Ed Brayton thinks it’s silly to suggest that the definition of “sexual orientation” under a proposed federal hate crime law could be interpreted to mean more than just homosexuals. According to Rep. Steve King:
"The definition for sexual orientation was defined by one of the principal authors, Tammy Baldwin of Madison, Wisconsin, as being either heterosexual or homosexual. Well, so within that definition, though, of sexual orientation by the American Psychological Association you've got a whole list of proclivities -- they call them paraphilias -- and in that list, among them are pedophiles.
I’ll grant that this is not the tack I would take. But the review of these claims by PolitiFact is too quick to dismiss the kernel of truth to the argument. Black’s Law Dictionary, as cited by PolitiFact, defines “sexual orientation” as “A person's predisposition or inclination toward a particular type of sexual activity or behavior; heterosexuality, homosexuality or bisexuality.” Even PolitiFact concedes that “That first part seems to lend some weight to King's argument.” But that should be dismissed, PolitiFact says, because the “working definition” of the term, both by federal and state governments, has held to mean simply gays, lesbians, and heterosexuals. Therefore, the argument goes, “It's laughable,” that anyone would worry that the definition might be expanded at some indeterminate point in the future.
But is it really? Would it have been silly to wonder whether Title VII’s prohibition of “gender” discrimination extended to transvestites? The circuits currently split on the issue aren’t laughing. As the elastic cultural waistband continues to expand, more and more sorts of activities will start to seem less and less objectionable. Perhaps pedophilia is a bad example of a proclivity in queue for imminent embrace. But polygamy might not be. We’ve even got an HBO show about it. And incest practitioners have been lurking in the shadows, and I’m sure they would appreciate it if we all got less queasy about their particular “orientation.” As soon as these groups see their political opening, a friendly neighborhood ACLU lawyer will be ready to seize on loose-fitting terms like “sexual orientation,” and argue that the “working definitions” that stodgy, knuckle-dragging officials have clung to for so long have no place in the ever-expanding openness of our morally neutral society.
We commit ourselves to the objective meanings of the words and terms that we choose for our laws. I quite agree that we have no firm idea of what exactly we are committing ourselves to with a term like “sexual orientation.” If we just mean gay, lesbian, and heterosexual, let’s just say that. Who’s afraid of a few extra syllables?
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