- The Washington Times - Monday, February 25, 2013

Lady Gaga may belt out that gays are “born this way,” but questions about the origin and unchangeability of homosexuality are central to at least five lawsuits, including two before the Supreme Court next month.

A key argument in the battle over same-sex marriage is whether homosexuality is inborn and “immutable,” and whether gays, as a class of people, need special protection or “heightened scrutiny” from the courts on equal-rights issues.

Attorneys David Boies and Theodore Olson made these exact points in their new brief to the Supreme Court in Hollingsworth v. Perry, the California case challenging a proposition passed by state voters essentially blocking same-sex marriage.

“Because of their sexual orientation — a characteristic with which they were born and which they cannot change — plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s most precious relationships. They may not marry the person they love,” the attorneys wrote Thursday on behalf of the American Foundation for Equal Rights, an organization that seeks to overturn the state’s Proposition 8 and legalize same-sex marriage in the state.

“Sexual orientation is ‘immutable’ or beyond the group member’s control,” the brief added, one key reason that the high court should give heightened scrutiny to the gay respondents’ claims that they face discrimination under the Constitution.

Opponents of same-sex marriage reject the central premise of the challenge, countering that homosexuality is neither permanent nor inborn.

Thousands of individuals with unwanted same-sex attraction “have made the personal decision to leave homosexuality,” and this “ex-gay community” is receiving “growing recognition” in courts, government and business entities, attorney Dean R. Broyles wrote in his brief for Parents & Friends of Ex-Gays and Gays, in support of Proposition 8.

The brief tells the stories of two men and two women “who have done exactly what” a California federal judge said they couldn’t do: “They chose to change their orientation and now live in opposite-sex relationships despite having been deeply entrenched in same-sex relationships,” Mr. Broyles wrote.

A struggle to define

Science doesn’t agree on a definition for homosexuality, bisexuality or even sexual orientation, Dr. Paul McHugh, a psychiatry professor at Johns Hopkins University School of Medicine, said in a brief filed by Gerald Bradley of Notre Dame Law School in support of Proposition 8.

The high court should resist taking “the momentous step” of assigning “heightened scrutiny” to people based on sexual orientation, Dr. McHugh advised. A legally protected classification must be “discrete” and “determined solely by accident of birth,” like race or national origin. “Sexual orientation fails that test,” he said.

The Supreme Court is set to hear arguments on these issues March 26 in the Proposition 8 case, and March 27 in a separate case, Windsor v. United States of America. In the latter case, Edith Windsor of New York is suing to overturn the federal Defense of Marriage Act of 1996 because it blocked the federal government from recognizing her Canadian marriage to her longtime lesbian partner and cost her more than $363,000 in federal estate taxes.

The Obama administration, which has announced that it would not enforce the act because of doubts about its constitutionality, formally urged the high court to strike down the portion of the law barring the federal government from recognizing the rights of gays married in states where same-sex unions are legal.

The 1996 law “denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” the brief read in part. Because this discrimination cannot be justified as substantially furthering any important governmental interest, [the section] is unconstitutional.”

Many legal observers think that if the high court finds sexual orientation to be a protected class deserving of heightened scrutiny, the court will hand the gay clients victories and overturn both marriage laws.

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