The Immutability of (Homo)Sexual Orientation: Behavioral Science Implications for a Constitutional (Legal) Analysis

Abstract

The Supreme Court ruled in Bowers v. Hardwick that there is no fundamental right under a substantive due process analysis to engage in homosexual behavior. Therefore, the remaining constitutional route to protecting homosexuals against discrimination is the equal protection clause of the fourteenth amendment. For the highest level of protection there, a class of persons must be declared “suspect. ” To so qualify, the class should demonstrate, inter alia, that the trait for which it is stigmatized is immutable. Crowing research evidence exists for an innate origin of homosexuality. More importantly, whatever its origins, the low rate of sexual reorientation via psychiatric intervention satisfies the concept of immutability. The Court's criteria are met for applying the strictest of scrutiny to laws that discriminate against homosexuals.