Genetic Basis of Homosexuality

[robertlouis]

Finally, I do think that laws explicitly banning gay marriage are an end run around the establishment clause. When the first amendment says that the government shall not establish a national religion, I believe this also includes enacting policies that only have a religious basis. For instance, I would like someone to challenge this and make an argument for the immorality of homosexuality sans religion.

You raise many interesting questions in this thread, but for me, the one above is the absolute crux. In a country which has a strict division between church and state such as the US, it often appears to me as an interested outsider that those opposing LGBT rights, who may well be sincere in their beliefs (in the very same way as those who supported slavery often used spurious biblical justification for doing so, just in passing) are essentially constitutionally in the wrong to force their views forward if the premise is based on religious and not other belief.

Does the US constitution override states' rights on the religious nature of such questions? Are there any states who have in the past had, or would want to reintroduce, a connection between Christian faith and that state's constitution?

[broncofan]

You raise many interesting questions in this thread, but for me, the one above is the absolute crux. In a country which has a strict division between church and state such as the US, it often appears to me as an interested outsider that those opposing LGBT rights, who may well be sincere in their beliefs (in the very same way as those who supported slavery often used spurious biblical justification for doing so, just in passing) are essentially constitutionally in the wrong to force their views forward if the premise is based on religious and not other belief.

Does the US constitution override states' rights on the religious nature of such questions? Are there any states who have in the past had, or would want to reintroduce, a connection between Christian faith and that state's constitution?

Hi Robert,
I have taken one Constitutional Law course and I learned quite a bit but given the gaps in my knowledge I'll answer with what I know. Before discussing the Constitutional issues I'll just sort of lay out the framework of our government. The federal government is only allowed to legislate in areas where they are expressly given authority to do so in the Constitution. Where they are given authority to legislate, federal law trumps state law. Where they are not given power to legislate, that power is said to reside in the states.

When the bill of rights, which are the first ten amendments of our federal Constitution were enacted the understanding was that they were to constrain government action. However, it was not clear whether that was only to require the federal government to comply with its strictures. The 14th amendment passed shortly after our civil war and subsequent jurisprudence made it clear that states in passing their laws have the same requirements as the federal government but with a sort of caveat. The states can pass a law that infringes on a fundamental right if it is narrowly tailored to a compelling state need. For instance, they might be able to place a limit on someone's right to avoid self-incrimination, but only if they have a legitimate state objective and the law is narrowly tailored to achieve that objective (meaning it infringes on it as little as possible).

So what are "fundamental rights"? Well, the Court has said that any of the items in the bill of rights might be fundamental rights, but they have also expanded this to include the right to privacy. A state would not be able to have compulsory religion which would be prohibited by the establishment clause, which is in our first amendment. Now, I have not read enough cases myself to know exactly what the courts consider the establishment of a religion. For instance, if something has no secular justification, that would to me seem to be enough. So when states argue that they have a legitimate state interest in regulating the morals within their borders, some courts have been receptive to this. But again, I think the issue is where the morality comes from. If the morality is based on notions of "tradition", then it is going to naturally be very religious based. One of our most conservative Justices (Rehnquist), now dead, had a saying that "a page of history is worth a volume of logic." To me, this is an incredibly stupid statement, particularly if it's a means of maintaining the status quo regardless of whether there is any internal logic to it.

So, I suppose at the end of the day, the separation of church and state is difficult to maintain strictly. The politicians who legislate answer to the people who often have strong religious justifications for their views; and so it is up to the courts to interpret such justifications as unconstitutional if they come close to violating the First Amendment. While there is a prohibition against establishing a state religion I do not believe it's interpreted to include those values that seem to linger but which have no independent, secular justification.

As for the actions of private persons, these are more difficult to regulate. In order to pass the Civil Rights Act of 1964, which among other things, prohibited various types of discrimination by private parties, the federal government had to argue it was doing so pursuant to its power to regulate interstate commerce (the commerce clause). Remember I said that the federal government has supremacy over state laws in areas where its power has been enumerated in the constitution, but only in those areas. So, the Civil Rights Act was passed based on the federal government's legislative power to regulate commerce. This seems like such a thin reed to hang something so important as the Civil Rights Act. I know this last bit was beyond your question but I always found it interesting that this was the federal government's justification for legislating in that area. Nevertheless I am glad they did!

[broncofan]

But the short answer to your question Robert is that yes, the states are limited in what they can do by our Federal Constitution, but it is not absolute. Also, the devil's in the details I suppose with regards to what is considered trying to establish a religion. Perhaps someone who has read these cases would be able to say better than I what types of laws states have tried to pass that have been struck down on this basis. Mandatory public school prayer comes to mind?

[robertlouis]

But the short answer to your question Robert is that yes, the states are limited in what they can do by our Federal Constitution, but it is not absolute. Also, the devil's in the details I suppose with regards to what is considered trying to establish a religion. Perhaps someone who has read these cases would be able to say better than I what types of laws states have tried to pass that have been struck down on this basis. Mandatory public school prayer comes to mind?

Hmm, thanks, Broncofan (find yourself a better team, btw! ). I suppose recent states laws enabling the teaching of creationism on a level field with evolution are evidence of that ambiguity.

Strangely enough, here in the UK we have an established church, in England only - the Anglican church, of which the world head is the Archbishop of Canterbury - but the monarch is the titular head of the church and its bishops by right sit in the (unelected) House of Lords. Yet Britain is closer to being a post-religious or secular society, while the US, despite its constitutional separation of the two institutions, always seems to feature a huge religious dimension in any debate about social change. Weird, isn't it?

[broncofan]

Hmm, thanks, Broncofan (find yourself a better team, btw! ). I suppose recent states laws enabling the teaching of creationism on a level field with evolution are evidence of that ambiguity.

Strangely enough, here in the UK we have an established church, in England only - the Anglican church, of which the world head is the Archbishop of Canterbury - but the monarch is the titular head of the church and its bishops by right sit in the (unelected) House of Lords. Yet Britain is closer to being a post-religious or secular society, while the US, despite its constitutional separation of the two institutions, always seems to feature a huge religious dimension in any debate about social change. Weird, isn't it?

Yes it is and I agree with what you say. We have too much legislation at the local level imo. You'd think that a country with a very short history and whose Constitution was written by its best and brightest would have created a document both clear and logical. However, the document was so bare that most of the hard work has been done by the courts who had to figure out its meaning. As a result, everything sounds arbitrary and made up!

I hope I'm not overstepping by saying that a lot of the difference may be cultural. For instance, in Britain, would it not be seen as a little bit vulgar to trot our your deeply held religious views and judge others' actions by them? Would it be condemned if athletes credited their success with divine intervention? In the U.S, this is seen as a sign that someone comes from a good family and is down to Earth. The criticism of it is called elitism. A page of culture is worth a volume of Constitutional doctrine!

[robertlouis]

Yes it is and I agree with what you say. We have too much legislation at the local level imo. You'd think that a country with a very short history and whose Constitution was written by its best and brightest would have created a document both clear and logical. However, the document was so bare that most of the hard work has been done by the courts who had to figure out its meaning. As a result, everything sounds arbitrary and made up!

I hope I'm not overstepping by saying that a lot of the difference may be cultural. For instance, in Britain, would it not be seen as a little bit vulgar to trot our your deeply held religious views and judge others' actions by them? Would it be condemned if athletes credited their success with divine intervention? In the U.S, this is seen as a sign that someone comes from a good family and is down to Earth. The criticism of it is called elitism. A page of culture is worth a volume of Constitutional doctrine!

Over here in most cases the reaction to the faith-driven ranges from broadly sympathetic to mildly condescending via the view that it's sort of weird. The difference is that it's commonplace if not actually expected in the US whereas in the UK it's very rare indeed. Certainly in US politics any nod towards atheism or even to not being a regular churchgoer would be electoral suicide. It's a form of indirect fascism to enforce that level of conformity.

I have US friends who used to live in an affluent suburb of Dallas - they now live near me in the UK - who were regarded as beyond the pale as they didn't attend church and, even worse, didn't possess a single gun between the parents and their three sons.

[Stavros]

'The genetic basis of homosexuality...the politics of sexual orientation'.

Maybe the subtitle should be 'the science of sexual orientation'. I am confused by it all; I know that there is scientific explanation for some people whose gender identity at birth is not clear because they have been born with both a penis and a vagina or a deformed version of both or one or the other, some of which can be corrected by surgery some of which cannot. I am aware of the chromosomal structure which gives a female bias to some men and a male bias to some women, but there is a point at which this science simply does not interest me; and there is a limit to what it can explain.

In particular, is it science that can explain why for some men the most exquisite sexual satisfaction is reached through flogging, whipping, strangulation and so on? Some would look for a psychological explanation, but then some would argue psychology is not science; Freud wrote novels, there is no such thing as the 'unconscious' etc etc.

As for the 'Politics of sexual orientation', I would prefer it if certain people in the US and the UK freely admitted that when it comes to 'the politics of sexuality', the Taliban have it just about right, because I can't tell the difference between some of the statements I have read from so-called 'Christians' and the most myopic Muslims. African Christians seem to me to be no different from the Saudis or the Taliban on this issue. And I am not even sure why it is an issue in elections anyway, when elections are won and lost on economic issues.

[broncofan]

Over here in most cases the reaction to the faith-driven ranges from broadly sympathetic to mildly condescending via the view that it's sort of weird. The difference is that it's commonplace if not actually expected in the US whereas in the UK it's very rare indeed. Certainly in US politics any nod towards atheism or even to not being a regular churchgoer would be electoral suicide. It's a form of indirect fascism to enforce that level of conformity.

I have US friends who used to live in an affluent suburb of Dallas - they now live near me in the UK - who were regarded as beyond the pale as they didn't attend church and, even worse, didn't possess a single gun between the parents and their three sons.

I was talking to a very nice person one day and told him I'm an atheist. He said, he didn't understand because I seem so nice. He just looked at me like I was a devil worshipper. I said, "It's not that I don't believe in treating others well I just don't believe in a supreme being."

So on another occasion I told a woman I am Jewish, and she said, "so you don't believe in Jesus?" I didn't want to get into the whole debate about believe in him how. So I think if I say I'm agnostic that might work out alright.

You say that the reaction is sort of condescending towards such displays of religious fervor. I tell you that's how I feel. I think to myself, there goes any chance of a good conversation so just be polite. A perfect example of the American/Euro divide on the issue would be Michael Chang's 1989 French Open speech where he said Jesus was out there on the court with him. If I remember correctly, the Paris crowd whistled like they had never heard anything so preposterous.

You're right Stavros that it doesn't win elections. In the U.S, a politician chooses his party line so as not to be too radical on the issue and lose their constituents. A Republican cannot say he supports gay marriage, that he thinks homosexuality is genetic, and usually sticks to saying marriage is between a man and a woman. A Democrat sort of tests out the water on the issue and as we see with Obama eventually moves towards supporting gay marriage but usually once they've been elected.

The paraphilias, those things people frequently call fetishes do seem in many cases to be learned. Freud's psychoanalytic method is philosophically intriguing but as you say unscientific since its hypotheses are untestable. But behavioral psychology, since it eschews the mental component underlying behavior and focuses on the observable, does seem to allow the testing of hypotheses (but then one could claim it misses the essence of the psychological). I wouldn't be surprised if many people's shoe fetishes, or desires to be flogged were not tied to some sort of associative learning process, or classical conditioning of a sort. The question is at what age they developed a connection to certain types of arousal and specifically how. But if B.F Skinner were alive, perhaps he could train rats to be aroused by inanimate objects or certain types of privation.

It could be that the gender of one's desired partner is just too fundamental a thing to mold, whereas other conditions of arousal can be trained, even inadvertently. Just ideas.