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By Gregory Herek, Professor of Psychology at UC Davis
On September 4, the 7th Circuit Court of Appeals upheld lower court rulings striking down anti-marriage laws in Indiana and Wisconsin. The opinion, written by Judge Richard Posner, skewers the states’ arguments against marriage equality. Early in his 40-page decision, Judge Posner writes,
…Indiana and Wisconsin … are discriminating against homosexuals by denying them a right that these states grant to heterosexuals, namely the right to marry an unmarried adult of their choice. And there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice. Wisely, neither Indiana nor Wisconsin argues otherwise.
The evidence he cites in support of this assertion included materials from the American Psychological Association and a paper on which I was the lead author, describing findings from a survey I conducted with a nationally representative sample of lesbian, gay, and bisexual adults.
As a social scientist, I was pleased that his legal analysis was informed by data from social and behavioral research. And I was particularly gratified that he referenced some of my own work. This essay briefly describes that research.
* * * * *
In the 1990s, I was surprised to discover that, despite considerable debate and heated rhetoric about whether people choose their sexual orientation, relatively little empirical research had directly examined this question.
Anecdotal and autobiographical accounts were available and a few studies reported relevant questionnaire data from small samples. But as best I could tell, no large-scale studies had asked people whether they perceived their own sexual orientation (whether hetero-, homo-, or bisexual) as a choice.
This lack of quantitative data prompted me to begin asking about choice in my own research.
In one study, my research team collected questionnaire data from 2,259 gay, lesbian, and bisexual adults in the greater Sacramento area. One questionnaire item was, “How much choice do you feel that you had about being lesbian/bisexual?” or “…gay/bisexual”. The five response options were “no choice at all,” “very little choice,” “some choice,” “a fair amount of choice,” and “a great deal of choice.”
Of the gay men, 87 percent reported they experienced “no choice at all” or “very little choice” about their sexual orientation. Women perceived having more choice than men but, even so, nearly 70 percent of lesbians reported having little or no choice.
This study’s sample was large but it wasn’t necessarily representative of the population at large. I subsequently had the opportunity to address this limitation in 2005 when I surveyed a nationally representative sample of self-identified lesbian, gay, and bisexual adults. We asked them “How much choice do you feel you had about being lesbian?” [Or gay or queer or bisexual or homosexual, depending on the term they had told us they preferred for describing themselves.] Four response options were available: “no choice at all,” “a small amount of choice,” “a fair amount of choice,” and “a great deal of choice.”
This time, 95 percent of gay men and 84 percent of lesbians reported experiencing little or no choice about their sexual orientation. Only 5 percent of gay men and 16 percent of lesbians reported they experienced “a fair amount” or “a great deal” of choice. This is the finding Judge Posner cites in his opinion.
* * * * *
Given the extent to which homosexuality is stigmatized, it is perhaps not surprising that I encountered some raised eyebrows when I initially shared my findings about perceptions of choice with other researchers—not so much because of the numbers, but simply because I had asked the question.
Some assumed that documenting how people perceive their sexual orientation would be the basis for arguing that gay, lesbian, and bisexual people shouldn’t be persecuted because “it’s not their fault” – they never chose to be “that way.” This argument is perceived (often correctly) as implicitly suggesting (a) that being lesbian, gay, or bisexual is a defect, and (b) that if people did choose to be anything other than heterosexual, they would deserve to be discriminated against.
But although Judge Posner’s opinion takes up the question of choice, he doesn’t treat homosexuality as a defect. Nor does he suggest that gay, lesbian, and bisexual people would deserve to be persecuted if they freely chose their sexual orientation.
Instead, he recognizes that lesbian, gay, and bisexual people constitute an identifiable minority group defined by an immutable characteristic that is irrelevant to a person’s ability to contribute to society. Consequently, any attempt by the state to discriminate against them must serve some important government objective.
And since, as he observes, the rationale offered by Wisconsin and Indiana for denying marriage rights to same-sex couples “is so full of holes that it cannot be taken seriously,” he concludes that “discrimination against same-sex couples is irrational, and therefore unconstitutional.”
This entry is an excerpt of an essay that originally appeared in the blog, Beyond Homophobia.
Professor Herek’s UC Davis website is here.
His Twitter handle is @DrGregoryHerek
SPSSI's Fact Sheet on LGBT discrimination and the denial of marriage equality is available here.
