Actor Cynthia Nixon's recent comment that she considers herself gay by choice has been met with widespread attention and a bit of confusion. Some have speculated about how this way of thinking about sexual orientation could affect the pending legal challenge to Proposition 8. But as Miranda Hobbes, the smart lawyer that Nixon played on Sex and the City, would surely know, the fact that Nixon and others perceive some element of choice in their sexuality offers no reason to uphold Prop 8 -- or any other law that discriminates against lesbian, gay, bisexual, or transgender (LGBT) people.
When considering a constitutional challenge to a discriminatory law, courts first consider whether to apply what's known as "heightened scrutiny." If heightened scrutiny applies, the law will be presumed unconstitutional and struck down unless some very strong reason can be shown for upholding it. If heightened scrutiny doesn't apply, a much more lenient standard applies, and the law will be upheld if there's any rational justification supporting it.
Courts take several factors into account in deciding whether heightened scrutiny applies. One of the factors they have sometimes considered is whether the challenged law discriminates against a group on the basis of a personal characteristic that is "immutable." That's where the confusion starts. Let's try to correct it.
First, it's important to know that when courts talk about a characteristic as "immutable," they aren't talking about something that is genetically or biologically determined and completely impossible to change. Instead, they are talking about characteristics that are so deep-seated and fundamental to a person's identity that it is horrendous to think of being forced to change them. As the California Supreme Court explained in 2008 when it held that sexual orientation is immutable in the legal sense, "Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment."
Or, in the words of retired federal appeals court judge William Norris:
Scientific proof aside, it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation. Would heterosexuals living in a city that passed an ordinance burdening those who engaged in or desired to engage in sex with persons of the opposite sex find it easy not only to abstain from heterosexual activity but also to shift the object of their sexual desires to persons of the same sex?
Second, immutability has never been a prerequisite for subjecting discriminatory laws to heightened scrutiny. In fact, fully half of the classifications that the Supreme Court has recognized as requiring careful scrutiny are based on characteristics that are not immutable in any sense. Heightened scrutiny applies to laws that discriminate on the basis of religion, nationality, and legitimacy, even though religious people can convert, undocumented people can become naturalized citizens, and so-called "illegitimate" children may be adopted. These characteristics can be altered throughout one's life, yet the courts have carefully scrutinized laws that discriminate on these bases.
In the end, the key factor driving the courts' decisions about whether to strike down discriminatory laws has not been immutability but something more basic: whether a law discriminates on the basis of a trait that has no bearing on a person's ability to contribute to society. By that measure, Prop 8 -- and every other law that discriminates based on sexual orientation and gender identity -- should be history. We believe they soon will be.
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