Homosexuality and Nature: happiness and the law at stake

Author(s): TIMOTHY F. MURPHY

Source: Journal of Applied Philosophy, Vol. 4, No. 2 (1987), pp. 195-204
Published by: Wiley
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Journal of Applied Philosophy, Vol. 4, No. 2, 1987 195

DISCUSSION ARTICLE

Homosexuality and Nature:

happiness and the law at stake

TIMOTHY F. MURPHY

abstract In this essay the argument set forth by Michael Levin

abnormality of homosexual behaviour is reviewed and criticized. Again
which holds that homosexual behaviour is abnormal because it constitutes an evolution
ary aberration, I argue that Levin's and all similarly constructed arguments fail to show
that evolutionary origins of sexual behaviour have any significant normative force. I
contend that his notion of homosexuality is confused and that he fails to consider
alternative methods of how homosexuality might have indeed served evolutionary
adaptive purposes or been the result of surplus adaptations. I argue, too, that Levin's
linking of unhappiness with homosexual behaviour is spurious and ill-supported.
Consequently, I reject Levin's claims that public policy ought to do what it can to
minimize the incidence of such behaviour. I argue by contrast that if happiness is the end
of public policy decisions, then society ought to take what measures it can to protect
persons in respect of their homosexual behaviour and identities.

The nature and legitimacy of homosexual behaviour continue to generate considerable

controversy. Since 1973, the American Psychiatric Association has formally professed
that homosexuality per se is no disease entity [1], but one may still seek and find
practitioners of sexual conversion therapy [2], While some religious thinkers have
become more tolerant of it [3], others continue to conceptualize homosexuality as a sin
of the first order, a sin said to be formally condemned in strong Old and New
Testament language. While at present 26 states of the Union do not have criminal
statutes for private consensual homosexual behaviour, the US Supreme Court recently
held that states may criminalize such behaviour if they so choose.
There are many ways used to argue against the moral legitimacy of homosexual
behaviour, whether such behaviour is transient or exclusive. Some seek recourse to
concepts of sinfulness, disease or crime in order to flesh out objections. Others appeal
to the argument that homosexuality, its religious, medical, and criminal implications
apart, is a kind of unnatural aberration which undermines its practitioners' prospects
for happiness. I will consider this kind of argument here and contend that such an
argument fails to establish that homosexuality is any significant abnormality and that
neither its purported abnormality nor the unhappiness said to be associated with such
behaviour can constitute a basis for criminalizing consensual homosexual behaviour or
for failing to provide equal protections under the law for homosexuals in the area of
public housing, service, jobs, and so on. I consider Michael Levin's 'Why homosexual

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196 T. F. Murphy

ity is abnormal' as paradigmatic of the kind of argument I wish to investigate.

Although I confine myself to his specific argument and frequently use its language, my
position is applicable a fortiori to all similar kinds of positions.

The Argument from Nature

Levin says homosexuality is abnormal because it involves a misuse of body parts, that
there is 'clear empirical sense' of that misuse, and that homosexual behaviour is
contrary to the evolutionary adaptive order. Homosexual behaviour is abnormal, he
says, because it is not the kind of behaviour which brought us to be the kind of
physically constituted persons that we are today. Persons who used their penises for
coitus per anum presumably left no ancestors. (Levin does not accept sociobiological
contentions that homosexuality plays a supporting role in adaptive success.) That there
are penises and vaginas today is due to the fact that they were used for heterosexual
coitus, and hence we can infer that heterosexual coitus is indeed what such organs are
for. Levin says: "an organ is for a given activity if the organ's performing that activity
helps its host or organisms suitably related to its host, and if this contribution is how
the organ got and stays where it is" [5]. Homosexual behaviour constitutes, according
to this line of thought, an abandonment of certain functions on which species survival
depended, and that abandonment is said to imply the loss of naturally occurring
rewards selected for by adaptive success. This latter point does not mean that there are
no compensatory pleasures, for just as the obese person will find gustatory rewards in
his or her food, the homosexual who misuses his or her body parts can find some
compensatory sexual rewards. It is just that the wilful overeater or homosexual cannot
reap the deepest rewards that nature has provided for in heterosexual usages and
achievements.

Despite the effort which Levin takes to show that homosexual behaviour falls
outside the behaviour upon which human adaptive success depended, I cannot say that
I think this argument is even remotely convincing. Indeed, I believe it to be subject to
a damning criticism. Even if it were certainly established that homosexuality was not
part of originally adaptive behaviour, I do not see how that conclusion alone coul
establish the abnormality of homosexuality because there is neither a premise tha
natural selection has any kind of ultimate normative force nor a premise that human
beings are bound to continue to be the kind of things that cosmic accident brough
them to be. There is nothing in Levin's argument to sustain a claim that departure
from a blind, accidental force of nature, or whatever metaphor of randomness i
chosen, must be resisted. Without a logically prior and controlling premise tha
patterns of adaptive success possess ultimate, normative force, then it seems tha
human beings are completely at liberty to dispose of their world, their behaviour, and
even such things as their anatomy and physiology as they see fit. H. Tristam
Engelhardt has made an argument along similar lines: that we human beings may
choose our futures and are in no metaphysically binding sense bound to continue being
the kind of persons blind determinants of nature have brought us to be [6]. Violations
of a random order of nature carry no inherent penalty for there is no ultimate enforce
or at least none is specified by this argument. Levin believes that he can show th
abnormality of homosexuality without having to show that it violates some cosmi
principle, by showing its inherent obstacles to adaptive success. But I think it i
because no cosmic principle is invoked that we can judge that adaptive success itself is
no binding force. The only guide available for human beings in respect of their lives,

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 Homosexuality and Nature 197

sexuality, and future is their will and imagination. Should the entire population of the
planet choose to become exclusive homosexuals, for example, leaving the business of
reproduction to ectogenesis, I cannot think of a reason derived from nature why they
should not do so.
Levin's argument, and others like it, ignore the prospects of beneficial departures
from the naturally adaptive order. His argument assumes that each departure from our
adaptive heritage will be unhappy in result. The argument, too, assumes that all
behaviour of all persons must serve the purpose of adaption. Clearly, it is possible that
some departures from the adaptive order are possible which do not threaten a species
survival as a whole. If a species can survive if only a majority of its members use their
organs in a particular fashion, then it may enjoy a surplus of adaptive protection even
for those who act in wholly non-procreative fashion. Homosexuality, then, might have
served some beneficial advantage (as sociobiology asserts) or it may have been (and
this is more important for my argument) no impediment to selective adaptation. If this
is so, it is hard to see in what sense homosexuality would have to be reckoned as a
natural aberration.

Even if one were to accept Levin's suggestions regarding the abnormality of

homosexuality with respect to natural selection, it seems to me that his definition of
homosexuality is highly problematic. He defines homosexuality behaviourally, i.e. as
something one does with one's body, specifically with one's organs. It is behaviour
which is said to be unnatural. Since there are, after all, self-identified gay men and
lesbians who have never had sexual relations with a member of the same (or opposite)
sex, this definition seems ill-advised. By their own lights, adolescents and closeted
adults see themselves as homosexual, their sexual continence notwithstanding. How is
one to understand the nature of their sexual dispositions if there is no overt behaviour?
Is their homoerotic desire itself abnormal? Or is only behaviour abnormal? I believe
that homosexuality is better defined as primarily a psychic phenomenon and that
specific homosexual behaviour is virtually epiphenomenal, merely a matter of what
biology makes possible (this claim would also apply to heterosexuality). Most psychia
tric texts follow this approach [7]. If one accepts the condition that homosexuality is
primarily a psychic phenomenon, and if one wanted to argue its abnormality along the
lines Levin has suggested, it would seem that one would have to argue that homoeroti
cism is somehow a misuse of the brain! There are arguments, of course, that attempt
to show homosexuality as a result of some psychic disrepair, but even though these
arguments are themselves the matter of much debate, that debate is only about
psychical development, not about uses of the brain. It is hard to imagine that one could
show homoeroticism as a misuse of the brain.
Finally, it is to be noted that Levin believes that homosexuality may be intuited as
abnormal. He says that such an intuition "remains vital" [8]. Yet however profoundly
felt and however psychologically convincing intuitions may be, still they can be
conceptually shallow and more importantly even dead wrong. That is, the appeal to
intuition is by itself no guarantee of the accuracy of the intuition, for presumably one
would, for purposes of confirmation, have to check the intuition against some other
external criterion of justification. I am hard-pressed to see how this intuition of
homosexuality's abnormality is to be made available to others who do not already share
it. Indeed, arguments from intuition are like issues said to be self-evident: precious
little can be said on their behalf, they are either seen or not. Yet Levin seems to
assume that the readers of his essay already share the intuition. For example, he
apologizes for the allegedly graphic language that he must use in his essay. Of course,

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198 T. F. Murphy

only persons who already share a revulsion at the mere mention of mutual fellation will
find such terms in need of apology. Levin also says at one point that it is hard to
believe the high number of sexual partners homosexual men report having. He then
transfers this lack of imagination to all his readers; even when these figures, he says,
are "taken cum grano, they should be compared to the reader's own experience as he
tries to imagine what it would be like to move so promiscuously among anonymous
encounters" [9], Evidently, Levin believes that no promiscuous heterosexual or
homosexual male (or that any female, promiscuous or not) will read this essay, their
time being spent, I suppose, entirely on the prowl. It is clear from these examples, and
others, that there is no accommodation of persons who do not find the mere mention of
fellation an inherent degradation, who do not find a high number of sexual partners
psychically repulsive, or who intuit homosexuality as erotic rather than repulsive. This
kind of argument presupposes an audience which already shares Levin's conclusions,
and I believe fails to show how another person, lacking these conclusions, could ever
come to an appropriation of them. However, even if such a move were made, the
position would remain open to the standard, incisive criticisms of intuitonistic moral
philosophy.

Prospects for Happiness

Levin makes a great deal of the supposed link between homosexuality and unhappi
ness. One may assume that he would reply to my foregoing remarks by admitting that
even if it were true that humans are not bound by any ultimate metaphysical sexual
directive, then it would still remain true that prudential cautions obtain against
homosexuality and that these cautions are sufficient to ground legal measures designed
to minimize the occurrence of homosexuality. "Homosexuality," Levin says, "is likely
to cause unhappiness because it leaves unfulfilled an innate and innately rewarding
desire" [10], a desire supposedly ingrained through millennia of evolutionary selection.
One might find some happy homosexuals, but Levin believes that such exceptions are
inconsequential and do not disable his argument. He does not say that happy
homosexuals are non-existent, only that they are rare and that their lives will be
inherently less rewarding than those of heterosexuals. Moreover, "Even if some line
demarcated happiness from unhappiness absolutely, it would be irrelevant if homosex
uals were all happily above that line. It is the comparison with the heterosexual life
that is at issue" [11]- The happiest persons are practitioners of heterosexuality,
therefore, even if, according to Levin, each and every homosexual was, by his or her
own admission, happy. But homosexuals are not even proximately happy, Levin says.
According to him, awash in the travails of their own self-punishing promiscuity,
present-day homosexuals would like to believe that all their ills are the result of an ill
constructed society, that their unhappiness is merely artifactual and in principle
eliminable by the appropriate cultural and political accommodations. Levin suggests
that this belief is a self-serving rationalization. Happiness has not followed, he says,
the Danish and Dutch abandonment of prejudice against homosexuals. Happiness has
not followed the work of various American organs to provide a positive image of
homosexuals, judges allowing homosexuals to adopt their lovers, the Hollywood
production of "highly sanitized" movies about homosexuality, publishers urging their
authors to show little boys using cosmetics, or advertisers appealing directly to the
homosexual market. That there has not been a resultant rise in homosexual happiness
is said to be evident from (a) the gay press not liking Hollywood's movies, (b) the

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 Homosexuality and Nature 199

appearance of especially virulent diseases in homosexual populations, and (c) gay men
needing frivolous enticements to get them to support important political causes on
their behalf [12].
By way of comment on all this, I would first note that Levin has formulated his
position in terms that in principle do not admit of refutation. He said that in principle,
however happy homosexuals may be, they still cannot be as happy as heterosexuals. Of
course, it is possible that a claim is unfalsifiable because the claim is indeed true. On
the other hand, I think one would do better to see a definitional fiat being asserted
here: human happiness, true human happiness is said to be coextensive with the
happiness of heterosexual behaviour. By definition there is nothing which could falsify
this proposition, not even the self-asserted happiness of each and every homosexual
person. I believe that this claim is no argument, avoiding as it does any potentially
falsifying statement, and that it ought to be rejected as untestable rather than accepted
as true by definition. As I have urged above, moreover, I do not believe that the
accidental contingency of the primacy of heterosexual sexuality requires that all human
happiness be sought there or that, perhaps, other kinds of happiness cannot be
engineered.
Secondly, the kind of evidence that Levin uses to establish the unhappiness of
homosexuals is altogether anecdotal and trivial [13]. That Hollywood continues to
make bad movies, even when their subjects are 'sanitized' gay men and lesbians, is no
evidence that homosexuality per se leads to unhappiness. The existence of viral disease
is a major concern of gay men, but it is not because they are gay that it is their
concern; it is because these viral diseases happen by accident of fate to affect the gay
population. Would one want to argue that heterosexuals qua heterosexuals are
somehow intrinsically headed for unhappiness as AIDS expands into that population?
Moreover, that homosexuals mix business with pleasure is no argument that they are
any less serious about their political agenda (let alone unhappier) than others. There is
a kind of unfair asymmetry being used here in adducing Levin's evidence. If one uses
such issues as he conjures up as evidence of the continuing unhappiness of homosex
uals, why couldn't one equally and legitimately use similar evidence against the
supposed happiness of heterosexuals? Most wars, for example, are the doing of
heterosexuals. Nuclear weapons are their products. Most bad movies are also theirs.
Must one infer therefore the continuing unhappiness of heterosexuals and assert
prudential cautions against heterosexuality? If Levin's use of anecdotal evidence is
acceptable against homosexuals, then it ought to be equally acceptable as an indictment
of heterosexuality. Ironically, the case against heterosexuality would probably have to
be seen as more damaging.
As for Levin's claims that homosexuals ought to be happier these days than they
were in the past, it is probably the case that this is true. Anecdotal evidence may be
used here since Levin uses it. The increasing success of gay pride parades ought to be
taken as an indicator of some measure of increased homosexual happiness. At the very
least persons who participate in them have been freed of the fear of some of the
unhappy consequences that could befall them following public identification of their
being gay. It is not without significance that in Boston, for example, the 1986 gay pride
parade attracted some 25,000-30,000 participants whereas the first parade of 1970 had
but 50! Furthermore, the heady increase in the number of gay and lesbian organiza
tions for social, business, and political and support services indicates that homosexuals
are not much inclined to wallow in despair over their sexual fate. One could go on in
this vein, but I think it is important to consider that a verdict about the happiness of

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200 T. F. Murphy

homosexuals would be a one-sided verdict indeed if it were to follow only from the
evidence Levin puts forward.
To put specific quarrels about evidence aside, it seems to me that Levin fails almost
culpably to imagine what a society would have to be like in order to be free of the
oppressive elements which contribute to the putative unhappiness of homosexuals. In
order to see the extent to which homosexual unhappiness is caused by social repres
sions and to what extent it is intrinsic, society would have to be completely free at
every significant level of bias against homosexuals. To begin with—let's call this Phase
I of the agenda: there should be no gratuitous assumption of heterosexuality in
education, politics, advertising, and so on, just as a gender-neutral society would not
presume the priority, real and symbolic, of males. For example, in education, texts and
films ought to incorporate the experiences of gay men and lesbians. Educational
measures should attempt to reduce anti-homosexuality in the same ways and to the
same extent they educate against racism. In a society reconstructed along these lines,
moreover, there would also have to be no right of access or entitlement possessed by a
heterosexual that could be denied to a homosexual. Only in such a radically restruc
tured society would one be able to see if homosexual unhappiness were immune to
social deconstruction. Even if it weren't, one could still argue that homosexuals are not
necessarily unhappy but that their happiness requires social protections or accommo
dations unrequired by heterosexuals. That is, homosexuals might need, as Phase II of
the agenda, entitlements which heterosexuals do not in the way, for example, that
legally-mandated minority hiring quotas serve other specific populations. Of course,
one might want to argue that such entitlements would be anti-democratic and therefore
objectionable. This protestation however would not by itself diminish the point being
made: that homosexual unhappiness is perhaps adventitious and that the only way of
discovering this is to protect homosexuals in their lives, jobs, and interests in ways that
are not presently served.
It is unlikely, of course, that the above-described experiment in social reconstruction
is in any important sense immediately forthcoming. Nevertheless, that the experiment
may be clearly formulated and seen as the definitive test of the social-reaction theory
of homosexual unhappiness is sufficient ground to show that Levin's account of the
unhappiness of homosexuals is unproved, its adduced evidence merely anecdotal. Even
if it were true, I will argue later, since not all human unhappiness is tractable to social
interventions, any residual unhappiness that was to survive Phase I and II of our social
reformation agenda would still be no evidence against homosexuality.

Issues at Law

Levin believes that the abnormality of homosexuality and its attendant un

are warrant enough to ground legal enactments against homosexuality an
matter of protecting citizens from lives impoverished by the loss of he
rewards. Any legislation therefore that raises the odds that a child wil
homosexual ought to be rejected as prima facie objectionable, as a derelict
duty of protecting children from the unhappy homosexual selves they might
[14]. The US Supreme Court recently ruled in Bowers v. Hardwick that s
enact, if they choose, statutes proscribing private consensual homosexual
since, according to the opinion, there is nothing in the Constitution ma
behaviour a fundamental right [15]. Levin's argument would presumabl
further since private consensual homosexual behaviour is socially invisible and

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 Homosexuality and Nature 201

as such to influence persons to become homosexual. Although he does not specifically

mention what kinds of laws ought to be called for, or what kinds of laws ought to be
rejected, presumably he means denying homosexuals protections in jobs, housing,
foster-parenting, and so on. In short, the law would presumably have to serve the
function of rendering homosexuality entirely invisible else there would continue to
exist subtle promptings to homosexuality by virtue of degree of acceptance extended to
it. Levin says he does not believe that this legal scenario would put any undue burden
on any actual homosexual since, unlike members of racial minorities, he or she can
always stay in the closet while applying for jobs, housing and the like. Therefore to
give homosexuals protections they don't really need would have to be interpreted as a
de facto social legitimation of homosexuality. This implied approval might be causally
involved in the production of more homosexuals and therefore ought to be rejected.
I do not believe that this argument is convincing. First of all, the 'cause' or 'causes'
of homosexuality are a matter of continuing controversy. There are metaphysical
arguments that homosexuality is the result of some cosmic principle of world ordering;
Plato's Symposium depicts homosexuals (and heterosexuals) as the result of an angry
god's punishment. Biological theories hold homosexuality to be the result of some
developmental variance or organismal dysfunction. Genetic theories try to locate the
origins of homosexuality at the lowest level of biological causality, the gene. The most
numerous kinds of theories are psychosocial theories which see homoeroticism as the
result of either original psychical constitution or some developmental influences. Even
the briefest perusal of the literature of the 'cause' of homosexuality leaves one with the
conclusion that the 'cause' is an essentially disputed concept. There is not even
agreement that homosexuality is a reifiable trait (any more than, say, courage) that can
be explained by reference to a universally pre-existing set of conditions [17]. This
dispute is important to consider since Levin seems to hold, without justification (at
least without explanation), a developmental theory of homosexuality, a theory that
homosexuals are made not born. This may or may not be true, but it seems wrong
headed to establish legal policy on the basis of one particular speculative theory of the
origins of homosexual behaviour. If homosexuality is primarily a function of biological
variance, for example, such laws and forbearances that Levin would see as desirable
would have no effect whatever on the production of more homosexuals. Even if the
law diligently erased all evidence of homosexual behaviour and persons from public
view, one could not automatically assume a reduced number of homosexuals or a
decrease in homosexual behaviour. I suspect that most persons are homosexual and
become homosexual in ways completely immune to the written or enforced statutes of
the various states. Children who never hear a word about homosexuality in their youth
nevertheless become homosexuals. Children who walk past homosexual clubs and
persons in the streets of certain American cities do not thereby automatically become
homosexuals. Would it really be the case that there are more homosexuals spawned in
West Virginia because there are no laws against private, consensual homosexual
behaviour there than in Virginia where there are such laws? [18] The net result of
efforts to criminalize and reduce the visibility of homosexuality then would be to
impose burdens on those who are perhaps involuntarily homosexual. At the very least,
Levin's theory gratuitously supposes a developmental theory of homosexuality, a
theory which has its insistent critics. One should also point out that even if some
developmental theory of homosexuality were true, it is not necessarily the case that
changing statutes would halt the flow of homosexuals since there may be other
pathways to homosexuality. It is also the suspicion of many psychologists that

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202 T. F. Murphy

homosexual tendencies are established very early on in childhood, in which case one
presumes fairly that statutes criminalizing sodomy and lacks of protection in housing
on the basis of sexual orientation have little to do with either ingraining or stifling
homosexual dispositions.
If the reason that Levin suggests anti-homosexual measures is to contain human
unhappiness, then his argument may be turned on its head. If the reason, or part of the
reason that homosexuals are unhappy is because of the existence of certain legally
permissible discriminations (or what comes to the same thing: fear of such), then it can
certainly be suggested that laws ought to be changed in order to protect and enlarge
the happiness of homosexuals, whether their homosexuality is elective or involuntary.
In the name of their happiness, they ought to be afforded protections under the law,
freedom from fear of prosecution for their private consensual behaviour and freedom
to occupy jobs as persons they are, not as the persons others would have them be. The
law could further protect them by saving them from blackmailers who would expose
their homosexuality to employers, landlords, and so on. It is eminently clear that the
law could at least enlarge the happiness of gay men and lesbians in these respects even
if it cannot vouchsafe them absolute satisfaction in their lives.
Interestingly enough, even if all the unhappiness said to be associated with being
homosexual were not eliminated by a dogged social reconstruction that achieved full
parity between homosexuality and heterosexuality, it would still not follow that the law
ought to be put to the purpose of eliminating homosexuality (assuming it could). Life,
sad to say, is in some of its aspects inherently tragic. For example, in some important
ways, law or society could never fully compensate the atheist for the lost rewards of
religion. Atheism can discover in the world no incentives to conduct, no promise of the
eventual recompense for injustices borne, and no guarantee that the heart's desires will
be met [19]. Society might provide such consolations as it can, but it is certainly the
case that a certain tragedy antagonistic to human happiness is an irreducible element of
atheistic thought. That atheism leads to this measure of unhappiness would certainly
not be a reason for instituting social and legal barriers to atheism on the theory that
children ought to be glowingly happy (if self-deceived) theists rather than unhappy
atheists. Human dignity is not automatically overthrown by a position of atheism; the
atheist accepts and honours those satisfactions that are within his or her power. That
homosexuality too might lead to a certain amount of unhappiness does not thereby
overthrow the dignity of homosexual persons. One realizes merely that the law is no
unfailing conduit to human happiness.
Levin's conclusions that legal measures ought to be taken to minimize the possibility
that children become themselves the sad new recruits of homosexuality therefore
cannot stand. I believe, on the contrary, that the law ought to do what it can to protect
homosexuals from socially inflicted unhappiness. Levin's point that to decriminalize
homosexual behaviour and to provide legal protections for homosexual persons would
be seen as social legitimization of homosexuality (and not just tolerance) is correct.
But this is no point over which to despair, for this inference is precisely compatible
with the underlying metaphysics of gay activism, that homosexuality is no degrading
impoverishment of human life. On the contrary, it has an integrity of its own apart
from invidious comparisons with heterosexuality. Therefore, lest society be a political
enforcer of sexual ideology, homosexuals ought to be afforded equal standing and
protections under the law, and this in the name of serving human happiness.

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 Homosexuality and Nature 203

Conclusions

Levin has argued that homosexuality is a self-punishing maladaption likely

unhappiness since homosexuals do not use their organs for what they are for. H
happiness is said to attend that behaviour which follows out the natural paths p
by evolutionary selection. As homosexuality has not thus far been shown
contributed (pace sociobiology) to the kind of beings we are today, it may be as
that homosexual behaviour is abnormal. As such behaviour, too, is linked
unhappiness it is to be rejected as both abnormal and unrewarding. The law oug
follow this conclusion through and reject any inducements to homosexuality.
I have argued against this position on a number of grounds. The most import
this: nature is represented here by Levin as without guiding or controllin
Therefore, as pathways of evolutionary adaptation are themselves only a m
metaphysical blind accident, nature lacks normative force and human be
completely at liberty to dipose of the world, their behaviour, and their bodies
see fit. One could still try to argue against homosexuality on prudential ground
grounds that it causes unhappiness, but I have argued that conclusions from
about unhappiness are inconclusive because it is not clear how much hom
unhappiness is adventitious and how much intrinsic. Levin's evidence tha
unhappiness is intrinsic is anecdotal evidence of the most unconvincing
complete reconstruction of society such that homosexuality was on a par
heterosexuality would be required in order to distinguish adventitious from int
unhappiness and make the argument conclusive. But even if there were
unhappiness attaching to homosexuality under socially liberating condition
grand experiment, such unhappiness might be likened to the irreducible tragic
of atheism. Such an unhappiness is no writ for legal and social measures des
stem the genesis of either atheists or homosexuals.
On the contrary, rather than using the law as an instrument of enforcing invi
on homosexuals, the law should, I think, be used to afford what measure of hap
it can. How far the law ought to serve the needs of gay men and lesbians is, of
a matter of debate. But it seems to follow that at the very least, the law o
protect gay men and lesbians from unhappiness caused by victimization an
exclusions which it is within the law's power to reject.

Correspondence: Timothy F. Murphy, Department of Philosophy, Boston Univer

Boston, Massachusetts 02215, USA.

NOTES

[1] Ronald Bayer (1981) Homosexuality and American Psychiatry (New York, Basic B
[2] Mark Schwartz & William H. Masters (1984) The Masters and Johnson Program
Homosexual Men, American Journal of Psychiatry, 141, pp. 173-181.
[3] See some of the selections in Edward Batchelor, Jr. (Ed.) (1980) Homosexuality and E
Pilgrim Press).
[4] Michael Levin (1985) Why homosexuality is abnormal, Monist (Spring) pp. 251-28
[5] Levin, p. 256.
[6] See H. Tristam Engelhardt, Jr. (1986) The Foundations of Bioethics, pp. 375-
OUP).
[7] Michael Gelder, Dennis Gath & Richard Mayou (1983) Oxford Textbook of Ps
(Oxford, OUP).

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204 T. F. Murphy

[8] Levin, p. 251.

[9] Levin, p. 277.
[10] Levin, p. 261.
[11] Levin, p. 262.
[12] Levin, pp. 268-269.
[13] Levin's reading of the 'evidence' is also suspect. At one point he refers to the narrative (1977) The
Sexual Outlaw (New York, Grove Press), saying that even such a sympathetic observer as John Rechy
admits that the immediate cause of homosexual unhappiness is a taste for promiscuity, anonymous
encounters, and humiliation. This, I submit, is an embarrassing misrepresentation of Rechy's book, for
that book explicitly, insistently, and frequently criticizes the hypocritical, violent sociolegal ethic which
Rechy identifies itself as a (the?) major cause of homosexual promiscuity and unhappiness. He says, for
example: "Imagine the horror of living with that constant fear, those threats. Imagine being forbidden to
seek out a sexual partner. Imagine that—and you begin to understand the promiscuous rage of the
sexual outlaw" (p. 102).
[14] Levin, p. 274.
[15] Bowers v. Hardwick, No. 85-140 (30 June, 1986).
[16] Irving Bieber, H.J. Dain, P.R. Dince, M.G. Orellich, H.G. Grand, R.H. Grundlach, M.W.
Kremer, A.H. Rifkin, C.B. Wilbur & T.B. Bieber (1962) Homosexuality: a psychoanalytic study
(New York, Basic Books). The introduction to this book reviews critically a number of theories.
[17] Douglas Futuyma & Stephen J. Risch (1984) Sexual orientation, sociobiology and evolution, in: J.P.
DeCecco & M.G. Shiveley (Eds) Bisexual and Homosexual Identities: critical theoretical issues, pp.
157-168 (New York, Haworth Press).
[18] Sodomy laws in US (illus.), New York Times, 1 July 1986, p. A19.
[19] Ernest Nagel (1965) A defense of atheism, in: P. Edwards & A. Pap A Modern Introduction to
Philosophy, pp. 460-472, rev edn (New York, Free Press).

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