Homosexuality and bonding. Morality is the choice
between different types of conduct, between right and wrong. Why,
in the minds of the Supreme Court justices, is heterosexuality
right and homosexuality wrong?
Homosexuality is an evolutionary whipsaw. According to Darwin,
favorable characteristics that enhance an organism’s survival
are passed on to the next generation, contributing to the species’ evolution. Homosexuality
is at odds with Darwinian evolution. Single-sex unions
are fruitless. Without reproduction between the two genders,
the human species will not survive. Absent other benefits,
at least superficially, it would be expected that homosexuality
would be selected against. By legislating against homosexuality,
the state is effectively codifying a law of nature. Was the Bowers court
acting out of morality or biology?
While homosexual behavior is not procreatively functional, it
may have other social purposes. L.M. Fendigan, studying a
group of monkeys who showed high levels of homosexual behavior
in which females, during mating season, solicits partners of both
sexes, consorting and mounting both male and female monkeys. She
writes: “[W]e found that females who had engaged in homosexual
consorts during the mating season were likely to remain affinity
bonded (friends) throughout the year in contrast to male-female
consort pairs which were not translated into year-long bonds. Since
sexual partners are almost always unrelated, these friendships
cross-cut matrilineal lines and are potential source of alliance
and bonding in addition to kin ties.” Primate Paradigms,
by L.M. Fendigan, The University of Chicago Press, 1992, Page 143.
Is there a genetic basis for homosexuality? A gene
called “fruitless” was identified in fruit flies in
the 1970’s that influences sexual preference. Males
with the gene mutation are unable to discriminate between the sexes,
engaging both male and female flies in courtship behaviors. Males
with severe mutations in fruitless lose interest in sex
altogether. When confronted with cues that elicit sexual
behavior in normal males, fruitless males fail to follow female
flies, play courtship songs on their wings, or attempt copulation. The
fruitless gene codes for a protein expressed in fruit fly brain
cells that plays a role in turning other genes on and off. Scientists
suggest that it coordinates male sexual behavior. Roush, Science,
274:1836, 1996; Ryner et al., Cell, 1079, 1996.In human
genetics, the discovery of a “gay” gene has been more
elusive. On the basis of twin studies, psychologists have
suggested that there is a genetic basis for homosexuality. One
published investigation reported that 54% of the identical twins
of gay men were also gay, compared to only 22% for fraternal twins. The
first hint of a human gay gene that could account for these observations
was a study in 1993 of families with a high incidence of gay relatives. Researchers
found that a certain DNA signpost on the Xq28 region of the X chromosome
was correlated with male homosexuality. Males in the family
who had inherited an X chromosome from their mother bearing this
signpost were more likely to be gay than their male relatives who
had not. This led to the suggestion that a gay gene was on the
X chromosome. Since the publication of this work, other groups
have been unable to repeat it, making the gay gene controversial,
but not dead. The original researchers still stick by their
data. Wickelgren, Science, 284: 571 (1999); Rice
et al., Science, 284:665-667 (1999).
Same-sex marriage has been determined by one state court to
be constitutionally required. In December 1990, three
couples applied for a marriage license from Hawaii’s Department
of Health: Ninia Baehr and Genora Dancel, Tammy Rodrigues and
Antoinette Pregil, and Patrick Lagon and Joseph Melillo. The
Department of Health (“DOH”) declined to issue a
marriage license to the couples solely on the grounds that the
couples were of the same sex. The Hawaii Marriage Law which
set forth the requirements for a valid marriage contract referred
to the man and woman to be married. Since the couples were
of the same sex, the Hawaii DOH considered them incapable of
forming a valid marital union under Hawaii law. The couples
sued the DOH. On appeal to the Hawaii State Supreme Court,
the court ruled that the U.S. Constitution did not guarantee
the couples a fundamental right to same-sex marriages. “[W]e
do not believe that a right to same-sex marriage is so rooted
in the traditions and collective conscience of out people that
failure to recognize it would violate the fundamental principles
of liberty and justice that lie at the base of our civil and
political institutions. Neither do we believe that a right
to same-sex marriage is implicit in the concept of ordered liberty,
such that neither liberty not justice would exist if it were
sacrificed.” Baehr v. Lewin, 852 F.2d 44 (Hawaii
1993) at 57.
However, in a striking decision, the court found the Hawaii Marriage
Law violated the Equal Protection Clause of the Hawaii Constitution,
which guaranteed all citizens, irrespective of sex, the equal protection
of the laws. Because the Hawaii Marriage Law established
a sex-based classification, the Court held that it must be reviewed
under the “strict scrutiny” standard. The
court remanded the case to circuit court to consider under this
standard whether (1) the state’s sex-based classification
was justified by a compelling state interest; and (2) the statute
was narrowly drawn to avoid unnecessary abridgement of the couple’s
constitutional rights. On retrial, the circuit court ruled
in favor of the couples, finding that the Hawaii Marriage Law unconstitutional,
and that the state cannot deny marriage licenses to same-sex couples
solely because of their sex. Baehr v. Miike, Civil. No. 91-1394
(1st Circuit, Hawaii 1996). The case was appealed to the
Hawaii State Supreme Court, but in 1999, the court dismissed the
appeal as moot in view of a 1998 amendment to the Hawaii constitution
that gave lawmakers the authority to limit state-recognized marriages
to opposite-sex couples.
In
response to the Hawaii case, preemptive legislation was set off
throughout the nation. At least 30 states banned gay marriages,
and Congress passed the Defense of Marriage Act, which denied federal
recognition of homosexual marriage and allowed states to ignore
same-sex unions licensed elsewhere.
Same-sex marriages. In July 2000, Vermont gave
gay and lesbian couples the right to join in civil unions, a status
equivalent to marriage. Since then, nearly 1,000 couples have obtained
licenses and have gone to see a minister or judge. The Vermont
civil union law resulted from the December 1999 Vermont state Supreme
Court holding that the state constitution entitles same-sex couples
to “the common benefits and protections that flow from marriage
under Vermont law.” Baker v. State, 744 A.2d 864
(Vt. 1999). The court wrote extending legal protection
to a same-sex couple’s commitment to a lasting relationship “is
simply, when all is said and done, a recognition of our common
humanity.” The court did not give same-sex couples the right
to marry. Instead, it ordered the Legislature to pass a law providing
equivalent rights. If the Legislature had failed to pass such a
law, the court would simply extend marriage rights, it said.
Why does the law prohibit marriage between kin? Under
the Hawaii Marriage Law, HRS §572-1: “In order
to make valid the marriage contract, it shall be necessary that:
(1) The respective parties do not stand in relation to each other
of ancestor or descendent of any degree whatsoever, brother and
sister of the half as to the whole blood, uncle and niece, aunt
and nephew, whether the relationship is legitimate or illegitimate.”
The
main benefit of sex is recombination. It leads to offspring
that are genetically different from the parents and from each other. Genetic
diversity is advantageous because it provides the variation necessary
for individuals to adapt to the environment. For instance,
it has been proposed that the best defense to parasites is genetic
diversity. A population runs the risk of dying out when confronted
with a lethal or debilitating parasite epidemic. Differences
between individual members of the population -polymorphisms - which
lead to parasite resistance in some members, but not others, can
effectively rescue the population from extinction. J. Seger
and W.D. Hamilton in The Evolution of Sex, R.E. Michod
and B.R. Levin, eds., Sinauer Associates, Inc., 1988.
The
environment acts on the population in the same way. Picture
the individual differences or phenotypes expressed by population
members as a menu and the external factor, be it a parasite or
an environmental condition, acting on the population as a diner. The
more menu items the diner has to chose from, the more likely it
is that the diner will be able to satisfy his appetite.
How
does recombination give rise to diversity? It happens in
a couple of ways. Humans have 23 chromosome pairs for a total of
46 chromosomes in each body cell. One member of the pair
is from the mother and the other is from the father. Reproductive
cells, called gametes, however, contain half the number of chromosomes
found in normal body cells. Each gamete – such as a
sperm or egg – has 23 chromosomes, one chromosome for each
of the 23 pairs. The gametes are formed in a process called “meiosis” in
which a cell, having the normal number of 46, splits to give rise
to cells having 23 chromosomes. The chromosomal pairs assort
independently of each other. As a result, even though each
gamete has 23 chromosomes, the particular chromosomes present will
differ from gamete to gamete. At one extreme is a gamete
having all 23 maternal chromosomes or all 23 paternal chromosomes. In
practice, gametes have a mix of both maternal and paternal chromosomes. This
means that offspring will inherit different genetic material, a
source of variation between siblings.
There is yet another variation generating mechanism. During
one part of meiosis, the individual chromosomes in the chromosomal
pairs get close together and wrap around each other, often swapping
small pieces in process called “crossing-over,” so
that at its end individual chromosomes are chimeric. The
specific string of genetic instructions on the original chromosome
is no longer intact but has been broken up and exchanged with its
matching pair. Chromosomes which have experienced crossing-over
contain pieces of both the maternal and paternal chromosomes.
The
combination of chromosomes inherited by an offspring when the gametes
of two parents combine through sexual reproduction is another source
of diversity. When two unrelated individuals sexually reproduce,
they create a unique combination of chromosomes, resulting in an
individual having different sets of traits and characteristics.
What
happens when two siblings reproduce? A unique individual
is produced but selected from a smaller pool of genes than when
unrelated organisms reproduce. Normally, offspring get only
one copy of their genes from each parent. Suppose each sibling
has inherited a deleterious gene from its mother. The deleterious
gene is “recessive,” which is to say that in the presence
of its normal counterpart the gene’s effect is masked; however,
when an individual gets two bad copies, the gene’s deleterious
effect is expressed in the individual. When the two siblings
reproduce, there is a chance that each will contribute the “bad” gene
to one offspring, resulting in a child that has two copies of the
bad gene and therefore feels its effect. Thus, reproduction
between related individuals can result in bad genes being doubled
in offspring.
The problem with this argument is that the same would be true
for a “good” gene. Half the progeny might suffer
but the other half would benefit. A more plausible explanation
is that there is simply more diversity generated when unrelated
individuals reproduce. Siblings are selecting from the same
pools of gene, so that their progeny will share many of the same
genes. To maximize diversity is a population, reproduction
between unrelated individuals - called “out-crossing” -
should be encouraged. This is especially true in small communities
where the gene pool from which to select is small. By having a
law prohibiting the marriage between certain kin, this biological
principle is reinforced. |