September 16, 2014

Choice, Immutability, and the 7th Circuit Marriage Equality Decision

Posted at 1:00 am (Pacific Time)

Last week, the 7th Circuit Court of Appeals upheld lower court rulings striking down anti-marriage laws in Indiana and Wisconsin. Even those of us who aren’t legal scholars can find good reading in Judge Richard Posner’s written opinion, which skewered the states’ arguments against marriage equality.

As a social scientist, I was pleased that his legal analysis was informed by data from social and behavioral research. And I was gratified that he referenced some of my own work.

Early in his 40-page decision, Judge Posner wrote,

“We begin our detailed analysis of whether prohibiting same-sex marriage denies equal protection of the laws by noting that 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.” (p. 9, my emphasis)

The evidence he cited 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.

This blog post is about the research and the context in which I conducted it.

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Early research on sexual minority subcultures in the United States tended to focus on gay men. And the researchers often reported that most gay men felt they hadn’t chosen their sexual orientation. For example, in his 1951 book, The Homosexual in America: A Subjective Approach, sociologist Edward Sagarin (writing under the pseudonym Donald Webster Cory) wrote:

“This does not mean that sexual inversion [homosexuality] is voluntary, and that one need only exercise good judgment and will-power in order to overcome it or to choose some other pathway. Not at all. It is entirely involuntary and beyond control, because one did not choose to want to be homosexual.”  (p. 183)

And psychologist Evelyn Hooker, in her 1965 paper, Male Homosexuals and Their “Worlds” (in Judd Marmor’s edited book, Sexual Inversion: The Multiple Roots of Homosexuality), reported from her ethnographic observations of gay male communities:

“One of the important features of homosexual subcultures is the pattern of beliefs or the justification system. Central to it is the explanation of why they are homosexuals, involving the question of choice. The majority believe either that they were born as homosexuals or that familial factors operating very early in their lives determined the outcome. In any case, homosexuality is believed to be a fate over which they have no control and in which they have no choice.” (p. 102)

In recent years, religious conservatives have strongly disputed this view, and the argument that homosexuality is a sinful choice has achieved considerable prominence in their public rhetoric. In the 1990s, they mounted media campaigns promoting the notion that people can and should stop being gay. The director of one of these ex-gay campaigns told the New York Times that its goal was to strike at the assumption that homosexuality was immutable and that gay people therefore need protection under anti-discrimination laws.

Not surprisingly, public opinion reflects this dimension of the culture wars. Heterosexuals’ attitudes toward lesbians and gay men are reliably correlated with their beliefs about choice. Antigay heterosexuals are likely to assert that homosexuality is a choice, whereas unprejudiced heterosexuals are likely to believe that sexual orientation is inborn or otherwise not chosen. (As discussed below, the question of whether heterosexuals choose their orientation is rarely asked.)

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In the 1990s, I was surprised to discover that, despite all the debate and heated rhetoric, relatively little empirical research had directly examined how people perceive their own sexual orientation.

Indirect evidence for a lack of choice was available. For example, most participants in the Kinsey studies of the 1940s and 1950s reported they had experienced sexual attraction only to one sex (men or women) throughout their entire lives; but the Kinsey team did not ask directly about perceptions of choice.

Illuminating research was conducted by sociologist Vera Whisman, who set out to study lesbians and gay men who said they had chosen their sexual orientation. However, as she reported in her book, Queer By Choice, most of her sample did not experience their patterns of sexual attractions as a choice. Those who were “queer by choice” were typically referring to choosing their sexual behaviors and the labels and identities they adopted for themselves.

Otherwise, 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.

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This lack of data prompted me to begin asking about choice in my own research.

Based on the available evidence, I expected to find that many – probably most – gay men didn’t perceive their sexual orientation to be a choice.

For women, however, I thought the pattern might be different. Many feminists argued that lesbianism is a choice women can (and should) make for themselves. And in some early studies, gay men tended to report having been aware of their homosexuality at an earlier age than lesbians, which might be evidence of a gender difference in the experience of choice.

These and other patterns led me to tentatively hypothesize that lesbians would be more likely than gay men to report they experienced some degree of choice about their sexual orientation.

In an exploratory study during the 1990s with a relatively small community sample that included 125 gay and lesbian adults, these hypotheses were supported. My colleagues and I found that most of the gay men (80%) said they had no choice at all about their sexual orientation. The proportion of lesbians who said they had no choice was smaller, but still a majority (62%).

While these findings were interesting, the sample was small. I subsequently decided to ask a similar question in two survey studies with larger and more representative samples that also included enough bisexual women and men to permit meaningful analyses of their responses.

In the first of those surveys, we 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?” [for men the wording was "gay]/bisexual”]. The 5 response options were “no choice at all,” “very little choice,” “some choice,” “a fair amount of choice,” and “a great deal of choice.”

The results weren’t dramatically different from those we obtained in the pilot study: 87% of the gay men reported they experienced “no choice at all” or “very little choice” about their sexual orientation. Once again, women perceived having more choice than men. Even so, most lesbians (nearly 70%) reported having little or no choice.

It is perhaps not surprising that bisexuals reported feeling they had more choice about their sexual orientation. Nevertheless, nearly 59% of bisexual men and 45% of bisexual women said they experienced little or no choice. Another 15% and 20%, respectively, said they had only “some choice.”

This study’s sample was large but it wasn’t a probability sample, i.e., one that is representative of the population at large. We had recruited the participants mainly through Northern California lesbian, gay, and bisexual community organizations and at community events, most of them in the Sacramento area. People who weren’t active in the community or weren’t open about their sexual orientation were probably underrepresented.

I subsequently had the opportunity to assess how well these findings fit the population as a whole 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 previously said 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.”

The responses of gay men and lesbians were strikingly similar to those we obtained from the Sacramento-area community sample: 88% of the gay men reported “no choice at all” about being gay, with another 6.9% saying they experienced “a small amount of choice.” Only 5% reported they experienced “a fair amount” or “a great deal” of choice. Among lesbians, 68.4% reported no choice, and another 15.2% reported experiencing a small amount of choice; only 16% experienced a fair amount or a great deal of choice.

Thus, 95% of gay men and 84% of lesbians reported experiencing little or no choice about their sexual orientation. This is the finding Judge Posner cited last week in his opinion.

In contrast to the community study, a majority of bisexuals in the national sample reported having little or no choice about their sexual orientation, although they were less likely than gay men and lesbians to say they experienced no choice at all. Among bisexual men, 38.3% said they experienced no choice, and another 22.4% experienced a small amount of choice, a total of 60.7%. Among bisexual women, the numbers were 40.6% and 15.2%, respectively, a total of 55.8%.

None of these surveys explicitly defined the term choice, so we don’t know whether respondents interpreted it as referring to their pattern of attractions, their sexual behaviors, their identity, or some other facet of sexual orientation. Based on Vera Whisman’s research, cited above, it seems likely that most were referring to the amount of choice they experience in their sexual attractions and desires.

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What about heterosexuals? Do they perceive their sexual orientation as a choice?

To the best of my knowledge, no published research based on a probability sample of heterosexual adults reports data that directly answer this question. I intended to ask it in a national survey I conducted in the 1990s, but was dissuaded from doing so by other members of my research team. They convinced me the question would create problems during data collection because most heterosexuals simply wouldn’t know how to answer it.

This asymmetry in who can answer the choice question can be understood as a reflection of sexual stigma. One manifestation of stigma is the widespread assumption that heterosexuality is normal and unproblematic. Few heterosexuals are ever asked what made them straight, and most have probably never thought about the origin of their own attractions to the other sex.

Homosexuality, by contrast, is viewed as problematic. Nonheterosexuals are routinely asked what made them “that way” and, in the course of coming out, they often ask themselves this question. Even when a scientific study evenhandedly examines the origins of all sexual orientations, its subject matter is typically characterized as what causes people to be gay or bisexual.

In this context of stigma, 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 that (a) being lesbian, gay, or bisexual is a defect, and (b) if people did choose to be anything other than heterosexual, they would deserve to be discriminated against.

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But although Judge Posner’s opinion takes up the question of choice – as did Judge Vaughn Walker, who cited the same research in his decision overturning California’s Proposition 8 – 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.

However, Judge Posner 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, as he concluded, the rationale offered by Wisconsin and Indiana for their laws denying marriage rights to same-sex couples, “is so full of holes that it cannot be taken seriously…. The discrimination against same-sex couples is irrational, and therefore unconstitutional…” (pp. 7-8).

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Here are the bibliographic sources for my studies, described above.

Herek, G. M., Cogan, J. C., Gillis, J. R., & Glunt, E. K. (1998). Correlates of internalized homophobia in a community sample of lesbians and gay men. Journal of the Gay and Lesbian Medical Association, 2(1), 17-25.

Herek, G. M., Gillis, J. R., & Cogan, J. C. (2009). Internalized stigma among sexual minority adults: Insights from a social psychological perspective. Journal of Counseling Psychology, 56, 32-43.

Herek, G. M., Norton, A. T., Allen, T. J., & Sims, C. L. (2010). Demographic, psychological, and social characteristics of self-identified lesbian, gay, and bisexual adults in a U.S. probability sample. Sexuality Research and Social Policy, 7, 176-200.

A brief introduction to sampling terminology and methods is available on my website.

Copyright © 2014 by Gregory M. Herek. All rights reserved.