Regarding the Lawrence and Obergefell decisions, what is most interesting to me is the evolution in attitudes toward gay people—seeing them as a “class of persons”. (In this regard, I’d still like to take a look at the Romer v. Evans case.) The most striking evidence of this evolution, to my mind, is the use of the term “immutable” regarding same-sex orientation. This term was absent in the Lawrence decision, apparently appeared in a letter by Attorney General Eric Holder (2011?) (see Jost’s Trending Toward #Justice, p. 195) when Obama decided not to defend DOMA, and, finally appeared twice in Kennedy’s majority opinion in Obergefell. This is the culmination, perhaps, of the trend from, on the one hand, seeing gay people as heterosexuals behaving badly to, on the other hand, having the APA remove homosexuality from its list of psychological disorders.
However, welcome though such an enlightened view of homosexuality may be, it should not be the basis for decisions regarding the rights of private sexual behavior or the rights of citizens to engage in same-sex marriages. Such behavior and such rights should be based on the concept of “liberty” and not on reasons to “excuse” such (seemingly) exceptional behavior as “immutable”. Perhaps this falls into the realm of micro-bigotry, but doesn’t this represent a paternalistic majority attitude towards people who appear to be “victimized” by their genes? This all reminds me of an editorial I read in the Washington Blade back when Lawrence was hot: the writer said in effect, “Why can’t they see that I can’t help it? That I was born this way? That I don’t have a choice?” I recall being quite disgusted by this victim-oriented approach. My inner libertarian felt (and feels) that private sexual behavior should be a right regardless of one’s genes. Heterosexuals—who lack the “I-can’t-help-it” defense—have as much a right to engage in nominally homosexual behavior as gay people (as we all know, some of them do). And regarding Obergefell, if two heterosexual men or women want to marry, they have a right to do so regardless of their genetic make-up and without a need to identify with a particular class of immutably-programmed persons. —Giogio