prop 8

Olson + Boies Want to Prove Sexuality Is Not a Choice. Is That a Terrible Legal Strategy?


While California’s gay rights advocates are split between a 2010 and 2012 repeal effort, you’ve still got the Olson-Boies federal Perry v. Schwarzenegger lawsuit that’s attempting to overturn Prop 8’s damage. The means to the ends may differ, but both plans will live and die by strategy. Say what you will about the ballot repeal’s strategy being led by the same people who bungled No On 8, but when it comes to Olson-Boies, is their strategy wholly flawed?

In order to convince a federal audience that Prop 8 is unconstitutional by way of the 14th Amendment, Olson-Boies and their clients (under the umbrella American Foundation for Equal Rights) plan to bring in a string of expert witnesses to testify that being gay is not a choice; that it’s decided by biology; and it is not a disorder. How come? Because if they can prove we’ve had no choice in the matter — so the thinking goes — it’ll be easier to convince a judge that, like skin color, sexuality cannot be the basis for discrimination.

The only problem with that? Federal protections are not always tied to biology and things we don’t have choices about. Just look at religion: We’re technically free to adopt any set of beliefs we want, change them at any time, or keep the same ones forever. But that choice remains constitutionally protected. So to go to great lengths to prove that sexuality is not a choice (and counter the defense’s likely argument that it is), the Los Angeles Times argues Olson-Boies’ strategy risks levying an unnecessary burden of proof on its own claim.

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.

This is, perhaps, true! But we can absolutely understand from where Olson-Boies’ strategy arrives. Despite what we presume to be logic, many folks (federal judges among them) still do not see gays as a group of people worth protecting. If sexual orientation is fluid, as plenty believe, then why bother adding it to a list of groups that cannot be discriminated against? And thus: Proving that being gay, or straight, is not an option, that there is no on-off switch, is what securing our rights may ultimately rest upon.

And consider this: If a decision in Perry v. Schwarzenegger concludes that sexuality is not a choice and cannot be the basis for denying marriage rights, what we could end up with is a federal ruling that says, flat out, gay Americans cannot be discriminated against. And while we certainly expect Congress to pass ENDA before Perry wraps up, wouldn’t it be lovely to have both legislative decisions and court rulings backing the obvious?