Straight Is Better: Why Law and Society May Justly Prefer Heterosexuality

Article excerpt

I. INTRODUCTION

America (like many other countries) is embroiled in a culture war over homosexuality. The homosexual movement demands the end of "heteronormativity" ? the social and legal preference for heterosexuality.1 It insists that "Gay Is Good" ? just as good as heterosexuality.2 This article presents a defense of heteronormativity; it argues that straight is better. Part II summarizes the debate over the legal treatment of homosexuality. Part III discusses the legitimacy of value judgments in the law. Part IV discusses the "new natural law" philosophy of sexuality propounded by several Catholic philosophers. Part V advances the argument for a social and legal preference for heterosexuality and traditional marriage. Part VI addresses the relevance of gender relations to the debate over marriage and heteronormativity. Part VII considers the implications of an appropriate social and legal preference for heterosexuality.

II. THE CONFLICT OVER HOMOSEXUALITY

America, like every other society in history throughout the world, has always preferred heterosexuality over homosexuality. Homosexual acts were once a capital offense in many states, and only recently did the Supreme Court overturn the few remaining state laws making homosexual acts a crime.3 Many people now insist on the removal of not just all other legal disabilities of homosexuality, but of all legal preferences for heterosexuality, an attitude dubbed "heteronormativity."

This demand covers many issues, two of which are particularly controversial. First, it insists on equal treatment of same-sex and opposite-sex couples in the law of marriage. Second, it wants a broad prohibition of discrimination against homosexuals by either government or private entities in employment, housing, services, and many other fields. Businesses, individuals, and even religious organizations would face legal pressures not to act upon, or even to express belief in, a preference for heterosexuality.4 These demands are based in part on the Constitution, but to a greater extent they are simply normative. That is, the gay movement insists that, even if the Constitution does not mandate its program, justice does.

Demands for "marriage equality" provoke a reply that children fare best (and thus society benefits) when raised by their biological parents who are married to each other.5 Evidence of this is so strong that the traditional family has gained support from many liberals who once considered such support discriminatory.6 To encourage men and women who will have children to marry and stay married, the law extends both material benefits and an expressive (or symbolic) preference to marriage. Recognition of same-sex marriage ("SSM") would impair the benefits of marriage in various ways, including crippling its social prestige.7 However, some claim that recognizing SSM would inflict no serious harm but would actually raise the prestige of marriage.8

In sum, many Americans are conflicted about the legal status of homosexuality. They believe homosexuals should not be treated as criminals or moral reprobates and should not generally suffer discrimination. However, they also value traditional marriage and religious freedom and are loath for the law to declare, in effect, that mainstream religious attitudes toward homosexuality are themselves immoral. Thus many Americans struggle to find a proper balance between these competing considerations.

III. THE LEGITIMACY OF VALUE JUDGMENTS IN THE LAW

Many political thinkers argue for governmental neutrality about matters of lifestyle and the meaning of "the good life,"9 a policy called "moral bracketing."10 This policy is not merely debatable but unachievable. The very Preamble to the Constitution states that its purpose is partly to "promote the general Welfare."11 This is hardly surprising. The Declaration of Independence proclaims that "all Men . . . are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness [and] That to secure these Rights, Governments are instituted among Men[. …