Responding to claims that nonrecognition of same-sex marriage is discriminatory, Wardle says such arguments show a misuse of the term discrimination . Discrimination on the basis of gender or on the basis of race is quite different from discrimination on the basis of sexual practices. Many proponents of gay and lesbian rights have likened rulings disfavoring homosexuals to discrimination against blacks. Wardle calls the analogy inexact. Race is an immutable condition.
Homosexual acts involve behavior and choice.
The most aggressive studies of homosexuality, Wardle says, have provided only thin evidence showing at most a predisposition for homosexual behavior, and environment has been shown to have a much larger effect than biology. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument. The question, Wardle says, is whether there is a civil right to engage in homosexual activities and whether there is a right to have those activities given the status of marriage. There are some actions and behaviors that are strongly preferred, he says, and the law prefers them by allowing them special advantages and status.