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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.

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