Congratulations to Susan Schmeiser upon the publication of her recent, elegant essay Changing the Immutable, 41 Connecticut Law Review 1495-1522 (2009). It is a thoughtful inquiry into the legal and political relevance of the debate concerning the nature and origins of homosexuality. Is membership in the LGBT community something chosen by individuals or biologically determined? Is one's sexual orientation fixed or subject to change via acts of volition? Susie writes not directly about the answer to these questions but about how various answers have been used historically to promote different political and legal agendas.
The essay makes nice use of prominent political statements on the topic, including Senator Kerry's disastrous invocation of Mary Cheney in response to a question in the final 2004 Presidential Debate, Bill Richardson's contorted 2008 responses on the question of gay "choice" and Sarah Palin's performance in the Katie Couric interview. She shows how current parlance seems to have those favoring gay marriage and equal rights pushed towards a rhetoric of immutability while those unwilling to use laws and courts to cement gay rights relying heavily on the idea of choice. As we have come to expect, however, Susie beautifully demonstrates how this pairing of rhetoric with substantive positions has not been constant. In earlier periods, gay advocates were particularly fearful of the idea of a biological explanations of sexual orientation for fear of being pathologized etc.
Susie then takes us through more recent developments, highlighting an important shift she sees in Connecticut's recent Kerrigan decision and elsewhere. Courts appear more willing now than they have been to equate "immutability" not with some fixed biological status but instead with the notion of longstanding social prejudice that makes sexual orientation a crucial aspect of identity. I was particularly taken with her discussion of cases involving illegitimate children. Such cases already demonstrate that even the question of choice or "accident of birth" is socially constructed. Is legitimacy the classic case of "immutability" because the child can't choose or is it a product of the parents' choice? (Fortunately,, no court I know of has ever thought to describe race as a product of the parents' choice.)
Of course, the history of immutability within equal protection jurisprudence is a complicated one. It is hard to understand living in a country with two unassailable principles. One's freely chosen religion is subject to strict constitutional protection and the idea of asking someone to change religions to please the state is our notion of heresy. One's immutable characteristics are those receiving the greatest scrutiny under equal protection analysis. Yet courts are constantly reviewing characteristics that are neither immutable nor religious pursuant to less exacting standards. Susie's fine essay causes readers to think hard about such paradoxes, and she leaves readers in the end hopefully looking to future developments that might free courts from the "immutability" box in cases involving sexual orientation. Bravo! J