07/05/2012 05:32 pm ET | Updated Feb 02, 2016

Sexual Orientation and Civil Rights

At its recent annual meeting in New Orleans, the Southern Baptist Convention overwhelmingly adopted a resolution declaring that marriage equality is not a civil right. This resolution was introduced by Dwight McKissic, an African-American pastor of a megachurch in Arlington, Tex. Even though the sponsor was a black preacher, the resolution was adopted by thousands of white people. In advocating for his resolution, McKissic stated, "They're equating their sin with my skin."

In recent years there have been recurring efforts by the religious right to restrict the notion of civil rights to those issues associated with the black civil-rights movement of the 1960s. But the civil-rights acts passed by congress in the '60s did not restrict equal protection under the law to racial minorities. The 1964 act extended protection to women, and the 1968 act included race, creed, and national origin. The U.S. Constitution, of course, includes protections of other civil rights. What is at issue here are the protections that have been linked by judicial decision to the equal protection clause of the 14th Amendment. In raising the issue of his skin color, McKissic would appear to be making a claim that biological characteristics are the legitimate basis for this type of civil right.

There are four criteria for classifications that are considered legally "suspect" and warrant more scrutiny:

  1. The group faces discrimination and stereotyping

  • Immutable characteristic
  • Political powerlessness
  • The characteristic that defines the group doesn't prevent it from contributing to society
  • The notion embodied in immutability is that to discriminate against people on the basis of some characteristic that they are powerless to change is to deny them equal protection of the law. Of the protected classes mentioned above, race, gender, and national origin are considered to be immutable characteristics. Creed derives its protection from the first amendment and is thus not required to be immutable. Judge Walker's decision in Perry v. Schwarzenegger was the first decision in a U.S. federal court to establish protection for sexual orientation under the equal protection clause. In his findings of fact, he found sexual orientation to be an immutable characteristic. This case, along with other federal cases dealing with marriage equality, are presently working their way up the appellate ladder. Equal protection and immutability will inevitably be significant issues in the proceedings and opinions.

    It seems worth exploring what information about sexual orientation might come to bear on the question of immutability. Most people have an intuitive sense that their own sexual orientation is fixed and unchanging. However, they may or may not think that about other people's sexual orientation. One important question is just what is the present state of medical and scientific knowledge on the subject. One comes across various claims in the media and on the Internet. Here is a summary of the positions of three leading medical associations, from Wikipedia:

    The American Academy of Pediatrics has stated that "sexual orientation probably is not determined by any one factor but by a combination of genetic, hormonal, and environmental influences."[38] The American Psychological Association has stated that "there are probably many reasons for a person's sexual orientation and the reasons may be different for different people". It further stated that, for most people, sexual orientation is determined at an early age.[39] The American Psychiatric Association stated: "To date there are no replicated scientific studies supporting any specific biological etiology for homosexuality. Similarly, no specific psychosocial or family dynamic cause for homosexuality has been identified, including histories of childhood sexual abuse."[40]

    The claims that sexual orientation is genetically determined are not presently supported by anything that would qualify as firm scientific evidence. However, what is of immediate importance here are the findings, strongly supported by all three of the above medical associations, that so-called "conversion therapy" or "reparative therapy" programs, which attempt to alter the sexual orientations of people who are homosexual or bisexual, not only are ineffective at accomplishing this objective but can cause significant psychological harm. There is a strong consensus that sexual orientation is established early in life, and that it most likely immutable. It was on this medical position that Judge Walker based his finding of fact.

    The religious right, which opposes all protections for people of minority sexual orientations, vehemently disagrees with this. They demand conclusive scientific proof of a biological cause. Of course, they are also the people who are still demanding proof of evolution. If it were just a matter of trying to convince them, we might just as well give it up as an impossible task and put our efforts into persuading more and more people to ignore them. However, establishing lesbians, gays, bisexuals as a legally protected class is an important goal in the quest for equal civil rights under the Constitution. The fact that Judge Walker made the finding that he did is no guarantee that other federal judges will make the same finding. He used what might be described as a liberal standard. There are not yet binding precedents on the issue. It is the opinions of the Supreme Court that will ultimately decide it. It doesn't require much to imagine justices like Scalia and Thomas demanding more stringent litmus tests.

    The Wikipedia article "Biology and Sexual Orientation" provides a useful overview of recent reports of scientific studies in the field. There have been several investigations dealing with chromosome linkage. These are by no means consistent in the findings that they report. They do provide indications of certain areas on the X chromosome that warrant further study. Popular media reports that have claimed the discovery of a "gay gene" are seriously inaccurate and deceptive.

    There have been several studies of homosexuality in twins. These provide a glimpse of the complexity of the various factors that plausibly play a role in determining sexual orientation. Studies testing the probability that if one twin turns out to be homosexual, the other twin will show the same sexual orientation, produce widely varying results. The probabilities they've found have ranged from 7 percent to 50 percent for identical twins. These studies do not offer strong support for a specifically genetic cause. Identical twins start with identical genomes, so if genes are fully determinate of sexual orientation, identical twins should have 100-percent correspondence. Identical twins share similar intrauterine environment environments, but they are not always the same. For example, some of them share the same placenta, and others have separate placentas.

    It is the intrauterine environment environment that appears to play a likely role in the development of several basic aspects of sexuality. Between the sixth and 13th week of pregnancy, the fetus undergoes a process of sexual differentiation. In a male (XY) fetus the presence of certain fetal hormones triggers a pathway of male development. In the absence of such a trigger, the fetus follows a pathway of female development. Complications in this process are a major cause of intersex conditions. There is a good bit of scientific speculation that it is also during this process that characteristics such as sexual orientation and gender identity are formed. This provides a useful context in which to interpret the studies that have reported brain structure differences.

    This brief overview suggest that scientific research about sexual orientation is in a fluid state. There have been very interesting findings that suggest promising avenues for further investigation. There is not a lot that can be considered as firmly established scientific fact. This information will continue to be discussed and debated. One important place where this debate will occur is in court cases dealing with the civil rights of LGBT persons. There are large areas of this country where LGBT equality will not come by majority vote in the foreseeable future. It can only come to pass, as it has for other minorities, by judicial intervention.