- Gentlemen, start your drones: Judge’s ruling opens door for commercial use
- Soldier who hid, bragged about not saluting flag to be punished — in secret
- ‘Maverick’ of the seas: ‘Top Gun’ school for U.S. ship officers to launch
- Putin declares Sochi Paralympics open amid Ukrainian protest
- ‘In Jesus name, we pray’ sparks ire at Ohio council meeting
- Navy’s first laser weapon ready for prime time; drone killer to deploy this summer
- Billionaire backer: Rick Santorum ‘needs to be heard’ in 2016
- Obamacare fallout: 49 percent pessimistic; 45 percent ‘scared’
- DHS accused of holding U.S. citizen at airport, using emails to pry into her sex life
- Seattle socialist: Minimum-wage discussion skewed by ‘right-wing’ GAO analysis
Born this way? Five court cases will put focus on gay identity
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.
© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.
About the Author
Cheryl Wetzstein covers family and social issues as a national reporter for The Washington Times. She has been a reporter for three decades, working in New York City and Washington, D.C. Since joining The Washington Times in 1985, she has been a features writer, environmental and consumer affairs reporter, and assistant business editor.
Beginning in 1994, Mrs. Wetzstein worked exclusively ...
- Public accommodations provision in Md. transgender rights bill draws outcry
- German home-school family can stay in U.S. indefinitely
- U.S. Supreme Court declines German home-school case
- Medical facility 'buffer-zone' law in court
- Relationship video sparks backlash, blames the birth control pill
Latest Blog Entries
- Gay therapy ban author seeks Calif. House seat
- Transgender 'bathroom law' gets 5,000 more signatures
- Pro-life, stem-cell bill signed into law by Kansas Gov. Sam Brownback
- N. Dakota lawmakers approve tough abortion bill
- Pope Benedict XVI's successor should allow priests to get a new title: Husband, poll finds
TWT Video Picks
Taxpayers must pay the freight for over-budget train projects
- Kim Jong-un calls for execution of 33 Christians
- Rand Paul wins 2014 CPAC straw poll, Ted Cruz finishes a distant second
- Bill Clinton cashes in on struggling nonprofit hospital
- Vietnam says it may have found door of missing Malaysian jet as intel look into stolen passports
- CPAC 2014 straw poll results
- Bill Clinton poses for photo with Bunny Ranch prostitutes
- PIPES: Islam's inadvertent adverse effects on adherents
- CARSON: Why did the founders give us the Second Amendment?
- Italy outraged over U.S. gun dealer's 'David' ad
- WEBER: Obamacare cuts home healthcare for millions of seniors
Pope Francis meets his 'mini-me'
Celebrity deaths in 2014
Winter storm hits states — again