Guest Post by David I. Levine
Amid discussion of the Supreme Court’s recent decisions regarding gay marriage, one heard reprised a familiar topic of contention: whether being gay was a genetic fate or a lifestyle choice. For many on both sides of the controversy, it appears that the answer to that question determines whether gays ought or ought not to be granted the special constitutional protections we grant to, say, racial minorities. Yet, we also grant constitutional protections to groups of people who are clearly choosing to be what they are, say, religious minorities. What, I wondered, is the legal history of this issue, whether constitutional protections depend on “immutability”? So, I asked David Levine to enlighten us. Levine is Professor of Law at the University of California, Hastings College of the Law, San Francisco.
My intent in this short essay is to show why the question of whether sexual orientation is hard-wired, i.e., immutable, can matter legally. In brief, it matters because the Supreme Court has said it can. But even then, the Court has not yet definitively told us how much.
In most instances, to pass constitutional muster, government legislation or regulation merely must be rationally related to furthering a legitimate governmental purpose. For example, the Court held that Obamacare was constitutional because it decided that the law was rationally related to the exercise of Congress’s power to tax. However, if a law or governmental action targets a “suspect class” — a kind of minority, such as African-Americans, needing special legal protection — then courts apply heightened constitutional scrutiny to any laws or action that particularly affect them. Courts require at a minimum that the classification be closely related to an important (even a compelling) governmental goal. The Supreme Court recently reaffirmed this principle in the University of Texas affirmative action case, when it toughened limits on the use of race-based admissions, requiring more justification for using race to achieve the legitimate government goal of diversity.
What is Suspect
The modern origin of “heightened scrutiny” is usually traced back to a 1938 U.S. Supreme Court opinion about the shipping of milk products in interstate commerce. Justice Harlan Stone wrote the famous footnote 4 in which he stated that, although the legislation in question was properly reviewed under the “rational basis” test, that might not be so in other circumstances. He specifically noted cases in which “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”
Thirty-five years later, the Court addressed the use of heightened scrutiny regarding women. A female member of the armed forces sought to have her husband classified as a dependent for purposes of obtaining better benefits.  Ruth Ginsburg, then working as a lawyer for the ACLU, argued this case. Eight members of the Court agreed with Ginsburg, but critically, a four-member plurality used the grounds that women should be treated as a “suspect class.” (The other four justices would have used narrower grounds.) One important reason Justice William Brennan offered for reaching this conclusion was that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”.
As a result of such cases, in order to determine whether any class of people is entitled to the protection of heightened scrutiny as a suspect class, the Supreme Court has taken several factors into account, including: (1) the history of invidious discrimination against the class that is burdened by the legislation (e.g., the history of discrimination against women); (2) whether the characteristics that distinguish the class indicate a typical member’s ability to contribute to society (e.g., age might indicate that someone is capable of voting or serving in the military); (3) the political power of the subject class (which makes it less vulnerable); and (4) whether the distinguishing characteristics are “immutable” or beyond the members’ control.
Courts have considered, but have not yet reached a consensus on, whether sexual orientation should be designated a suspect class, due the protection of heightened scrutiny. For example, in the case which triggered the passage of Proposition 8, the California Supreme Court held that sexual orientation should be considered a suspect class under the California Constitution, even while acknowledging that most other courts had taken the opposite position in part because there was at least a question as to whether sexual orientation was immutable. The California Supreme Court noted, however, that immutability was not always a requirement, as in the case of religion. Therefore, “[b]ecause a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.” In effect, the California court avoided the immutability issue by holding that “integral” replaced “immutable” as a prerequisite to suspect class status.
The U.S. Supreme Court did not directly address the immutability question in either of June’s same-sex marriage cases. The Court simply dismissed the Proposition 8 case because its defenders had no standing to appeal. In striking down the federal portion of the Defense of Marriage Act, Justice Anthony Kennedy, the key decider, did not directly address the question of whether sexual orientation should be deemed a suspect class. (Instead, he focused on the importance of marriage and the fact that states traditionally determined who could be married.)
The Court has thus left open the question of whether sexual orientation is entitled to heightened scrutiny under the U.S. Constitution. This issue undoubtedly will return to them, perhaps as part of the question of whether a state can ban same-sex couples from fostering children or whether a person can be denied the right to serve on a jury because of sexual orientation. These cases may then force the Court to decide how important the immutability of sexual orientation really is, legally. Until it does, the question of the actual immutability of homosexuality will remain fodder for consideration in legislatures, lower courts, and among the American public.
 United States v. Carolene Products Co., 308 U.S. 144 (1938).
 308 U.S. at 153 n. 4.
 Frontiero v. Richardson, 411 U.S. 677 (1973).
 411 U.S. at 686.
 In re Marriage Cases, 43 Cal.4th 757 (2008).
 43 Cal.4th at 842.
 Hollingsworth v. Perry, 2013 WL 3196927 (2013).
 United States v. Windsor, 2013 WL 3196928.