Classifications, like race, that historically have been used to saddle certain people with disabilities on the basis of a characteristic that otherwise would be irrelevant to an individual's ability to contribute to society are inherently suspect as more likely to have been the product of irrational prejudice and, thus, are deserving of heightened equal protection scrutiny. Thus, in adjudicating whether a sexual orientation classification is deserving of heightened equal protection scrutiny, a court should ask only whether gay people have suffered a history of discrimination and whether their sexual orientation says anything about their ability to contribute to society.
The federal courts of appeals that have adjudicated the constitutionality of such sexual orientation classifications have avoided answering these questions, however, by holding that homosexuality, unlike race, is a classification based on conduct that falls outside the scope of protections afforded by the “liberty” of the Due Process Clause. These courts have not only failed to appreciate that the protections of the Equal Protection Clause are independent of those of the Due Process Clause, but have also profoundly erred in equating a gay sexual orientation with participation in homosexual sex. Further, in concluding, if only implicitly, that a state may constitutionally proscribe all same-sex erotic activity, these courts also have failed to recognize that the decision of a gay person to participate in such same-sex erotic activity is among “the most intimate and personal choices a person may make in a lifetime, [is] central to personal dignity and autonomy, [and, thus, is] central to the liberty protected by the Fourteenth Amendment.”
The physiology and genetics research discussed in this Article should inform both the equal protection and the due process analyses at issue. This research evidences that sexual orientation is only a genetically influenced and physiologically based predisposition toward an erotic, affectional and romantic attraction to individuals of one's own sex and exists independent of any physical sexual conduct. Thus, such evidence speaks to the reality of an irreducible essentialist conception of homosexuality–connoting only same-sex desire–which undermines the factual premise–that homosexuality is a status defined by conduct–of the equation of a gay sexual orientation with gay sex. Further, this research evidences that sexual orientation, unlike sexual conduct, involves no volition. We cannot choose to redirect our sexual orientation. For this reason, the decision to engage in same-sex erotic activity, or to abstain from doing so, is qualitatively commensurate with such other deeply personal, and constitutionally protected, decisions relating to family, marriage, and procreation and should be commensurate in constitutional status under the Due Process Clause.
Finally, we can be confident that science will speak even louder to these issues in the near future. While geneticists to date have only detected the presence of a “gay gene,” that gene and others that influence sexual orientation are almost certain to be isolated in the very near future. Then it will be possible to determine both how and when these genes influence sexual orientation. This knowledge is likely to impact not only the constitutional analyses relating to laws that repress gay people but also many of the homophobic conceptions that manifest themselves in the enactment of such laws.
18 U. Haw. L. Rev. 571