01/04/2009 05:12 am ET | Updated May 25, 2011

Civil Rights for Gays: Does "Immutable" Really Describe Us?

The recent fallout over Prop 8 -- questions about whether African-Americans voted heavily to ban same-sex marriage -- points up a need to re-examine the basis of LGBT people's demand for civil rights. In recent decades, we have trended towards comparing our battle to that of African-Americans. Some African-Americans, especially the churchgoing conservatives who don't approve of homosexuality, voice anger over what they see as our attempt to co-opt their struggle and their history of slavery and pain. Yet we can point to our own history of oppression and pain.

What constitutes a "civil right," anyway?

In its time, the 1791 Bill of Rights was urgent and specific about the list of rights it wanted -- free speech, freedom of religion, freedom of assembly, freedom to demand redress, etc. Throughout the 1800s and into the 1900s, further amendments to the Constitution detailed further urgent rights -- freedom from slavery, freedom to vote for non-whites and women, etc.

But the Constitution and Bill of Rights don't give us a nice neat Websterish definition of "rights." For that we can go to the legal warriors who duke it out in today's courtrooms. According to, "A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury... Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class."

I agree that African-Americans have been unfairly accused of swinging the Prop 8 vote by themselves. However, it's clear that some of their anger against us comes from their feeling that we're "using" their cause. They, and many of our own activists as well, are defining civil rights differently than the lawyers do. They consider that a "right" has to be based on some "immutable [meaning unchangeable] characteristic."

Anti-gay African-Americans point out that they can't change their skin color, therefore they can't hide from prejudice and cruelty. Whereas (they say) we gay people can and do change our behavior, especially when we hide in the closet, or when we succeed in "going straight." Therefore, in their opinion, we don't qualify for civil rights. Yet many LGBT people counter with the assertion that we are born with our sexual orientation, that we can't change it even if we try. Hence the "ex-ex-gays" who leave their ministries and return to living an openly gay life.

How did "immutable" get to be some people's gold standard for defining civil rights?

Compelling Change

It started with the Civil Rights Act of 1964, which mainly took aim at injustices done to people of color and women. But as Congress moved to prohibit discrimination, it wrote several protected classes into the legislation -- race, ethnicity, national origin, religion or sect, and gender. Analysts began defining these protected classes by three criteria: (1) a long history of discrimination, (2) economic disadvantages, and (3) immutable characteristics.

Next, conservatives hatched the belief that all the 1964 classes depend on immutability -- even religion. In 2002, prominent religious-right lawyer Mathew Staver wrote, "Although religion is the sole category within the Civil Rights Act of 1964 that does not share the exact pattern of the immutable physical characteristics, the characteristic of immutability or inalienability is deeply rooted in the founding of the country and became part of the First Amendment to the United States Constitution."

Yet it's ridiculous to call religion "immutable," as we'll see.

When the gay-rights movement came along in 1969, we felt compelled to jump on that "immutability" bandwagon. We can prove #1 and #2 pretty easily. But #3 has prodded both supporters and enemies of LGBT rights into convoluted arguments about whether we do or don't fit the "immutable" criterium. Thus Mathew Staver felt able to proclaim loftily, ""Sexual orientation should not be elevated to the category of a protected civil right."

Our Founders' Intentions

But the ultraconservative legal eagles like Staver are wrong about our founders' list of rights being an expression of "immutability."

In the Bill of Rights, those earliest Constitutional amendments, none of the rights are based on any "immutable characteristic." In fact, those early rights start with the actions of colonists daring to make political and economic decisions that defied the British monarchy -- that chartered their own independent course -- in a word, that made some independent choices. And the rights mostly dealt with circumstances surrounding those brave new choices.

Free speech? It's hardly immutable. My speech is protected if I write this commentary today, and another one tomorrow, and I can change the subject I'm speechifying about. Ditto my right to have no troops quartered in my house, my right to a grand jury indictment, to a speedy trial, to freedom from excessive bail, from cruel and unusual punishment. These are all circumstances in which most people might find themselves just once in their lifetime -- but for that one time, their life might hang in the balance if they have no civil rights.

Freedom of religion goes way beyond circumstance... it grants us that choice that our founders cherished so much. Nothing is more potentially changeable than a person's religion! People often convert overnight, and turn their worlds upside down to go in a new direction. Personally I was illuminated to the fact of choice when I looked back at my own life. I was raised a Presbyterian, converted to Roman Catholicism at age 17, de-converted to an existentialist agnostic by age 20, and gradually wended away from religion to a robust paganism in my 30s. Am I required to have an unchanging and immutable belief in order to be protected? No way. At every stage, my change of thinking was protected by the First Amendment. The law even protects my right to have no religion at all, if that's what I choose to do.

Indeed, at the time the Bill of Rights was written, establishing a person's right to go from one religion to another without the threat of being killed or tortured -- for instance, to leave the Church of England and become a Quaker or Baptist or Freemason -- was one of the big goals of enlightened people in the American colonies.

Morphing Into "Mutable"

Since the 1960s, as Congress enacted other pieces of landmark legislation, their definition of civil rights has clearly moved onward from the "immutable" landmark.

The newer protected classes include: age, familial status, marital status, disability, veterans, and groups defined by DNA. All but one (DNA) are not based on "immutable characteristics." They are classes that Americans may join for only part of a lifetime. Examples: discrimination against both minors and old people. The same for disabled people who suddenly find themselves in that class as a result of illness or injury.

In spite of these recent trends, many LBGT ideologists insist on continuing to identify with the black civil-rights cause, because of the power and impact that it had. They assert that we too are born into the "immutable" class. With many in our leadership, this alleged "immutability" of ours is now a dogma. Unfortunately, the science jury has yet to return a verdict on the DNA of sexual orientation. Yes, there are studies that suggest genetic factors in sexual orientation. However, nothing is proven beyond all doubt.

Meanwhile our opponents can point out that we do sometimes change our behavior. I agree that it's unfair to cite our ability to conform when coerced by religion -- most people will conform to any dictatorship if they're terrorized enough. To me, the most telling evidence of our "mutability" comes from those LGBT people who change even when there is little or no external duress. In these cases, the pressure comes from within, from an inner realization that our nature, our sense of ourselves, is more fluid than we thought.

Most of us have known someone who first came out as staunchly gay or lesbian, then suddenly veered to being "bi" -- or who veered from bi to exclusively gay or lesbian. Cases like these don't involve coercion by ex-gay religion, yet they are far from rare. Someday, when all the scientific facts are in, they may reveal that both nature and nurture shape our orientation.

Then there is gender in our LGBT world. It, too, is anything but "immutable." Some of us challenge the gender identity inked on their birth certificate -- either because of physical or chromosomal variations that they were born with, or simply because they have a passionate will to be the opposite gender and are prepared to do whatever it takes to get there, including surgery. They want to be what they feel they really are, rather than what society says they are. In other words, they choose to change.

Choice vs. Chance

So my question is this: since the U.S. Constitution's amendments are so grounded on "civil rights" based on choice, why are we so determined to lock ourselves into the "immutable" class?

Why would it be so terrible to "choose" to be gay or lesbian or bisexual? The religious right insist on "choice" because it's their position that people "choose" sin. Yet they reserve for themselves the right to "choose" their religion, the political party they belong to, even the candidate they vote for. Shouldn't there be equal power and dignity for us in "choosing" our orientation, rather than being assigned an orientation by chance?

So, with all due respect to the Civil Rights Act of 1964, I think it's time for us to stop hanging onto "immutable characteristics" so hard. For some Americans, the benchmark 1964 definitions continue to serve those protected classes today. But our own interests may better be served by invoking the signature right of the Bill of Rights -- the right to choose.

After all, "life, liberty and the pursuit of happiness" wouldn't mean much without the freedom to choose that life, that liberty -- that happiness.