The California Court of Appeals had previously ruled that sexual orientation was not a suspect classification, because it is not an immutable characteristic. John Witte Jr., director of the Center for the Study of Law and Religion at Emory University, agrees with the prior ruling of the appeals court.
"In a 121-page opinion," Witte told CT, "the [California Supreme] Court does not offer a single shred of scientific evidence to prove its assertion that sexual orientation is a natural trait or immutable characteristic like race and gender."
However, Chief Justice Ronald George, who penned the majority opinion for the court, argued that immutability is not "required in order for a characteristic to be considered a suspect classification," citing previous California cases that treated religious affiliation—also not immutable—as a suspect classification.I found their discussion disappointing. Of all people, they should know that "immutable" has a long history in Western discourse as a divine attribute that is tough to apply to humans, and the word "natural" would seem to connect not so much with science as to a preoccupation with natural law. In both cases, we are talking about the essence of being human. Western philosophy and theology have historically argued that the essence of the human being is rationality or the imago Dei or some other exceptionally general quality. How can race qualify in that respect? What do we say of people who are biracial or multiracial or whose color makes them appear to be a race other than that of their parents? What is their immutable race? Appearance doesn't always give away someone's genetic heritage or gender, for that matter.
The argument for suspect classes finds its strength not in science or in natural philosophy but in history and identity. The identity of groups is formed both by their own self-identification and the identity others put on them. Race is a protected class because racial identity has historically been used as a reason to discriminate and the amendments to our Constitution recognize that it can continue to be. We've learned that the full force of the law should protect people from such discrimination. And I don't think we learned that lesson from some idea of the immutability of race.
Whether sexual orientation is a hard-wired attraction to the same-sex or the opposite sex or both or something else altogether--well, that's irrelevant to the question of discrimination. If calling oneself gay, lesbian, or bisexual or being called that by others becomes the basis for discrimination, then those who wish to discriminate ought to have a pretty good reason (meaning publicly defensible reason) for discriminating.
People don't have research-based science on their minds when they're engaged in discrimination based on race, gender, or sexual orientation. Stereotypes and unexamined prejudice about these identities are shaping their decisions in such moments. So Professor Witte of Emory is making a ridiculous argument in complaining about the lack of scientific documentation for an immutable sexual orientation. The burden is on the one discriminating to defend his or her action, not on the one being denied the right, accommodation, or service.