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In Lawrence v. Texas (2003), the U.S. Supreme Court recognized a right to choose homosexual relations and relationships. Same-sex marriage bans unconstitutionally burden this right because they have the purpose and effect of channeling individuals into heterosexual relations and relationships. Bisexuals are in the best position to raise this claim because they share homosexuals’ interest in the freedom to choose same-sex partners, yet are more easily steered toward different-sex partners by marriage’s enormous prestige and benefits.

An argument from bisexuality for same-sex marriage refutes on normative rather than empirical grounds what this article calls “the politics of containment,” a politics fueled by the fear that recognizing gay rights will increase the popularity of “homosexual lifestyle choices.” To date, gay rights advocates have accommodated this fear by erasing bisexuality and obscuring the erotic choice bisexuality represents. In same-sex marriage litigation, this tendency manifests in three prominent equal protection arguments: (1) “the conduct-status conflation,” which casts laws that disadvantage homosexual relationships as discriminations against homosexual people; (2) “the claim of identity negation,” which holds that a homosexual’s right to marry heterosexually is no right at all; and (3) “the immutability excuse,” which pleads for heightened scrutiny on the ground that sexual orientation is inalterable. Each of these arguments, as presently articulated, is legally and strategically flawed.

There are several reasons, beyond legal plausibility, why the bisexual’s liberty-based claim is worth raising in same-sex marriage litigation. First, the argument gives voice to the real grievances of a large and neglected gay rights constituency. Second, by framing same-sex marriage bans as coercive as well as discriminatory, the argument honors the difference between liberating homosexuality and liberating homosexuals, advancing a universalizing conception of gay rights that may enable detection of subtler compulsions than marriage. Finally, by framing this civil rights imperative as a matter of sexual liberty, the argument develops a constitutional value that, in Lawrence’s words, “persons in every generation…can invoke in their own search for greater freedom.”

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San Diego Law Review

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