicit, https://implicit.harvard.edu/implicit (last visited June 4, 2010);
291. see also Cass Sunstein, Some Effects of Moral Indignation oix Law, 33 VT. L REV. 405 (2009) ('The central finding [of the IAT test] is that most people show an automatic, bias against African-Americans, older people, gays and. lesbians, and others-even when they are unaware of it, wish to be unbiased, and indeed are stunned to see that they are automatically biased. There is evidence that people's actual behavior is sometimes affected by their automatic biases rather than by their conscious judgments.").
292. For further discussion of implicit bias, see generally Anthony G. Greenwald & Linda Hamilton Krieger, Inxplicit Bias: Scientific Foundations, 94 CAL. L REV. 945 (2006).
293. See generally Christine. Jolis & Cass R. Sunstein, Debiosing Through Law, 3.5 J. LEGAL STUD. 1.99 (2006). Some debiasing efforts have been made in connection with judicial trainings, which not only supply up-to-date information regarding doctrine and relevant, data related to sexual orientation but also, in some settings, encourage, judges to engage in role-taking activities designed to broaden perspectives on the interaction of lesbians, gay men, and the law.
294. See, e.g., The Williams Institute, UCLA School of Law, Judicial Training Program, http://www.law.ucla.edu/williamsinstitute/Judicial/ index.html (last, visited June 4, 2010) ("provid[ing] state and federal judges with substantive training on legal issues impacting lesbian, gay, bisexual, and transgender people");
295. see also Nancy D. Polikoff, Educating Judges About Lesbianand Gay Parenting: A Simulation, 1 LAW & SEXUALITY 173, 179-82 (1991) (discussing the value of simulation in judicial training regarding custody disputes involving lesbian and gay parents).
296. ACLU, Campaign Against Racial Profiling Ad, http://www.aclu.org/graphics/ guilt-ad.jpg (last visited. June. 4, 2010).
297. See generally WILSON BRYAN KEY, SUBLIMINAL SEDUCTION: A.D MEDIA'S MANIPULATION OF NOT SO INNOCENT AMERICA ( 1974).
298. See, e.g., John R. Vokey & J. Don Read, Subliminal Messages: Betueen the Devil and the Media, 40 AM. PSYCHOL. 1231(1985).
299. See infra note 166.
300. NAT'L CTR. FOR LESBIAN RIGHTS, TIPS FOR LEGAL ADVOCATES WORKING WITH LESBIAN, GAY, BISEXUAL, & TRANSCENDER CLIENTS 1 (2007), availaable at http://www.nclrights.org/site/ DocServer/Proyec.to-Poderoso-Flyer-cd.pdf.'docID= 2321 (arguing that advocates must "be prepared to address hostile and irrelevant arguments" pertaining to sexual orientation or gender identity). A separate but related risk, is that, the decisionmaker will sense that, the client is hiding something, and that, sense will translate to a negative judgment regarding the client's credibility.
301. See, e.g., Cole Thaler, Representing Transgerxder Clients, GPSOLO, Apr./May 2007, at. 52, available at http://www.abanet.org/ genpractice/magazine/ 2007/apr-may/transgenderclients.html (arguing that it is important to "use the correct name and pronoun [which correspond to a client's gender identity] in all pleadings, correspondence, and other documents," unless the client "might prefer diat any transgender-related courtroom discussion take place at sidebar rather than in open court").
302. See supra notes 59-65 and accompanying text;
303. see also H.A. Chapman, D.A. Kim, J.M. Susskind, & A.K. Anderson, In Bod Taste: Evidence for the Ord Origins of Mord Disgust, 27 SCIENCE 323 (2009);
304. cf. NUSSBAUM, supra note 59, at 3 (arguing that, as in the context of sexuality, "the disgust of a judge or jury at a murder may put the defendant, into a class of especially heinous offenders").
305. Cf. David M. Huebner, Gregory Rebchook & Susan Kegeles, Experiences of Harassment, Discrimination, and Physical Violence Among Young Gay and Bisexual Men, 94 AM. J. PUB. HEALTH 7 ( 2004).
306. See generally Scott Altman, Beyond Conflor, 89 MICH. L REV. 296 (1990) (maintaining that an insistence on candor would be ill-advised because, judges who are misguided may reach better decisions than judges who clearly understand their decisionmaking);
307. Gail Heriot, Woy Beyond Candor, 89 MICH. L REV. 1945 (1991) (critiquing Altinan's claims).
308. See supra Parts I.A, II.G.