Sticky Intuitions and the Future of Sexual Orientation Discrimination

Abstract

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as “sticky intuitions,” to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions’ work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public discourse. Although the individual intuitions will not surprise those familiar with the field, their amalgamation into a typology sheds light on their synergies as well as the complex nature of their influence. After describing these entangled intuitions, I offer several provisional observations regarding intuitions’ influence on lawmaking generally. I then raise what is likely to be a critical question going forward: In an era in which courts and legislatures continue to sustain sexual orientation discrimination, despite empirical data negating any legitimate basis for the embraced distinctions, how much candor ought there be in challenges to judicial and public squeamishness about homosexuality and gender roles? Cognitive theorists offer helpful insights, although operationalizing what we know about altering intuitions may be particularly difficult in the litigation context. Still, there are a number of options that warrant continued consideration by both theorists and strategists in the field.