I would like to thank Leslie Green and Richard Sigurdson for their valuable comments on earlier drafts of this article.

1. All references to Dworkin’s works are given in parentheses in the text; for full citation see bibliography.

2. The two linked ideals of individual freedom and individual responsibility inform the whole of Dworkin’s new book on abortion and euthanasia, Life’s Dominion (1993a

3. As pertains to the abortion question, see 1993a, 169. Government may also express its views on moral matters, through pronouncements or policies. See below in text at pages 35–36.

4. Dronenburg v. Zech, 741 F.2nd 1388 (D.C. Cir, 1984); and Bowers v. Hardwick, 478 U.S. 186 (Supreme Court, 1986).

5. But some state regulation, such as zoning restrictions on where pornography may be sold, may be necessary so as to allow each citizen its “fair impact” on the socio-moral environment (1989c, 482).

6. For a description of discrimination against, and hostility towards, homosexuals, see Mohr, Richard, Gays/Justice: A Study of Ethics, Society, and Law (New York: Columbia University Press, 1988),Google Scholar ch. 1; and Herek, Gregory, “Stigma, Prejudice, and Violence Against Lesbians and Gay Men” inGoogle Scholar Gonsiorek, John & Weinrich, James eds, Homosexuality: Research Implications for Public Policy (London: Sage Publication, 1991) at 60–80.Google Scholar

7. For a discussion of Dworkin’s theory of judicial interpretation, his theory of law as integrity, with emphasis on his underlying theory of community, see Richard Nordahl, “The Place of Community in Dworkin’s Jurisprudence” (1992) XII The Windsor Yearbook of Access to Justice 263.

8. The theme of political community is most prominent and developed in Dworkin’s later works, in particular 1986, especially chs. 6–7; 1987b; 1989c; and 1990c.

9. This community dimension of individual rights is often missing in liberal theory and, accordingly, liberal arguments for homosexual rights often lack a crucial element. Examples include: Richards, David Sex, Drugs, Death, and the Law (Totowa, NJ: Rowman & Littlefield, 1982);Google Scholar Samar, Vincent The Right to Privacy: Gays, Lesbians, and the Constitution (Philadelphia: Temple University Press, 1991), ch. 5; andGoogle Scholar Hirsch, H.N., A Theory of Liberty: The Constitution and Minorities (London: Routledge, 1992).Google Scholar

10. Dworkin does not himself, to my knowledge, make mention of this denial of ‘spousal rights’ for same-sex couples.

11. See Mohr, supra note 6, ch.6.

12. In the majority opinions in Hardwick it was stressed that the constitutionality of anti-sodomy laws is in accord with, indeed “deeply rooted” in, “our” traditions. Bowers v. Hardwick, 478 U.S. 186.

13. In light of what many critics of liberalism contend, it should be noted that at least for Dworkin rational reflection and argument are anchored in the practices and intellectual traditions of the particular community. “We treat community as prior to justice and fairness in the sense that questions of justice and fairness are regarded as questions of what would be fair or just within a particular political group” (1986,208). Dworkin’s position on reasoning on moral/political issues is closer to Alasdair Maclntyre’s own traditionalist-communitarian position than to Maclntyre’s characterization of the “ahistorical and abstract” liberal/Enlightenment position. See Maclntyre, , Whose Justice? Which Rationality? (South Bend,IN: Notre Dame University Press, 1988).Google Scholar

14. A basic reason why Dworkin favors an ‘active’ role for courts in matters of rights is his claim that in judicial forums principled discussion has, as a rule, a more prominent role than in other political forums: “Judicial review insures that the most fundamental issues of political morality will finally be set out and debated as issues of principle and not political power alone, a transformation that cannot succeed, in any case not fully, within the legislature itself” (1985b, 70; and 1987b, 29).

15. Posner, Richard, Sex and Reason (Cambridge MA:: Harvard University Press, 1992) at 222.Google ScholarIn his own defense of homosexual rights Posner does give primary place to the empirical data. One of the purposes of his book is to educate judges, many of whom, he contends, are poorly informed about sex. In their defenses of homosexual rights Vincent Samar and David Richards both stress the crucial role of empirical data on homosexuality. See Richards, supra note 9, ch. 2.; and Samar,supra note 9, ch. 5. Richards explicitly shows how political-moral theory, in his case the concept of autonomy, when coupled with empirical data regarding homosexuality, leads to the conclusion that homosexuality should be de-criminalized (chs. 1–2).

16. The facts presented here about what gays and lesbians say about themselves in part come out of my own experience as a gay man and the stories told to me by gay and lesbian friends and acquaintances. Among the many published accounts are: Adair, Nancy & Adair, Casey eds, Word Is Out. Stories of Some of Our Lives (New York: Dell, 1978);Google Scholar Out for Ourselves: The Lives of Irish Lesbians & Gay Men (Dublin: Lesbian and Gay Men’s Collectives’ and Women’s Community Press, 1986); Jay, Karla & Young, Allen The Gay Report: Lesbians and Gay Men Speak Out About Sexual Experiences and Lifestyles (New York: Summit Books, 1979);Google Scholar Kehoe, Monika Lesbians Over 60 Speak for Themselves (New York: Haworth Press, 1989);Google Scholar The Coming Out Stories, Wolfe, Susan & Stanley, Julia eds, (Watertown, Mass.: Persephone Press, 1982);Google Scholar Savin-Williams, Ritch Gay and Lesbian Youth: Expressions of Identity (New York: Hemisphere Publishing Co., 1990); andGoogle Scholar Herdt, Gilbert & Boxer, Andrew Children of Horizons: How Gay and Lesbian Teens Are Leading a New Way Out of the Closet (Boston: Beacon Press, 1993).Google Scholar For many examples from the stories of gay people, and an extensive list of sources, see Marc Fajer, “Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men” (1992) 46 Univ. of Miami L. Rev. 511.

17. On the formation of a homosexual identity, see Richard Troiden, “The Formation of Homosexual Identities” (1989) 17:1/2 J. of Homosexuality 43; Gonsiorek, John & Rudolph, James “Homosexual Identity: Coming Out and Other Developmental Events” in Homosexuality:Research Implications for Public Policy;Google Scholarand ibid.

18. Herdt & Boxer, supra note 16, 103, 180.

19. See the discussion in Mohr, supra note 6 at 39–42. There are some radical feminists who do say they ‘choose’ lesbianism because of the oppressive nature of patriarchy. See Lillian Faderman, “The ‘New Gay’ Lesbians” (1984) 10: 3/4 J. of Homosexuality 85. So apparently there are a few who identify themselves as lesbian who do not have an exclusive or predominant homosexual sexual orientation. In addition, there are some ‘genuine’ lesbians—those self-identified lesbians who do have very strong homoerotic desires—who say they have ‘chosen’ their lesbianism. Many of these lesbians discover their homoerotic feelings relatively late (after adolescence) and some continue to have heterosexual desires and might even on occasion act on them. It might be more accurate for analytical purposes to term these latter lesbians, those with strong heterosexual desires, ‘bisexuals who are living as lesbians’. It would still make sense to say that these lesbians who say they choose their lesbianism (excluding the purely political lesbians) are a part of the grouping, homosexuals. A vital element of their being, their lesbianism, is based in deep-rooted and strong homoerotic feelings that cannot be turned off (though the strength of the feelings may flow and ebb). See Golden, Carla “Diversity and Variability in Women’s Sexual Identities” in Boston Lesbian Psychologies Collective, ed., Lesbian Psychologies: Explorations & Challenges (Urbana: University of Illinois Press, 1987); andGoogle Scholar Card, Claudia “Lesbianism and Choice” (1992) 23: 3 J. of Homosexuality 39.CrossRefGoogle Scholar For a description of some of the empirical findings of differences in sexuality between gay men and some lesbians, see Savin-Williams, supra note 16. And see the discussion of bisexual women in Martin Weinberg, Colin Williams, and Pryor, Douglas Dual Attraction: Understanding Bisexuality (Oxford: Oxford University Press, 1994), passim.Google Scholar

20. Attention to the homosexuals’ own stories yields more than facts about their lives. The emotional impact of the stories should help heterosexuals better understand the homosexual and the magnitude of the problems society’s homophobia causes for most homosexuals and thus why the issue is one of basic rights. Dworkin is correct in emphasizing the importance of theory in guiding one to the right conclusions regarding rights issues. But emotion also has its role. Emotion can guide theory (as well as obstruct it). See Nussbaum, Martha “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism” (1992) 20 Pol. Theory 237.CrossRefGoogle Scholar For an argument for ‘sympathetic understanding’ on the part of judges, see West, Robin ‘Taking Preferences Seriously” (1990) 64 Tulane L. Rev. 659.Google Scholar On the importance of gay story-telling, see Fajer, supra note 16.

21. See, as an example, the extensive list of organizations and activities provided in The Pink Pages: Toronto’s Gay & Lesbian Directory, 1993 (Toronto: The Pink Pages, 1993). For a discussion of the Toronto gay community, see Murray, Stephen “Institutional Elaboration of a Quasi-Ethnic Community” (1979) 9 Int’l Rev. of Mod. Sociology 165;Google Scholar for a discussion of the Chicago community, Herdt & Boxer, supra note 16, ch.2; and for San Francisco, Murray, Stephen “Components of Gay Community in San Francisco” in Gilbert Herdt, ed., Gay Culture in America (Boston: Beacon Press, 1992).Google Scholar

22. See the discussion in Murray, supra note 21.

23. The formation of the gay/lesbian identity comes out of the dialectic between that ‘inner force’—those deep-seated homoerotic desires—and the existing gay and non-gay socio-cultural forms (and other social factors). See the discussion by Epstein, Steven “Gay Politics, Ethnic Identity: The Limits of Social Constructionism” (May-August 1987) 93/94 Socialist Re. 9.Google Scholar Of course, homosexuals differ as to the extent to which they identify with the gay/lesbian community, and the extent to which they take on a gay or lesbian identity (for some, other elements in their being might be much more important). In this regard, homosexuals don’t differ from individuals of other social groupings; blacks differ to the extent they identify with the ‘black community’.

24. For a summary of the scientific literature see Green, Richard Sexual Science and the Law (Cambridge MA: Harvard University Press, 1992), ch. 4. See alsoGoogle Scholar Isay, Richard Being Homosexual: Gay Men and Their Development (New York: Farrar, Straus, Giroux, 1989); andGoogle ScholarPubMed Harry, Joseph “Sexual Orientation as Destiny” (1984) 10: 3/4 J. of Homosexuality 111.CrossRefGoogle ScholarPubMed

25. Haldeman, Douglas “Sexual Orientation Conversion Therapy for Gay Men and Lesbians: A Scientific Examination” in Homosexuality: Research Implications for Public Policy.Google Scholar

26. Of course, many heterosexuals can partake of homosexual sex, as many do in prison and in the military (and as young adolescents). But once these ‘opportunistic homosexuals’ have ready access to persons of the opposite sex, they will resume their natural heterosexual behavior. It is wrong to infer from this type of homosexual behavior and from the fact that many with an exclusive or predominant homosexual orientation have at one time engaged in heterosexual sexual activity and even married, that sexual orientation is for a sizeable percentage of the population fluid and thus changeable. One needs to distinguish between erotic feelings and sexual behavior. For an example of such a mistake, see Halley, Janet “The Politics of the Closet” (1989) 36 UCLA L. Rev. 915–76.Google Scholar For discussion of ‘opportunistic heterosexuals’ and ‘opportunistic homosexuals’, see Posner, supra note 15 at 100–58, passim. There are, of course, genuine bisexuals, persons who are strongly attracted erotically to members of the same sex and to members of the opposite sex (Posner claims that they make up a small minority). Surprisingly, there has been little research on bisexuals. For a recent study of a small group of bisexuals in San Francisco, see Martin Weinberg et al., supra note 19. It does appear that there is not a bisexual identity nearly to the extent that there is a homosexual identity or a heterosexual identity. This may be because in our society many bisexuals feel pressured to adopt either a heterosexual identity or a homosexual identity and to be in their behavior either exclusively heterosexual or homosexual (the pressure comes from both sides). See Paul, Jay “The Bisexual Identity: An Idea without Social Recognition” (1983–4) 9 The J. of Homosexuality 45; and Weinberg et al., supra note 19 passimCrossRefGoogle Scholar

27. For description of recent evidence from one study, see the articles in Science (Weekly), August 16,1993, pp. 291–93, 321–27; and see Frederick Whitan, Milton Diamond, and Martin, James “Homosexual Orientation in Twins” (1993) 22 Archives of Sexual Behavior 187.Google Scholar

28. See, e.g.,Whitam, F.L. “Culturally Invariable Properties of Male Homosexuality: Tentative Conclusions from Cross-cultural Research” (1983) 12 Archives of Sexual Behavior 207; andCrossRefGoogle Scholar Dynes, Wayne & Donaldson, Stephen eds, Ethnographic Studies of Homosexuality (New York: Garland Publishing, 1992).Google Scholar

29. For example, Halperin, David One Hundred Years of Homosexuality: and Other Essays on Greek Love (New York: Routledge, 1990); andGoogle Scholar Weeks, Jeffrey “Against Nature” in Which Homosexuality? (London: GMP Publishers, 1989).Google ScholarPubMed For a critical discussion of this “social constructionist” position see Boswell, John “Revolutions, Homosexuals, and Sexual Categories” in Martin Duberman et al., eds, Hidden from History: Reclaiming the Gay and Lesbian Past (New York: NAL Books, 1989).Google ScholarFor a useful collection of essays on this controversy between the ‘social constructionist’ view and the ‘essentialist’ view (including attempts at a synthesis), see Stein, Edward eds, Forms of Desire: Sexual Orientation and the Social Constructionist Controversy (New York: Garland Publishing, 1990); reprinted by Routledge, 1992.Google Scholar

30. Useful discussions include: Adam, Barry The Rise of a Gay and Lesbian Movement (Boston: Twayne Publishers, 1987); andGoogle Scholar Weeks, Jeffrey Coming Out: Homosexual Politics in Britain from the Nineteenth Century to the Present (London: Quartet Books, 1977); andGoogle Scholar D’Emilio, John Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940–1970 (Chicago: University of Chicago Press, 1983).Google Scholar The hostility in the heterosexual population towards homosexuals is, I believe, a very important element in the forming of the homosexual or gay/lesbian identity. The identity formation is, in part, a defense mechanism to preserve one’s dignity (and to feel good about oneself). A similar social logic is a work, I believe, in the case of other social groups, e.g., North American blacks and Hispanics.

31. A person with black skin who identifies herself as a black person has been ‘socially constructed’, the history of slavery and post-slavery racism in a predominantly ‘white’ society being of prime importance. The biological-physical element, the color of the skin, is simply the sign for the appellation ‘black person’.

32. Useful discussions include: Weinberg, Martin & Colin, Williams Male Homosexuals: Their Problems and Adaptations (Oxford: Oxford University Press, 1974) ch. 14;Google Scholar Savin-Williams, supra note 16 at 104–06,125–26,131; Bell, Alan & Weinberg, Martin Homosexualities: A Study of Diversity Among Men and Women (New York: Simon & Schuster, 1978) ch. 195–231; andGoogle Scholar Rosen, David Lesbianism: A Study of Female Homosexuality (Springfield, IL: C. Thomas, 1973).Google ScholarFor a good discussion of the costs of being ‘in the the closet’ (with an extensive list of sources), see Fajer, supra note 16 at 595–602.

33. “Sexual identity is experienced as the seamless web of personhood. No other quality—not race, not religion—defines self-concept, overt behavior, and the reactions of others. No other quality is driven by the biological imperative.... Sexuality is the bedrock human element…” Green, supra note 24 at 266 (and see ch. 3).

34. Bell & Weinberg, supra, note 32 at 216; Isay, supra note 24 at 15; Savin-Williams, supra note 16 at 23–25; Gonsiorek, John “Results of Psychological Testing on Homosexual Populations” (1981/2) 25 Am. Behavioral Sci. 385; andGoogle Scholar Ruse, Michael, Homosexuality: A Philosophical Inquiry (London: Basil Blackwell, 1988) ch. 9.Google Scholar

35. Mohr, supra note 6 at 30–31; and Rivera, Rhonda “Sexual Orientation and the Law” in Homosexuality: Research Implications for Public Policy (Newbury Park: Sage Publications, 1991).Google Scholar

36. For a summary of recent research findings, see Peplau, Letitia “Lesbian and Gay Relationships” in Homosexuality: Research Implications for Public Policy, ibid.Google Scholar

37. Based on the data from a recent (and admittedly imperfect) study, in any given group of child molesters homosexuals would represent from between 0 and 3.1% of the molesters (those that children would identify). Jenny, Carole et al., “Are Children at Risk for Sexual Abuse by Homosexuals?” (July 1994) 94:1 Pediatrics 41–44.Google Scholar See also Newton, David “Homosexual Behavior and Child Molestation: A Review of the Evidence” (1978) 13 Adolescence 29; andGoogle Scholar Spencer, Mary “Sexual Abuse of Boys” (July 1986) 78:1 Pediatrics 133.Google Scholar

38. It should not be forgotten that members of other groupings can also hide who they are; for example, some blacks and aboriginals can pass as white. Moreover, many gays and lesbians cannot pass as straight.

39. On the effect of these laws, see Mohr, supra note 6, ch. 2.

40. Dworkin, of course, recognizes that in order for a grouping to fall under the American Equality Clause a substantial interest must be demonstrated. My argument is that he has not demonstrated such an interest in the case of homosexuals; his way of viewing homosexuality and the homosexual rights issue gets in his way.

41. For discussions of the application of the American Equal Protection Clause to homosexuals, see Note, “The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification” (1985) 98 Harv. L. Rev. 1285; Miller, Harris “An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality” (1984) 57 S. Cal. L. Rev. 797;Google Scholar Sunstein, Cass “Sexual Orientation and the Constitution: A Note on the Relationship between Due Process and Equal Protection” (1988) 55 Univ. of Chicago L. Rev. 1161; andGoogle Scholar Wolfe, Marianne “High Tech Gays v. Defense Industrial Security Clearance Office” (1991) 25 Univ. of San Fran. L. Rev. 429.Google Scholar There is increasing agreement that sexual orientation is included, on analogous grounds, under section 15(1) of the Canadian Charter (though the Supreme Court has not yet ruled on the matter). But what this inclusion means in terms of concrete rights and benefits (especially given section 1 considerations) has yet to be determined. See the articles by McAllister, Debra “Sexual Orientation and Section 15” (1991–92)Google Scholar 1 Nat’l. J. of Con. L. 377; “Schachter and Its Application in Sexual Orientation Cases” (1992–93) 2 Nat’l J.of Con. L. 226; “Recent Sexual Orientation Cases” 2 Nat’l J. of Con. L. 354; and “Sexual Orientation and Spousal Status: The Unresolved Question” (1993) 3 Nat’l J. Con. L. 288.

42. For examples from the 1992 Oregon and Colorado anti-gay referendum campaigns, see Timothy Egan, “Oregon Measure Asks State to Repress Homosexuality” New York Times, Aug. 16,1992, Al. In January, 1993, Diane Mirosh, the then Community Development Minister in the Alberta Government, took a public stand against putting sexual orientation in the Alberta Human Rights Code, arguing that this would give gays “rights over and above everyone else’s.” See Miro Cernetig, “Alberta Cabinet Rookies Land Klein in Hot Water” The Globe and Mail (Toronto), Jan. 2,1993, A5. For the general argument, see Roger Magnuson, “Homosexuals Do Not Need Civil Rights Protection” in Dudley, W. ed., Homosexuality: Opposing Viewpoints (San Diego CA: Greenhaven Press, 1993).Google Scholar

43. It is true that being homosexual is closely tied up with a particular type of behavior, homosexual sex (homosexuals like heterosexuals can, however, abstain from the sexual behavior their very being inclines them towards). And it is true that this connection between being and a particular type of conduct is not as strong for other distinct social groupings and is absent in the case of some, e.g., racial groups. The main point still holds: homosexuality is a feature of the person’s being; the same-sex behavior is intricately tied up with the person’s being. Furthermore, as suggested in the above discussion, there are aspects of being homosexual other than same-sex sexual behavior.

44. See Rusk, Peter “Same-Sex Spousal Benefits and the Evolving Conception of Family” (1993) 52 Univ. of Tor. Fac. L. Rev.. 170.Google Scholar

45. For an argument for homosexual marriage in terms of the underlying value of ‘intimate association’, see Karst, Kenneth “The Freedom of Intimate Association” (1980) 89 Yale L. J. 624.Google Scholar For a useful collection of essays, see Sherman, Suzanne ed., Lesbian and Gay Marriage: Private Commitments, Public Ceremonies (Philadelphia: Temple University Press, 1992)Google Scholar (including articles by gays opposing marriage). Same-sex marriage has in fact existed throughout much of human history, and in many different societies. See Eskridge, William “A History of Same-Sex Marriage” (1993) 79 Va. L. Rev. 1419; andGoogle Scholar Boswell, John Same-Sex Unions in Premodem Europe (New York: Villard Books, 1994).Google Scholar

46. Opponents of same-sex marriage and ‘spousal’ benefits are quite right when they argue that such legislative changes would signify the community’s approval of homosexual relationships. For recent expressions of this view by opponents of Ontario’s Bill 167, the recently defeated bill to give same-sex couples ‘spousal’ benefits, see Legislative Assembly of Ontario, Official Report of Debates (Hansard), Nos. 136–141 (June 2–9, 1994).

47. Many of the arguments used today against same-sex marriage were used in the past against mixed race marriages. Trosino, James “American Wedding: Same-Sex Marriage and the Miscegenation Analogy” (1993) 93 Boston Univ. L. Rev. 73.Google Scholar

48. See, e.g., Horowitz, Carl “Homosexuality’s Legal Revolution” in Homosexuality: Opposing Viewpoints, supra note 42.Google Scholar

49. For a description of this legislation, see (1988) 17:8 Index on Censorship 39.

50. Thus Dworkin differs from liberals like Charles Larmore who argue that the liberal principle of neutrality forbids government from basing policies on a particular, disputed conception of the good. See Larmore, Patterns of Moral Complexity (Cambridge: e: Cambridge University Press, 1987).CrossRefGoogle Scholar

51. See Rofes, Eric “Opening Up the Classroom Closet: Responding to the Educational Needs of Gay and Lesbian Youth” (1989) 59 Harv. Ed. Rev 444;CrossRefGoogle Scholar and Kourany, R.F. “Suicide among Homosexual Adolescents” 1987) 13 J. of Homosexuality 111.CrossRefGoogle ScholarPubMed

52. But it would be illegitimate for individuals to make these remarks about homosexuals out of mere prejudice, or so Dworkin implies. Moral reasons have to be given. See Dworkin’s early commentary on Patrick Devlin’s opposition to the Wolfenden’s Report recommending the de-criminalization of consensual and private homosexual acts, reprinted in 1978b, ch. 10 (here Dworkin outlines the nature of a moral argument). In this piece Dworkin suggests that most (almost all?) views against homosexual rights have their basis in prejudice; it would be difficult to make a moral argument against homosexuality.

53. Here I give the word ‘tolerate’ a connotation different from Dworkin’s implied meaning. See Amy Gutmann’s distinction between respect and toleration in her Introduction to Taylor, Charles Multiculturalism and “The Politics of Recognition’ (Princeton: Princeton University Press, 1992) at 21–24.Google Scholar

54. Timothy Egan, “Oregon Measure Asks State to Repress Homosexuality” New York Times, Aug. 16, 1992, Al. Many other examples are given in Adam, supra note 30.

55. For many examples from US cases, see Green, supra note 24, ch.2. Concerning Canada, see Katherine Arnup, “Mothers Just Like Others” (1989) 3 Can. J. of Women and the L. 18.

56. Bowers v. Hardwick, 478 U.S. at 203, n. 2.

57. According to Ann Goldstein, how the judges viewed homosexuality was a determining factor in how they voted in Hardwick. Goldstein, “History, Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick” (1987/88) 97 Yale L. J. 1073. Marc Fajer in his “Can Two Real Men Eat Quiche Together?” gives many examples of false stereotypes about homosexuals that have worked their way into US judicial decisions. Fajer stresses the importance for judges of the concrete stories that gays and lesbians tell; these stories can help break down stereotypes supra note 16. Richard Green in Sexual Science and the Law stresses that views on what the facts are about matters of sex have a strong impact in judicial decision-making (he gives many examples) supra note 24. For examples of judicial prejudice against gays and lesbians in Canadian cases, see Rusk, supra note 44 at 170. Michael Sandel, a leading communitarian theorist and critic of liberal theory, argues that in order to achieve success rights for homosexuals have to be argued for in terms of the good of the homosexual relationship, thus necessitating (the implication is) much attention to the empirical material. Sandel, “Moral Argument and Liberal Toleration: Abortion and Homosexuality” (1989) 77 Cal. L. Rev. 521.

58. My argument in this section has been that with Dworkin’s way of conceptualizing the homosexual rights issues (along with his inattentiveness to the facts about homosexuality) it would be difficult to provide convincing arguments for this full complement of homosexual rights. As indicated in my discussion, Dworkin’s approach to the question, coupled with his underlying political theory, does provide strong arguments for some of these rights, such as those connected with the fundamental freedoms of free speech and association. But even for these rights (or at least some of them) my approach yields stronger arguments, partly because of the focus on the facts about homosexuality. One further point: bisexuals should, of course, be given the same protection for their sexual acts and relationships as homosexuals and heterosexuals. The establishment of full equality rights for homosexuals would necessarily mean that similarly situated bisexuals would be accorded the same rights. Furthermore, once the rights of homosexuals and bisexuals are fully recognized by the community, and with the community’s concomitant stamp of approval for homosexual relationships, it would be difficult for the community to prevent heterosexuals from engaging in homosexual relationships (and difficult to argue against a right to do so).

59. In other words, the near silence cannot just be explained by the fact that Dworkin has not written a treatise on the question of homosexual rights (the assumption being that if he wrote such a work he would fill in the blanks), nor by the belief that there is no need to give the facts because they are obvious.

60. See Dworkin’s criticisms of the ‘goal-based’ strategy of promoting ‘human flourishing’ employed by the Williams Report in its recommendations for liberalizing British laws on pornography (1985b, ch. 17).

61. My thinking here has been influenced by Martha Nussbaum’s recent writings on human functioning and capability. See in particular her “Human Functioning and Social Justice: In Defense of Aristotelian Essentialism” (1992) 20 Pol. Theory 202; and “Aristotelian Social Democracy” in Douglass, R. Mara, G. and Richardson, H. eds, Liberalism and the Good (London: Routledge, 1990)) 203.Google ScholarAmartya Sen is another leading proponent of capability analysis (he and Nussbaum have collaborated). See especially Sen, Inequality Reexamined (Cambridge MA: Harvard University Press, 1992). For a useful summary of Nussbaum’s and Sen’s theories, see David Crocker, “Functioning and Capability: The Foundations of Sen’s and Nussbaum’s Development Ethic” (1992) 20 Pol. Theory 584. Some years earlier Charles Taylor had argued that rights are grounded in our conception of human capacities (he gave few specifics). Taylor, “Atomism” reprinted in Philosophy and the Human Sciences (Cambridge: Cambridge University Press, 1985).

62. See Charles Taylor’s illuminating discussion of the need for recognition, and the struggle for it, in his Multiculturalism and ‘The Politics of Recognition’, supra note 53.

63. Richard Mohr stresses the importance of this quest for dignity in his Gays/Justice, supra note 6, especially ch. 14.

64. For Dworkin, remember, dignity is tied up with individual freedom and responsibility. A person who uses his fundamental freedoms to live the life that is in accord with his ethical convictions has dignity and, in a good liberal community, the community’s respect (see, e.g., 1993a, 166, 236,239; and 1990c, 336). By denying homosexuals fundamental rights, the state shows them disrespect, does not respect their dignity as autonomous and free individuals.

65. Communitarian theorists rightly stress this point. See the accounts of two communitarians with a liberal political bent: Selznick, Philip “The Ideal of a Communitarian Morality” 1987) 75 Cal. L. Rev. 445;CrossRefGoogle Scholar and Taylor, Charles Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University Press, 1989) Part I.Google Scholar

66. To be fair, Dworkin does explicitly recognize that individuals (including their conceptions of themselves) are shaped in important ways by the community in which they are in (e.g., 1989c, 488–90). My point is that Dworkin has not incorporated this understanding into his concrete commentaries on rights (and remarks on dignity), at least not enough.

67. For discussion of the concept of ‘critical interests’ and his use of it in his analysis of the abortion and euthanasia issues, see 1993a; also see 1990d.

68. See 1993a, ch. 7; the discussion here is with specific reference to euthanasia. Dworkin readily admits that some individuals may be mistaken as to their ‘critical interests’ and may choose an inappropriate mode of life. But that is no justification for not allowing them to lead the life they have chosen, for personal endorsement of how we live our lives is bound up with what is in our ‘critical interests’ (1989c, 484–87).

69. Compare this with Nussbaum’s sixth functional capability (she lists ten): “Being able to form a conception of the good and to engage in critical reflection about the planning of one’s life,” “Defense of Aristotelian Essentialism”, supra note 20 at 222. Her tenth functional capability is: “Being able to live one’s own life and nobody else’s; being able to live one’s own life in one’s very own surroundings and context.” Ibid.

70. David Richards, like Dworkin a kind of neo-Kantian liberal, explicitly bases privacy rights for homosexuals in fundamental capabilities humans have “to take ultimate responsibility for how they live their lives.” Supra note 9 ch. 2.

71. Liberal theorist, Kenneth Karst, grounds fundamental rights for homosexuals (and thus the unconstitutionality of anti-sodomy laws) on the value of intimate associations. See his “The Freedom of Intimate Association.” Supra note 45.

72. I believe that Dworkin’s discussions on the pornography issue exhibits this weakness (see note 75 for Dworkin’s position). Dworkin does not in his discussions take enough account of the effect widespread violent heterosexual pornography has on the social environment of women and thus on their capability of living the life they want (through undermining, say, their self-esteem and through contributing to a hostile social climate). Of course, once these systemic factors are seriously considered, one might still conclude that there should be a right to consume pornography. As shown by his scheme for ‘equality of resources’ (see infra note 77), Dworkin does give great attention to the economic setting and does justify restrictions on economic liberty. Why not the same attention to the social setting?

73. What these essential needs/capabilities are would be decided in the course of the community’s discussions (including that which takes place in the courtroom), similar to the way Dworkin says determinations regarding the meaning of the community’s equality principle come about.

74. , “Priority of Right and Ideas of the Good” (1988) 17 Phil,and Publ. Affairs at especially 258–60.Google Scholar

75. According to Dworkin, a right to pornography is grounded in the basic freedom we have to live the life we think is right for us. In order “to allow and encourage individuals to take responsibility for their own personalities and convictions,” there must be access to “the widest available literature and other forms of art,” including mat deemed pornographic (1987a, 35). The evidence, he says, does not support the contention that pornography is a significant cause of sexual crime. See 1985b, ch. 7; 1991a, 1992b, and 1993b.

76. Dworkin’s formulation of the ethical foundations of his theory has evolved over time, as he himself recognizes. In his Tanner Lectures he says that contrary to his present position, he had at one time argued that “the heart of liberalism is its neutrality among theories of the good” (1990d, 7, n. 2). For an example of this now rejected formulation, see his “Liberalism,” reprinted in 1985b, ch. 8.

77. Dworkin’s scheme of ‘equality of resources’ could be one way to help ensure that all have this opportunity (though probably not sufficient in itself)- Dworkin argues that the equality principle, properly interpreted, requires ‘equality of resources’. According to such a scheme, individuals would receive for the use during their lifetime equal bundles of resources, with which they can do as they like. In the calculation of the size of the bundles, individuals are compensated for inequalities that come from ‘brute luck’, such as low intelligence and physical handicaps. See especially 1981b, but also 1987a.

78. See Nussbaum’s account of the liberal elements in her capability theory. “In Defense of Aristotelian Essentialism,” supra note 20 at 225–26.

79. Dworkin and Richard Posner provide interesting contrasts in their respective approaches to the homosexual rights issue, and to rights in general. Dworkin emphasizes the role of political-moral theory, and he is right to do so. Rights cases, he stresses, should be decided on the basis of principle, not on the basis of a utilitarian-like weighing of costs and benefits (such weighing is particularly dangerous if prejudicial preferences are counted as part of the costs) (see especially 1978b). As emphasized in this article, the political-moral theory underlying Dworkin’s position on rights, especially the principle of equal concern and respect, does and should play a crucia role in the defense of homosexual rights. But in order to have the effect that Dworkin wants (at least in the case of most of the rights discussed) the theory when applied to the issue needs to be anchored in the facts about homosexuality. In contrast, in Sex and Reason, Posner does emphasize the facts about homosexuality, and as well makes much use of cost-benefit analysis (Posner is a leading proponent of the ‘economics school’ approach in legal analysis; Dworkin is a leading opponent of this school [1978b, ch. 4; 1985b, chs.12’3; and 1986, ch. 8]). On the other hand, Posner does not make use of a Dworkinian-like equality principle. In fact, he ridicules the Dworkinian emphasis on moral-political theory (though he himself relies on a poorly articulated liberty principle) (ch. 8). The absence of a strong equality principle no doubt contributes to the mixed conclusions Posner comes to regarding homosexuals in the military and homosexual marriage (though on other issues Posner comes to conclusions very favorable to homosexuals). For evidence that Posner’s use of cost-benefit analysis privileges the anti-homosexual status quo,see , “A Social Constructionist Critique of Posner’s Sex and Reason: Steps Toward a Gaylegal Agenda” (1992) 102 Yale L. J.333.CrossRefGoogle ScholarBoth Dworkin and Posner, in their opposing ways, make too great a distinction between the empirical realm and the political-moral realm; the two must be considered together and often, in fact, ‘slide into’ one another.