Friday, October 10, 2008

Connecticut Justices get it right on immutability

From the majority opinion (citations omitted):
A number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion. Although we do not doubt that sexual orientation—heterosexual or homosexual— is highly resistant to change, it is not necessary for us to decide whether sexual orientation is immutable in the same way and to the same extent that race, national origin and gender are immutable, because, even if it is not, the plaintiffs nonetheless have established that they fully satisfy this consideration.

Sexual intimacy is ‘‘a sensitive, key relationship of human existence, central to . . . the development of human personality . . . .’’ Thus, the United States Supreme Court has recognized that, because ‘‘the protected right of homosexual adults to engage in intimate, consensual conduct . . . [represents] an integral part of human freedom’’; individual decisions by consenting adults concerning the intimacies of their physical relationships are entitled to constitutional protection. Indeed, it is indisputable that sexual orientation ‘‘forms a significant part of a person’s identity.’’ It is equally apparent that, ‘‘[b]ecause 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.’’

In view of the central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution. This prong of the suspectness inquiry surely is satisfied when, as in the present case, the identifying trait is ‘‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it] . . . .’’ In other words, gay persons, because they are characterized by a ‘‘central, defining [trait] of personhood, which may be altered [if at all] only at the expense of significant damage to the individual’s sense of self’’ are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic. To decide otherwise would be to penalize someone for being unable or unwilling to ‘‘change . . . a central aspect of individual and group identity," a result repugnant ‘‘to the values animating the constitutional ideal of equal protection of the laws.’’
This is clearly the correct analysis, and hopefully other courts will now begin to come around - including federal courts considering "Don't Ask, Don't Tell." Of course, recent decisions applying intermediate scrutiny to limit on sexual privacy ought to lead to the same destination.

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