Born this way? Five court cases will put focus on gay identity

Lady Gaga may belt out that gays are “born this way,” but questions about the origin and unchangeability of homosexuality are central to at least five lawsuits, including two before the Supreme Court next month.

A key argument in the battle over same-sex marriage is whether homosexuality is inborn and “immutable,” and whether gays, as a class of people, need special protection or “heightened scrutiny” from the courts on equal-rights issues.

Attorneys David Boies and Theodore Olson made these exact points in their new brief to the Supreme Court in Hollingsworth v. Perry, the California case challenging a proposition passed by state voters essentially blocking same-sex marriage.

“Because of their sexual orientation – a characteristic with which they were born and which they cannot change – plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s most precious relationships. They may not marry the person they love,” the attorneys wrote Thursday on behalf of the American Foundation for Equal Rights, an organization that seeks to overturn the state’s Proposition 8 and legalize same-sex marriage in the state.

“Sexual orientation is ‘immutable’ or beyond the group member’s control,” the brief added, one key reason that the high court should give heightened scrutiny to the gay respondents’ claims that they face discrimination under the Constitution.

Opponents of same-sex marriage reject the central premise of the challenge, countering that homosexuality is neither permanent nor inborn.