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Gay pride and prejudice

The federal case on Prop. 8 could get ugly, with every canard about homosexuality being put on trial.

August 30, 2009

The issue before a federal judge in January will be same-sex marriage in California and whether the 14th Amendment to the U.S. Constitution, with its guarantees of equal protection and due process of law, prohibits Proposition 8 and other bans on the right to marry. As a constitutional case, it will involve its share of arguments about meeting legal tests for various levels of judicial scrutiny and whether homosexuals constitute a "discrete" group. Dry stuff indeed, and yet the lawsuit against Proposition 8 also threatens to be an emotionally wrenching case about the nature of homosexuality, just as the proposition itself was one of the most rancorous and divisive issues to face California voters in recent years.

Is sexual orientation inborn or a choice? Can it be changed? If so, should it be changed? Do gay and lesbian partners make good parents? As good as straight parents? Do homosexuals contribute as much to society as heterosexuals? Would their marriages harm the unions of heterosexual couples and the institution of marriage? As the case unfolds, it could pose those and other questions, presenting an opportunity to debate seemingly every prejudicial canard about gays and lesbians. And what's especially disheartening is that it is the plaintiffs -- those seeking to end the state's ban on same-sex marriage -- who may force the debate for the purpose of dismissing those tired biases and strengthening their constitutional argument.

In legal filings this month, attorneys seeking to overturn Proposition 8 indicated that they would bring in expert witnesses to testify that sexual orientation is inborn and immutable, that homosexuality is not considered a disorder by the psychological or medical establishments (the American Psychiatric Assn. took it off the diagnostic list 36 years ago) and so forth. The testimony is intended to show that homosexuality deserves the same high-level constitutional protections as, for example, race.

That's understandable, given that members of a racial group are the most familiar example of a "discrete and insular" minority deserving of judicial protection. But homosexuality need not be innate or unchangeable for gays and lesbians to deserve equal treatment under the Constitution. Religious minorities, for instance, enjoy full constitutional protections, even though they are free to convert to other faiths. Indeed, a famous footnote in a 1938 Supreme Court case specifically recognized that laws intended to discriminate based on national origin or religious faith might offend the Constitution just as those that target groups by race. It is no less offensive morally or legally to discriminate against Catholics, who choose their faith, than it is to discriminate against blacks, who are born to their race.

Because of that, gays and lesbians need not prove that their sexual orientation is a matter of genetics in order for the Constitution to protect their equality. Nor is that the stronger tactic; both sides can bring forth expert witnesses to press their claims in this area. Yet, as absurd as it is to argue that sexual orientation is a matter of simple choice, lawyers defending the proposition have made clear that they intend to offer precisely that argument. In so doing, they threaten to trivialize discrimination against homosexuals by implying that gays and lesbians could end it merely by changing their sexual orientation.

It's could get ugly, but then that's to be expected. As Californians well remember, the political and legal debates over gay marriage already have exposed raw emotions and featured willful, hateful distortions. During last year's campaign, there were assertions that only married heterosexual couples could raise truly well-adjusted children -- a claim that ignored nontraditional families, including same-sex parents and single parents, who were successfully raising fine offspring. Commercials for Proposition 8 wrongly implied that same-sex marriage would somehow harm traditional marriages; that religious groups would be forced to conduct same-sex wedding ceremonies; that schools would have to teach a pro-homosexual curriculum in elementary grades; and that faith-based adoption agencies would go out of business. The campaign against the initiative never responded effectively to these deceptive claims; the trial, it appears, might offer a supervised forum for knocking them down.

Whether the lawsuit prevails in court is another matter. The U.S. Supreme Court has never ruled that the Constitution protects the right of same-sex couples to marry, and given the present composition of the bench, it may well decline to do so if it ever has occasion to review the constitutionality of Proposition 8. But two high court decisions at least imply that a majority of this conservative group of justices -- until the appointment of Sonia Sotomayor, seven of the brethren owed their positions to Republican presidents -- acknowledges that sexual orientation is not a "preference."

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