And what of the notion of "sexual orientation"? Scalia did acknowledge in his Colorado opinion that such a thing might exist. For example, he wrote that it was permissible for states to criminalize homosexual conduct (as it was in 1996) "surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. In the next sentence he suggests that "'homosexual-orientation' is an acceptable stand-in for homosexual conduct."
The notion that there are no homosexual people, just homosexual acts, is an ancient one. Until recently it was the attitude of the Roman Catholic Church. Scalia’s son Paul, a Catholic priest who has served as chaplain to Courage – “a spiritual support group to help those with same-sex attractions live chaste lives” – continues to resist the idea of a gay identity. He has written: “We must always distinguish the person from the attractions. Most errors in this area come from the reduction of the person to the attractions: to say, ‘A person who has homosexual attractions must be homosexual.’ This reduces the human person to the sum total of his sexual inclinations.”
In a 2005 article in the magazine First Things, Paul Scalia warned against the labeling of high school students as “gay” and even took the Vatican to task for using the term “homosexual person,” which, the younger Scalia said, “suggests that homosexual inclinations somehow determine, which is to say confine, a person’s identity.” Of course, this is a straw man; psychologists and other who speak of a gay identity don't argue that “gay” is an exhaustive description of an individual’s personality traits, only that there is more to being gay or lesbian than participation in sexual acts.