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?

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  • Dick Mills

    I am of the opinion that at least part of the Boies/Olsen strategy should be that the imposition of bans on marriage equality are, in fact, a violation of our religious freedoms. By forcing everyone to adhere to the religious tenet that “gay is evil,” does, in effect, codify religious beliefs (theocracy) into law – and it should be easy to argue that it’s a clear violation of church/state separation, and impinges on the religious freedoms that all of us should be free to enjoy.

  • Flex

    Religion is so pathetic. Which activist judge granted that group strict scrutiny protection? I won’t attempt to convince a bible thumping moron that human sexuality is not a choice. They don’t have the slightest understanding of their own sexuality, so why would they understand ours?

    We need to support national sex, gender, sexuality, and health education now. Children can handle it, religious zealots cannot!

  • John K.

    First, the Alliance Defense Fun is the anti-gay opposition, not Bois and Olsen’s group.

    Secondly, a constitutional ruling the gays cannot be discriminated against would only apply to the government. We would still need ENDA to cover private employers, who would still be free to discriminate even under a pro-gay constitutional ruling.

  • terrwill

    I kind of remember in school a bunch of guys a long time ago put a bunch of names on a document. They included something in that document something about “separation of church and state”. It seems that over 200 years ago these men had the forsight to see how twisted and disruptive religion actually was…….maybe it had something to do with their dealing with recent burning people (including gays) at the stake for being “witchs and warlocks”… know all part of “doing ones religous duty”………If these actions by Olsen and Boies are carefully watched by our side it seems like a huge plus for our side. I can only hope that Ted Olsen may have seen the light thru his loss on 9/11 and renounced his previous ties with the right wing nuts…………..

  • Rick

    Freedom is about choices.

    CHOICE should be protected.

    Who I CHOOSE fuck or marry is only my business.

  • Wisconsin Gay

    We want sexual orientation to be a suspect class because it then requires a higher level of scrutiny on the government’s actions. This requires, however, that the group being discriminated against have an immutable trait, meaning they cannot change it.

    Though, I have always been fond of the argument that now that certain churches do recognize same-sex marriages that their freedoms are being curtailed.

  • The Gay Numbers

    And now you start to realize why they are not the right time to bring this case?

    They are right, by the way, to bring up the immutability argument because, as far as I remember, it is one of the integral concepts involved in equal protection analysis at the federal level. That is one must find an immutable trait when defining a class.

    The problem is that this is hard to prove at this juncture with sexual orientation because the necessary case law is not there. There was some glimmer of this case law starting to form at the state level because of the redefinition of immutable in the Iowa case, in which the Court there found immutable is not just proven something to be biologically immutable, but so hardwired into the psychological make up as to be a moot question about biology.

    But- there has not been any case law on this. None. And, again, yes that matters. You are asking the courts to make several logical leaps here. Logical as the courts see it. Once more, you are asking conservative courts, which has been trying to narrow equal protection analysis to find a new class under that analysis. Good luck, but I don’t see it happening.

    The sad part is that many gay white people are very delusional.

  • Chitown Kev

    @The Gay Numbers:

    Well, the idea being that “gay” is a “race.” Granted, if it was proven that sexuality were an immutable characteristic then technically that would be right. (i.e. you could also differentiate races according to “blood types” or even left and right handedness for that matter).

    People need to remember that what justified racial segregation for years was the extensive case law regarding “black” as “one drop of black blood” and a child being in a matrilineal line. And we all remember how long it took to overthrow all of that case law.

  • Charles Merrill

    Because this movement is fundamentally about the right to be sexual, it’s hard for the larger public and judges to see that as a moral issue. To prove the immutable trait issue brings it home to their lives as straight married people. They will scratch their heads and think, “I married the opposite sex because it was natural for me to do so, therefore natural for LGBT’s to choose same sex partners they love”,

  • Chitown Kev

    Like Wisconsin Gay though, the idea of religious discrimination on the grounds that in NOT honoring same-sex marriages performed in churches, the government is, in fact, endorsing certain religious beliefs is also very attractive and, possibly, may even work. I think that several courts have rejected the “marriage as tradition” argument.

  • Charles Merrill

    If they present the biological argument and the judge rules favorably establishing case law, then this will be the most important case in LGBT legal history.

  • The Gay Numbers

    @Charles Merrill: The key word in your sentence is “IF” and that if is likely not to happen given again the fact the court is packed with conservatives who just a few weeks ago said it does not matter if a man is guilty or inonocent or not when it comes to the death penalty. The same court you are asking to buy your ‘if’ also found limited existing civil rights laws. More over, 4 of the justices are clearly against any extension. Seeing the picture now, or do you want me to continue with the facts versus the faith that passes for facts from the gay community who keep tauting this case as a good thing?

  • The Gay Numbers

    @Chitown Kev: It is not just race that is considered immutable. it also includes things like gender, which is also given a heighten intermediate scrutiny by the courts. But these laws all came about under very liberal courts. The structure of the jurisprudence is over 40 years old. In other words, it all predates the present conservative packing of the court over the last 20 to 30 years. Indeed, several of the justices probably believe as some of my conservative colleagues in law school did- they believed although the outcome of brown v board was right, it was poor law because it expanded rights in a way that the constitution did not require, and encroached on states rights by so deciding as the court did. I remain, as you can tell, very pessmistic about the outcome here. I think the case is premature by 3 to 5 years. My hope is that things like ENDA will help form some kind of precedential value, but ENDA could just as easily form a basis for deciding against gays by saying “see there is a political proces, and thus equal protection expansion here is unnecessary.” Since we need 5 of the remain justices, all they need is any one of the 5 to buy that argument to derail any progress and in fact lead to stagnation of rights for decades.

  • Chitown Kev

    @The Gay Numbers:

    See, you know the law better than I do, so in instances such as this, I would defer to your judgment although…

    I really don’t know how Anthony Kennedy would rule on this. Conservative, yes, but he also looks at history, is concerned about his place in history, and is not above looking at international law precedents.

  • The Gay Numbers

    @Chitown Kev: I don’t know how he would rule either, but that’s somewhat the point. We don’t even have a guarantee strong 5. We have maybe 4 and possible 5th. They have definite 4 conservatives No, and all they need is one more. While we are at it, no one has any idea how Stomayor will vote. Whether her Catholic background will get in the way. Etc. So, that’s another questionable vtoe. We also have no idea wheter the remaining 3 will be there. One, the most liberal an dlikely yes vote on extention probably will bel eaving soon as well. There is every likelihood given the chicken shit that is Pres Obama on doing the right thing will nominate a moderate rather than liberal replacement. Should I go on? I hope not. The point is that we are placing a lot of hope on a perfect storm that’s even worse than the court in CA S. Ct. At least there, In Re Marriage had indicated some propensityy to vote in our favor. Here, everyone rests their believe on Kennedy because of the thin reed of his not wanting to criminalize us. Not a whole lot to go on.

  • Chitown Kev

    @The Gay Numbers:

    “We have maybe 4 and possible 5th.”

    Yeah, this ain’t a game of spades!

  • The Gay Numbers

    @Chitown Kev: Part of being a good lawyer is taking your emotions out of it. So when I am discussing the strategy I am talking about it like it is a game of spades or whatever other game metaphor you can think of. I am asking myself – okay emotions aside, what are the chances? Here I say they are not so good for our team.

  • 1EqualityUSA

    In applying the California Constitution’s equal protection clause, on the ground that there is a question as to whether this characteristic is or is not “immutable.” Although we noted in Sail’er Inn, supra, 5 Cal.3d 1, that generally a person’s gender is viewed as an immutable trait (id. at p. 18), immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes. California cases establish that a person’s religion is a suspect classification for equal protection purposes (see, e.g., Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 128; Williams v. Kapilow & Son, Inc. (1980) 105 Cal.App.3d 156, 161-162), and one’s religion, of course, is not immutable but is a matter over which an individual has control. (See also Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 292 [alienage treated as a suspect classification notwithstanding circumstance that alien can become a citizen].)

    Because 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.

    Read the decision here:

    Clearly, immutability is not the issue here, the central issue here is equal protection under the constitution.


    Any man, be he straight or gay, has an equal right to marry a woman (with some restrictions that apply equally to all) and any woman, be she straight or gay, has an equal right to marry a man (again, with some restrictions that apply equally to all). There is no discrimination, no inequality.”

    This is such twaddle. The Iowa ruling slammed this warped mindset in it’s ruling:

    It is true the marriage statute does not expressly prohibit gay and

    lesbian persons from marrying; it does, however, require that if they marry,

    it must be to someone of the opposite sex. Viewed in the complete context of

    marriage, including intimacy, civil marriage with a person of the opposite sex

    is as unappealing to a gay or lesbian person as civil marriage with a person

    of the same sex is to a heterosexual. Thus, the right of a gay or lesbian

    person under the marriage statute to enter into a civil marriage only with a

    person of the opposite sex is no right at all.


    As for harming marriage, similar arguments were shot down in Massachusetts. Your moral beliefs cannot strip others of contractual protections. We should not have any “onus” or burden, or any other hoop to jump through to justify our existence. We are American citizens and many disagree with your beliefs. There are over 1300 rights that we are being denied because of other peoples’ beliefs. This persecution has gone on long enough and we are not tolerating “outsider status” any longer, just to satisfy your comfort level. The government’s ENDORSEMENT of one group’s values, especially if others that don’t hold those views, is COERCION. Your unfounded fears didn’t prove to have a legitimate secular purpose and it failed, hence, gay marriage.

    Separation of church and state prohibits religious favoritism and cannot promote one religion over another.

    In regard to passing judgement in cases where separation of church and state is concerned, tests are set up.

    1) the Lemon test, named after Alton J. Lemon from a Supreme Court case (1971)

    2) O’Connor’s Endorsement test

    3) Kennedy’s Coercion test

    If any of these three tests are violated, the law is deemed unconstitutional. The same sex marriage ban would be endorsing one religious view over many others, thus creating exclusionary v. Inclusive types of religious doctrine. Such a ban would coerce individuals to support or conform to a specific religions. This government entanglement is unconstitutional.

  • 1EqualityUSA

    Dr. Martin Luther King:

    “We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was ‘well timed’ in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word ‘Wait!’ It rings in the ear of every Negro with piercing familiarity. This ‘Wait’ has almost always meant ‘Never.’ We must come to see, with one of our distinguished jurists, that ‘justice too long delayed is justice denied.’”

  • 1EqualityUSA

    If religion should be the standard to which every American is subject, then which religion? In the future, if the world’s second largest religion, the Islamic religion, is favored and the population in the Islamic community grows substantially higher, should Americans then be subject to the concepts and laws of that particular religion? If religion comes down to a vote, to which religion should the laws of the land ascribe? If a sudden population explosion take place in people who believe in Buddhism, should the laws of the land fall under the rules of that religion? Jefferson was so wise. Separation of church and state is good for believers and non-believers alike.

  • 1EqualityUSA

    Studies have shown that couples fare better than single people, when it comes to health, wealth, stability, and fidelity. If pairing is so good for people, denying gays the right to pair off in contractual unions seems counterintuitive, even cruel. If marriage is good for couples, it’s good for society as a whole. Should those born gay be ineligible for such a healthy, stabilizing, happy relationship? Equal means equal. Damage done to the sanctity of marriage has been done long before gays opted for equality. If NOM really was concerned about the sanctity of marriage, more emphasis would be placed on protection of women from abuse, infidelity, spur of the moment marriages from youngsters with no impulse control, divorce, and on and on. Most of the gay couples I know have been together for years and years. They don’t stray. They work hard, pay for college, pay taxes, vote, buy houses, start businesses, create art, save lives, and genuinely enjoy their pursuit of happiness. Who has the right to say that these American citizens are not worthy of committed marriages? Will the rancor subside when it is proven, beyond a doubt, that there is a genetic component, a biological component to one’s orientation? Will the judgmental finger pointing and painful rhetoric cease? Who has the right to say which families will have benefits and which will not? Who has the right to say that the children of same sex parents deserve fewer stabilizing protections? People are gay and that is not going to change. Would you rather people stayed in the closet and lived an outward lie? That’s dishonest. It’s possible, but dishonest. Be yourself, your truthful self, just as God made you and don’t let someone else’s discomfort about your difference make you lie to the world. Be honest and treat others well. Have integrity and show patience when angry, homophobic people taunt. Fear is their weapon of choice. Disprove it with civility.

  • jason

    Sexual orientation – as defined by feelings and attractions – is not a choice. Sexual behavior – as defined by the acting out of feelings and attractions – is a choice but it is a natural and healthy one if it is based on sexual orientation.

    If sexual behavior descends to the level of fetish and promiscuity, then it isn’t natural and healthy so much as narcissistic and self-defeating.

  • 1EqualityUSA

    Would God rather we hide who we are, outwardly lie about our sexual identities, enter into empty marriages with these secrets, and not be truthful? Gays are lumped into one, big, amorphous category of sin by others who sin on a daily basis. Women don’t want to be solely defined by their sexuality, a very small part of a being’s personhood. What makes you think that gays want to be defined solely by this very small aspect of our being? God knows the truth about every person breathing, so to “pull off” a fake heterosexual life for the sake of being loved and accepted by humans (of this day) is not only dishonest, but pathetic. It is dehumanizing to sum up people based on this very small aspect of their personhood. Have integrity and don’t let anyone tell you that God hates you. God will likely consider that the worse offense. Be honest and truthful.

  • schlukitz



  • Popsnap

    I do, truly believe this will end favorably for us. Say what you will, but America has always prooved itself time & time again to be a leader in civil rights- the main obstacles are backwards rednecks and religious nutjobs.

    I don’t see how they couldn’t rule favorably , because there really is no good governmental interest furthered by denying gay couples marriage liscenses.Also, I’ve seen MANY conservatives such as Olson (Boies?), including my grandfather who is a constitutional scholar, that agree gays legally have the right to marry. I seriously, seriously doubt that it will even be close.

    I truly beleive within 10 years, marriage equality will be a reality in USA, and yet again we will be able to call ourselves a bastion of freedom and mark it down in the history books as we always do.

  • Brian

    This case is about the “truth.” Let’s leave it at that.

  • The Gay Numbers

    @Brian: LOL- that was funny.

  • Charles Merrill

    @Charles Merrill:
    It’s a great case and we need straight conservative lawyers to argue for us. Who can deny asshole Ken Star’s power before the court. LGBT lawyers just don’t carry the same weight in front of a panel of judges. I stated the need for straight lawyers to represent us on the listserve Queerlaw 10 years ago, and was told to get the fuck out.

  • schlukitz

    @Charles Merrill:

    I tend to agree with you, Charles.

    I too think straight lawyers can make a more convincing case in court, since they are not arguing from their own limited, sexual point of view.

    If I were a str8 judge with any hint of bias toward gay men, I would find myself more inclined to listen to the point of view of a straight man arguing the case for the civil-rights of a minority group than I would I would hearing out a lawyer who he might not consider to be the epitome of masculinity.

    It’s stupid, I know. But, that’s the way it it, unfortunately. We have to play the cards we are dealt.

  • Greg

    What I don’t understand is why none of the legal strategies on the Prop 8 case point to the 2 class of gays that we now have. There are the haves and the have nots. Gays that are legally married and gays that cannot be married. Clearly even within the same sub group people are not being treated equally.

    How can that possibly be legal? If only some blacks could marry or only certain religions could marry would anyone have a legal problem with that?

  • schlukitz


    There are dozens of similar questions any thinking person would have to raise with respect to the inequality that exists, not only between heterosexuals and homosexuals, but also within our own LGBT community.

    I don’t understand either.

    Why are these questions not being addressed in a court of law?

    And now that Prop8 passed in California, why are the rights we have legally won in other states, being put up to a vote as is now being done in Maine and Iowa?

    What is the point of throwing so much money and fighting so hard to get a law passed in our favor, when it can simply be voted down by a referendum a year or two later? It all seems like a gigantic waste of time, money and effort.

    I just don’t understand what is going on within our legal system anymore? This is not the Government 101 class that I took in high school.

  • Chitown Kev


    The referendum process has always been there for all states; there’s actually a chart about all the different ways to get a binding referendum on the ballot. In Illinois, for example, it’s next to impossible to get a binding ballot initiative, as it is in the East. it has to go through 2 legislative sessions in Iowa.

  • Sam

    @Greg: What I don’t understand is why none of the legal strategies on the Prop 8 case point to the 2 class of gays that we now have.

    Because that would be a prudent, strategic way to approach overturning Prop 8 and Olson/Boies are NOT interested in that. They want to go to SCOTUS with an extremely risky all-or-nothing approach that will either overturn every single law banning same-sex marriage in the whole country (and probably provoke a new, highly motivated campaign to amend the U.S. Constitution to ban same-sex marriage) OR fuck every same-sex couple in the country until SCOTUS will take up the issue again (likely 15-25 years).

    I HOPE they win, but either way, it’s an extremely risky arrogant gamble to take with all our lives, especially for two straight dudes who won’t have to live with the consequences.

  • Popsnap


    Yeah, but those two straight dudes are BEASTS in the courtroom. I believe one of them won 45 out of the 50 cases he brought before the Supreme Court.
    He says he knows what he’s doing, and I will trust him, until we win or loose. There’s really no other choice, they’ve filed the case and we cannot stop it.

  • 1equalityUSA

    @Popsnap: Dear Popsnap, I liked your post. Part of me really believes it. Now that straight people are refusing to marry until we all can marry, I think the tide is turning and NOM-skulls are going to look like jerks in a matter of years. National Boycott of Marriage is kicking off in colleges and word is getting out. This Country amazes me. Keep up the positive thoughts. Equality is inevitable.

  • 1EqualityUSA

    College kids who are straight are joining National Boycott on Marriage and refusing to partake in the 1300 rights afforded to hets, not until everyone can be married. Straights are starting to join in this fight for equality. The tide is turning on this bigotry. I would be willing to bet that the republicans allow thumpers to do their damage in order to remain fiscally free of the burden of equality.

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