Amicus Curiae Brief — Romer v. Evans

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TABLE OF CONTENTS

Page

SARS A bi ii

INTEREST OF AMICI CURIAE ................................. 1

SeAToes OF PACT 5

INTRODUCTION AND SUMMARY OF ARGUMENT. 7

i RIES ae SEA NE A ER a rs Oe 9

I. THE NATURE OF SEXUAL ORIENTATION.. 9

A. The Definition Of Sexual Orientation...

B. The Prevalence Of Homosexual Orientation... 11

C. The Development Of Sexual Orientation... 12

D. Can Sexual Orientation Be Changed? _...... 14

E. Homosexuality Is Not A Disorder And Does

Not Affect One’s Ability To Contribute To

an NGA Bd. ast oD a ne able ed Pana 15

Il. GAY PEOPLE HAVE LONG FACED IN-

TENSE PREJUDICE AND DISCRIMINATION

BASED ON IGNORANCE AND STEREO-

ETE NBER Se 1S Ret, eee 18

A. History And Prevalence Of Prejudice And

Discrimination Against Gay People ........... 19

B. The Nature Of Anti-Gay Prejudice... 22

C. Effects Of Prejudice And Discrimination... 24

i elaciilhS AE PE a se te a A 27

TABLE OF AUTHORITIES

CASES Page

Boutilier v. Immigration & Naturalization Service,

387 U.S. 118 (1967) -....... ati 21

City of Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 482 (1985) ... 7-8

Heller v. Doe, 118 S. Ct. 2687 (1998) .............-........ 7

Hunter v. Erickson, 393 U.S. 385 (1969) ................ 6-7

Palmore v. Sidoti, 466 U.S. 429 (1984) .................... 8

Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991),

cert. denied, 113 S. Ct. 655 (1992) ~..................... 7

Reynolds v. Sims, 377 U.S. 533 (1964) ~.................-. 6

Stanton v. Stanton, 421 U.S. 7 (1975) ..................... 8

United States v. Lallemand, 989 F.2d 936 (7th Cir.

BOI asecevesicintinccisnsishethincestabaiepenpsbiibeliasaaieabaaie tinier 26

USDA v. Moreno, 418 U.S. 528 (1978) ..................... 8

Watkins v. United States Army, 875 F.2d 699 (9th

Cir. 1989), cert. denied, 498 U.S. 957 (1990)...... 18

Zobel v. Williams, 457 U.S. 55 (1982) ..................-... 8

STATUTES

Colo. Rev. Stat., Const. art. II, § 30b (1994 Supp.) ..passim

8 U.S.C. § L1SB(a) (4) (1GBB) nanan nnn annensenrcnsccceees 21

Pit os >| 6 eee 6

MISCELLANEOUS

Joseph E. Aguero, Laura Bloch & Donn Byrne, The

Relationships Among Sexual Beliefs, Attitudes,

Experience, and Homophobia, 10 J. Homosexual-

Sher BE CID cccecnscqeoccncttlictiesiepsnttnicnsncibnentinsnenn cies 22-23

American Bar Association Report No. 8, House of

LG _,

148 Am. J. Psychiatry 552 (1991) ............................

148 Am. J. Psychiatry 1625 (1991) ............................

149 Am. J. Psychiatry 724 (1992) -...............-...-----.-+-

150 Am. J. Psychiatry 686 (19938) -.........................-...

American Medical Association, Reports of Board

of Trustees, Annual Meeting of the House of

>> > & OT

Dahaapnten (1G) ancanennccnecnccceceesieicsneescnsesanssenoresenensce 5

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (DSM-

TE) (Gta pEtay. TOT) acaseecnccncncsccsrenrecsccssencseseesnsestasee 3

iii

TABLE OF AUTHORITIES—Continued

Page

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (DSM-

ET TE ES 15

American Psychological Association, Minutes of

the Annual Meeting of the Council of Repre-

sentatives, 30 Am. Psychologist 620 (1975)........ 2-3, 15

American Psychological Association, Minutes of

the Annual Meeting of the Council of Repre-

sentatives, 32 Am. Psychologist 408 (1977)........ 3

American Psychological Association, Minutes of

the Annual Meeting of the Council of Repre-

sentatives, 36 Am. Psychologist 552 (1981)........ 3

American Psychological Association, Minutes of

the Annual Meeting of the Council of Repre-

sentatives, 48 Am. Psychologist 527 (1988) ........ 3

American Psychological Association, Minutes of

the Annual Meeting of the Council of Repre-

sentatives, 44 Am. Psychologist 1026 (1988)...... 3

American Psychological Association, Minutes of

the Annual Meeting of the Council of Repre-

sentatives, 49 Am. Psychologist 628 (1994) ........ 3

M.V. Lee Badgett, Colleen Donnelly & Jennifer

Kibbe, Pervasive Patterns of Disciimination

Against Lesbians and Gay Men: Evidence from

Surveys Across the United States (1992) .......... 21-22

J. Michael Bailey & Deana S. Benishay, Familial

Aggregation of Female Sexual Orientation, 150

Am. J. Psychiatry 272 (1998) -.............................. 18

J. Michael Bailey, David Bobrow, Marilyn Wolfe &

Sarah Mikach, Sexual Orientation of Adult Sons

of Gay Fathers, 31 Developmental Psychol. 124

EEE SRD EES, Ea 18

J. Michael Bailey & Richard C. Pillard, A Genetic

Study of Male Sexual Orientation, 48 Archives

Gen. Psychiatry 1089 (1991) .............000000n.... 13

J. Michael Bailey, Richard C. Pillard, Michael C.

Neale & Yvonne Agyei, Heritable Factors Influ-

ence Sexual Orientation In Women, 50 Archives

Gen. Psychiatry 217 (1998) ................00000..cc0.. 13

TABLE OF AUTHORITIES—Continued

J. Michael Bailey & Kenneth J. Zucker, Childhood

Sex-Typed Behavior and Sexual Orientation: A

Conceptual Analysis and Quantitative Review,

31 Developmental Psychol. 43 (1955) .................

Morton Bard & Dawn Sangrey, The Crime Vic-

Rane Ta TD iritinitiiptisenecttceepbincpiniomatibiientdtines

Alan P. Bell & Martin S. Weinberg, Homosexruali-

ties: A Study of Diversity Among Men and

PRR ; CH Wasanstnccttbictirticlenccittticpeesinceenslittsihscciipaatbiatagnes

Alan P. Bell, Martin S. Weinberg & Sue Kiefer

Hammersmith, Sexual Preference: Its Develop-

ment in Men and Women (1981) ..............--...--...-.

Kevin T. Berrill, Anti-Gay Violence and Victimiza-

tion in the United States: An Overview, in Hate

Crimes: Confronting Violence Against Lesbians

and Gay Men (Gregory M. Herek & Kevin T.

RE ES ee

Allan Berube, Coming Out Under Fire: The His-

tory of Gay Men and Women in World War Two

CBG nc cbeinccciinihinshntiestlitaiinstinitghicniitilinccshiiilicllilbidtaiiiintpas

Ray Blanchard, Kenneth J. Zucker, Susan J.

Bradley & Caitlin S. Hume, Birth Order and

Sibling Sex Ratio in Homosexual Male Adoles-

cents and Probably Prehomoserual Feminine

Boys, 31 Developmental Psychol. 22 (1995)........

John Boswell, Christianity, Social Tolerance, and

Homoseruality: Gay People in Western Europe

from the Beginning of the Christian Era to the

Fourteenth Century (1980) ..........-...-..-...------------+-

Frederick W. Bozett, Gay Fathers: A Review of

the Literature, 18 J. Homosexuality 137 (1989),

reprinted in Psychological Perspectives on Les-

bian and Gay Male Experiences (Linda D.

Garnets & Douglas C. Kimmel eds., 1993) ..........

Samuel Brakel, John Parry & Barbara Weiner,

The Mentally Disabled and the Law (3d ed.

GOD cea easitiiteetihandaitt i iciiccicccmsineallciatiliiptaanine

William Byne & Bruce Parsons, Human Sexual

Orientation: The Biologic Theories Reappraised,

Page

50 Archives Gen. Psychiatry 228 (1993) ........... 9-10, 14

TABLE OF AUTHORITIES—Continued

George A. Chauncey, Jr., Gay New York: Gender,

Urban Culture and the Making of the Gay Male

World, 1890-1940 (1994) .22.2222222222.ccceecccceeeceeeeeseeee

Gary David Comstock, Violence Against Lesbians

PE: _ hee eee

John D’Emilio, Sexual Politics, Sexual Communi-

ties: The Making of a Homosexual Minority in

the United States, 1940-1970 (1988) ...................

Milton Diamond, Homoseruality and Bisexuality in

Different Populations, 22 Archives Sexual Behav.

ER eich hed aches edhinctiltinietignamnne

Lynda S. Doll, Lyle R. Petersen, C.R. White, E.S.

Johnson, J.W. Ward & The Blood Donor Study

Group, Homoserually and Nonhomoserually

Identified Men Who Have Sex with Men: A Be-

havioral Comparison, 29 J. Sex Res. 1 (1992)...

Murray J. Edelman, Understanding the Gay and

Lesbian Vote in ’92, Pub. Persp., Mar.-Apr.

) APRN

Stuart Elliott, A Sharper View of Gay Consumers,

N.Y. Times, June 9, 1994, at D-1 —...............

Lillian Faderman, Odd Girls and Twilight Lovers:

A History of Lesbian Life in Twentieth-Century

America (1991) took

Robert E. Fay, Charles F. Turner, Albert D.

Klassen & John H. Gagnon, Prevalence and Pat-

terns of Same-Gender Sexual Contact Among

Men, 248 Science 338 (1989)

David K. Flaks, Ilda Ficher, Frank Masterpasqua

& Gregory Joseph, Lesbians Choosing Mother-

hood: A Comparative Study of Lesbian and

Heterosexual Parents and Their Children, 31

Developmental Psychol. 105 (1995) ....................

Mark Freedman, Homosexuality and Psychological

fo, EEA EC eee

Kurt Freund, Robin Watson & Douglas Rienzo,

Heterosexuality, Homosexuality, and Erotic Age

Preference, 26 J. Sex. Res. 107 (1989) ................

eee eee eee eee

Page

TABLE OF AUTHORITIES—Continued

Linda D. Garnets, Gregory M. Herek & Barrie

Levy, Violence and Victimization of Lesbians

and Gay Men: Mental Health Consequences, 5

J. Interpersonal Violence 366 (1990), reprinted

in Psychological Perspectives on Lesbian and

Gay Male Experiences (Linda D. Garnets &

Douglas C. Kimmel eds., 1993) .........

Gay and Lesbian Youth (Gilbert Herdt ed., 1989) ..

John C. Gonsiorek, The Empirical Basis for the

Demise of the Iliness Model of Homosexuality, in

Homosexuality: Research Implications for Pub-

lic Policy (John C. Gonsiorek & James D.

Page

25-26

| SCN en ad ee ve 16-17, 20

John C. Gonsiorek, Mental Health Issues of Gay

and Lesbian Adolescents, 9 J. Adolescent Health

6 it RR RE eee re ag

John C. Gonsiorek, Results of Psychological Test-

ing on Homosexual Populations, 25 Am. Be

havioral Sei. 3865 (19GB) .....2..-......-.ccccceocceceecoeees

John C. Gonsiorek & James R. Rudolph, Homosez-

ual Identity: Coming Out and Other Develop-

mental Events in Homosexuality: Research Im-

plications for Public Policy (John C. Gonsiorek

& James D. Weinrich eds., 1991) ........

John C. Gonsiorek & James D. Weinrich, The

Definition and Scope of Sexual Orientation, in

Homosexuality: Research Implications for Pub-

lic Policy (John C. Gonsiorek & James D.

WO; GI, WI cicitteeinititbicinitast elias te

G. Dorsey Green & Frederick W. Bozett, Lesbian

Mothers and Gay Fathers, in Homoseruality:

Research Implications for Public Policy (John

C. Gonsiorek & James D. Weinrich eds., 1991) ....

Richard Green, The Immutability of (Homo) sexual

Orientation: Behavioral Science Implications for

a Constitutional (Legal) Analysis, 16 J. Psychi-

SGT TS Bo Te CD cetntttcnittetttnintbaciedicemnes

Richard Green, Sexual Identity of 37 Children

Raised by Homosexual or Transsexual Parents,

135 Am. J. Psychiatry 692 (1978)...

2,9

es eee

vii

TABLE OF AUTHORITIES—Continued

Richard Green, The “Sissy Boy Syndrome” and the

Development of Homosexuality (1987) ..............

A. Nicholas Groth & H. Jean Birnbaum, Adult

Sexual Orientation and Attraction to Underage

Persons, 7 Archives Sexual Behav. 175 (1978)...

Douglas C. Haldeman, The Practice and Zthics of

Sexual Orientation Conversion Therapy, 62 J.

Consulting & Clinical Psychol. 221 (1994)........

Douglas C. Haldeman, Sexual Orientation Con-

version Therapy for Gay Men and Lesbians:

A Scientific Examination, in Homosexuality:

Research Implications for Public Policy (John

C. Gonsiorek & James D. Weinrich eds., 1991)...

Dean H. Hamer, Stella Hu, Victoria L. Magnuson,

Nan Hu & Angela M.L. Pattatuci, A Linkage

Between DNA Markers on the X Chromosome

and Male Sexual Orientation, 261 Science 321

ELI TON ee ee ee

Maureen Hart, Howard Roback, Bennett Tittler,

Larry Weitz, Barbara Walston & Embry McKee,

Psychological Adjustment of Nonpatient Homo-

sexuals: Critical Review of the Research Litera-

ture, 39 J. Clinical Psychiatry 604 (1978)........

Hate Crimes: Confronting Violence Against Les-

bians and Gay Men (Gregory M. Herek & Kevin

re is ED ict sciddethitedsihlickmsctentsbithitenstee

Heinz Heger, The Men with the Pink Triangle

(David Fernbach trans., 1980) .............00.00....

Gilbert Herdt & Andrew Boxer, Children of Hori-

zons: How Gay and Lesbian Teens Are Leading

a New Way Out of the Closet (1993) —........000....

Gregory M. Herek, Beyond “Homophobia”: A

Social Psychological Perspective on Attitudes

Toward Lesbians and Gay Men, 10 J. Homosex-

fe TE ie a ee ee See

Gregory M. Herek, Hate Crimes Against Lesbians

and Gay Men: Issues for Research and Policy,

44 Am. Psychologist 948 (1989) 00...

Gregory M. Herek, Myths About Sexual Orienta-

tion: A Lawyer's Guide to Social Science Re-

Page

10, 15

15, 20

22-23

search, 1 Law & Sexuality 183 (1991) —............ 9, 17-18

viii

TABLE OF AUTHORITIES—Continued

Page

Gregory M. Herek, Stigma, Prejudice, and Vio-

lence Against Lesbians and Gay Men, in Homo-

sexuality: Research Implications for Public Pol-

icy (John C. Gonsiorek & James D. Weinrich

eds., 1991) ........... jee DYES OILSEED ae «EB 19, 25

Gregory M. Herek & John P. Capitanio, Black

Heterosexuals’ Attitudes Toward Lesbians and

Gay Men in the United States, 32 J. Sex Res. 95

CRD cnccibihiticesisthiehicnatiuinitidinntbiatatptina ttilieiteei eatin tines 22

Gregory M. Herek & John P. Capitanio, “Some of

My Best Friends’: Intergroup Contact, Conceal-

able Stigma, and Heterosexuals’ Attitudes To-

ward Gay Men and Lesbians, 22 Personality &

Soc. Psychol. Bull. (forthcoming 1995) -............ 21-22

Gregory M. Herek & Eric K. Glunt, Interpersonal

Contact and Heterosexruals’ Attitudes Toward

Gay Men: Results from a National Survey, 30

2 2 RARE DEAT ES Ee 22

Scott L. Hershberger & Anthony R. D’Augelli, The

Impact of Victimization on the Mental Health

and Suicidality of Lesbian, Gay, and Bisexual

Youths, 31 Developmental Psychol. 65 (1995).... 25

Emery S. Hetrick & A. Damien Martin, Develop-

mental Issues and Their Resolution for Gay and

Lesbian Adolescents, 14 J. Homosexuality 25

CBOE ccciictecessinniticnsintiistainan bib aasstichisbecieithaitileccptleliie 28, 26

Evelyn Hooker, The Adjustment of the Male Overt

Homosexual, 21 J. Projective Techs. 18 (1957) .. 17

Richard A. Isay, Dynamic Psychotherapy With

Gay Men: Developmental Considerations, 12

Rev. Psychiatry 85 (1993) ...............2..2..--.0..-000--+- 15

Carole Jenny, Thomas A. Roesler & Kimberly L.

Poyer, Are Children At Risk for Sexual Abuse

by Homosexruals?, 94 Pediatrics 41 (1994)....... 24

Dirk Johnson, Colorado Homosexuals Feel Be-

trayed, N.Y. Times, Nov. 8, 1992, at 38 ............ 27

Jonathan Ned Katz, Gay American History: Les-

bians and Gay Men in the U.S.A. (1976) -........... 20

TABLE OF AUTHORITIES—Continued

Alfred C. Kinsey, Wardell B. Pomeroy & Clyde

E. Martin, Sexual Behavior in the Human Male

(EES A SE RES REE ls Fl alo ei

Alfred C. Kinsey, Wardell B. Pomeroy, Clyde E.

Martin & Paul H. Gebhard, Sexual Behavior in

the Human Female (1958) .000.0.0000.0..00.ccccceecceeeeeeeee

Martha Kirkpatrick, Catherine Smith & Ron Roy,

Lesbian Mothers and Their Children: A Com-

parative Study, 51 Am. J. Orthopsychiatry 545

TEE Be Se AE OES eet

Mary E. Kite, When Perceptions Meet Reality:

Individual Differences in Reactions to Lesbians

and Gay Men, in Lesbian and Gay Psychology:

Theory, Research, and Clinical Applications

on Greene & Gregory M. Herek eds.,

eG ee ee el SA ee ce apne a

Lawrence A. Kurdek, The Nature and Correlates

of Relationship Quality in Gay, Lesbian and

Heterosexual Cohabiting Couples: A Test of

the Individual Difference, Interdependence, and

Discrepancy Models, in Lesbian and Gay Psy-

chology: Theory, Research, and Clinical Appli-

cations (Beverly Greene & Gregory M. Herek

Paul C. Larson, Gay Male Relationships, in Homo-

sexuality: Social, Psychological, and Biological

Issues (William Paul, James D. Weinrich, John

C. Gonsiorek & Mary E. Hotvedt eds., 1982).

Edward O. Laumann, John H. Gagnon, Robert T.

Michael & Stuart Michaels, The Social Organi-

zation of Sexuality: Sexuai Practices in the

Page

United States (1904) 2... ccececcccceseesceeeees passim

Simon LeVay, A Difference in Hypothalamic Struc-

ture Between Heterosexual and Homoserual

Men, 253 Science 1084 (1991) 0000

Simon LeVay, The Sexual Brain (1993)...

Martin P. Levine, Employment Discrimination

Gia Gay Men, 9 Int’l Rev. Mod. Soc. 151

ieee ELLE LL LEE Tee

TABLE OF AUTHORITIES—Continued

Martin P. Levine & Robin Leonard, Discrimina-

tion Against Lesbians in the Work Force, 9

Signs: J. Women Culture & Soc. 700 (1984)...

David Parr McWhirter & Andrew M. Mattison,

The Male Couple: How Relationships Develop

RON Pn ST Bd Bt FET ROI EN hath

Alan K. Malyon, The Yomosexual Adolescent: De-

velopmental Issues and Social Bias, 60 J. Child

he BE Ra ne ee

A. Damien Martin, Learning to Hide: The Social-

ization of the Gay Adolescent, 10 Adolescent

Psychiatry: Developmental & Clinical Studies

(Sherman C. Feinstein, John G. Looney, Allan

Z. Schwartzberg & Arthur D. Sorosky eds.,

eh IE SS RES, 8 Stay IEEE sane fe 8 ene Re

Gary B. Melton, Public Policy and Private Prej-

udice, 44 Am. Psychologist 933 (1989) ..............

Ilan H. Meyer, Minority Stress and Mental Health

in Gay Men, 36 J. Health & Soc. Behav. 38

alii ee, easeancaiesananane

Heino F.L. Meyer-Bahlburg, Anke A. Ehrhardt,

Laura R. Rosen & Rhoda S. Gruen, Prenatal

Estrogens and the Development of Homosexual

Orientation, 31 Developmental Psychol. 12

CD setievisicinintitianiiieihitiiallia a lin

John Money, Sin, Sickness, or Status? Homosex-

ual Gender Identity and Psychoneuroendocrinol-

ogy, 42 Am. Psychologist 384 (1987), reprinted

in Psychological Perspectives on Lesbian and

Gay Male Experiences (Linda D. Garnets &

Douglas C. Kimmel eds., 1993) —........0000000000000.

John Money & Anke A. Ehrhardt, Man & Woman,

Boy & Girl: Differentiation and Dimorphism of

Gender Identity from Conception to Maturity

PRR CE re SS A AE le

National Association of Social Workers, Code of

Ethics of the National Association of Social

I GI het i on ee ee

National Association of Social Workers, Policy

Statement on Gay Issues (1977) .........000000000...

Page

10, 14

TABLE OF AUTHORITIES-——Continued

National Association of Social Workers, Policy

Statement on Lesbian and Gay Issues (1987)...

National Association of Social Workers, Policy

Statement on Lesbian and Gay Issues (1993) ....

National Association of Social Workers, Policy

Statement on Lesbian and Gay Issues (1993),

reprinted in National Association of Social

Workers, Social Work Speaks: NASW Policy

Statements (3d ed. 1994) 2.0000...

Charlotte J. Patterson, Children of Lesbian and

Gay Parents, 63 Child Dev. 1025 (1992)........

Letitia Anne Peplau, Lesbian and Gay Relation-

ships, in Homosexuality: Research Implica-

tions for Public Policy (John C. Gonsiorek &

James D. Weinrich eds., 1991) —.....00000000000000...

Letitia Anne Peplau, Research on Homosexual

Couples: An Overview, 8 J. Homosexuality 3

Ee AR TORS AE ERNE nee We oe a

Letitia Anne Peplau & Hortensia Amaro, Under-

standing Lesbian Relationships, in Homosezxual-

ity: Social, Psychological, and Biological Is-

sues (William Paul, James D. Weinrich, John

C. Gonsiorek & Mary E. Hotvedt eds., 1982)...

Letitia Anne Peplau & Susan D. Cochran, Value

Orientations in the Intimate Relationships of

Gay Men, 6 J. Homosexuality 1 (1990) ............

Richard Posner, Sex and Reason (1992) ................

Bernard F. Reiss, Psychological Tests in Homo-

sexuality, in Homosexual Behavior: A Modern

Reappraisal (Judd Marmor ed., 1980) _.............

Gary Remafedi, James A. Farrow & Robert W.

Deisher, Risk Factors for Attempted Suicide in

Gay and Bisexual Youth, 87 Pediatrics 869

LY ER ee ae eee ee TTS ee ae oe ane

Resolution of the American Psychiatric Associa-

tion (Dec. 15, 1973), reprinted in 131 Am. J.

Page

5, 16

19-20

16-17

ll a i ee 3-4, 15

Results of Poll, S.F. Examiner, June 6, 1989, at

CT EO ae Le el OE Le Re ae

xii

TABLE OF AUTHORITIES—Continued

Page

Mary Jane Rotheram-Borus, Margaret Rosario,

Ronan Van Rossem, Helen Reid & Roy Gillis,

Prevalence, Course, and Predictors of Multiple

Problem Behaviors Among Gay and Bisexual

Male Adolescents, 31 Developmental Psychol. 75

CIID a snshitlndcisssicicininacbiitidinestilateacbsibiusiitiabedsisabiidteiin 25

Glenda M. Russell, The Psychological Effects of

Amendment 2 on Lesbians, Gays and Bisexuals

in Colorado (forthcoming 1995) ......................... 27

William Schneider & IA. Lewis, The Straight

Story on Homosexuality and Gay Rights, Pub.

Opinion, Feb.-Mar. 1984, at 16 .........................-.. 22

Michael Shively & John P. De Cecco, Components

of Sexual Identity, 3 J. Homosexuality 41

(1977), reprinted in Psychological Perspectives

on Lesbian and Gay Male Experiences (Linda

D. Garnets & Douglas C. Kimmel eds., 1993) .... i)

Charles Silverstein, Man to Man: Gay Couples in

Ase COA) cisiceiaitichnictedstlddilnteetiies 24

Charles Silverstein, Psychological and Medical

Treatments of Homosexuality, in Homosexual-

ity: Research Implications for Public Policy

(John C. Gonsiorek & James D. Weinrich eds.,

SOD rie is a oe 20

William P. Snyder & Kenneth L. Nyberg, Gays

and the Military: An Emerging Policy Issue,

8 J. Pol. & Mil. Soc. 71 (1980) ........................... 17

Special Issue, Violence Against Lesbians and Gay

Men: Issues for Research, Practice, and Policy,

5 J. Interpersonal Violence 267 (1990) ............ 22

Terry S. Stein, Afterword to Section I, 12 Rev.

ey TD Se Saket kde cchstisetesetiiccedicnss 10, 19

Terry S. Stein, Overview of New Developments in

Understanding Homosexuality, 12 Rev. Psychi-

GS DB Ge Setanta eet Repti dinsienintsidcicl passim

Cass R. Sunstein, Homosexuality and the Consti-

SesiGaee,, FE TE. Tadic TC teceteececciccscbicisscesenes 7

Kara Swisher, Area Firms Lauded on Gay Bias

Policies, Wash. Post, Oct. 11, 1994, at C2 .......... 17

xiii

TABLE OF AUTHORITIES—Continued

Richard R. Troiden, The Formation of Homo-

sexual Identities, 17 J. Homosexuality 43

(REE GEE SEIN N le Neale AL) 5 toe SOS a

William J. Turner, Homosexuality, Type 1: An

Xq28 Phenomenon, 24 Archives Sexual Behav.

. 2 aaa PIES AG DE SO Te

Frederick L. Whitam, Milton Diamond & James

Martin, Homosexual Orientation in Twins: A

Report of 61 Pairs and Three Triplet Sets, 22

Archives Sexual Behav. 187 (1993) -..................

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1039

Roy Romer, as Governor of the State of Colorado,

and the STATE OF COLORADO,

. Petitioners,

RICHARD G. EVANS, ANGELA ROMERO, LINDA FOWLER,

PAUL BROWN, PRISCILLA INKPEN, JOHN MILER, the

BOULDER VALLEY SCHOOL DISTRICT RE-2, the City

AND COUNTY OF DENVER, the CiTy OF BOULDER, the

City OF ASPEN, and the CiTy COUNCIL OF ASPEN,

Respondents.

On Writ of Certiorari to the Supreme Court

of the State of Colorado

BRIEF AMICUS CURIAE OF

THE AMERICAN PSYCHOLOGICAL ASSOCIATION,

THE AMERICAN PSYCHIATRIC ASSOCIATION,

THE NATIONAL ASSOCIATION OF

SOCIAL WORKERS, INC., AND

THE COLORADO PSYCHOLOGICAL ASSOCIATION

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE '

The American Psychological Association, a scientific

and professional organization founded in 1892, is the

major association of psychologists in the United States.

It has more than 120,000 members and affiliates, includ-

ing the vast majority of psychologists holding doctoral

1 The parties have consented to the filing of this brief. Their

letters of consent are on file with the Clerk of the Court.

degrees from accredited universities in the United States.

The Colorado Psychological Association, founded in

1946, represents more than 700 psychologists in the

State of Colorado. The American Psychiatric Associa-

tion, founded in 1844, is the Nation’s leading organiza-

tion of physicians specializing in psychiatry, with approxi-

mately 40,000 members. The National Association of

Social Workers (“NASW”) was established in 1955 as a

nonprofit professional association. It is the largest social-

work association in the world, with more than 160,000

members. Together, the four amici represent the majority

of mental health care providers in this country.

Amici submit this brief to bring to this Court’s atten-

tion the principal body of professional research pertinent

to the questions posed in this case. Gay men and lesbians

have been subjected to widespread discrimination based

on prejudice, myths, and stereotypes.” Amici believe that

this Court’s consideration of this case will be aided by

presentation of the literature demonstrating the baseless-

ness of, and harms caused by, such discrimination.

Amici have publicly and formally urged the elimina-

tion of irrational discrimination against gay men and

lesbians on many occasions. Beginning in 1975, the

Council of Representatives of amicus American Psycho-

logical Association passed a series of resolutions urging

that gay men and lesbians not be discriminated against

in employment, housing, licensing, public accommodation,

and child custody.’ In 1988, the association approved a

2 As used in this brief, the terms “gay” and “lesbian” describe

men and women, respectively, whose sexual orientation is based on

their primary sexual, emotional, or romantic attraction to members

of their own sex. See generally John C. Gonsiorek & James D.

Weinrich, The Definition and Scope of Sexual Orientation, in Homo-

sexuality: Research Implications for Public Policy 1, 1-12 (John

C. Gonsiorek & James D. Weinrich eds., 1991) [hereinafter Homo-

sexuality]; Terry S. Stein, Overview of New Developments in

Understanding Homosexuality, 12 Rev. Psychiatry 9, 10-12 (1998).

3 See, e.g., American Psychological Association, Minutes of the

Annual Meeting of the Council of Representatives, 30 Am. Psycholo-

resolution recognizing the “profound psychological con-

sequences” of “hate crimes” motivated by anti-gay preju-

dice and urging governmental action to reduce such bias-

related crimes and to eliminate “policies that perpetuate

them.” * The following year, the organization reaffirmed

“its opposition to laws criminalizing consensual adult

sexual behavior in private.”° On August 22, 1993, the

Association’s Council of Representatives passed a resolu-

tion condemning “.mendment 2 and any other state-law

provisions purpurting to bar legislation against sexual-

orientation discrimination, declaring that “there is no

basis for such discrimination and such discrimination is

detrimental to mental health and the public good.” °

Amicus American Psychiatric Association in 1973

formally declared that homosexualuy “does not constitute

a psychiatric disorder”* and “implies no impairment in

judgment, stability, reliability, or general social or voca-

tional capabilities.” ° The organization opposed “all pub-

lic and private discrimination against homosexuals in such

areas as employment, housing, public accommodation,

gist 620, 6383 (1975); American Psychological Association, Minutes

of the Annual Meeting of the Council of Representatives, 32 Am.

Psychologist 408, 432 (1977); American Psychological Association,

Minutes of the Annual Meeting of the Council of Representa‘ives,

86 Am. Psychologist 552, 581 (1981).

* American Psychological Association, Minutes of the Annual

Meeting of tne Council of Representatives, 48 Am. Psychologist

527, 528 (1988).

5 American Psychological Association, Minutes of the Annual

Meeting of the Council of Representatives, 44 Am. Psychologist

1026, 1026 (1988).

* American Psychological Association, Minutes of the Annual

Meeting of the Council of Representatives, 49 Am. Psychologist

628, 628 (1994).

7 American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders (DSM-II) § 302.0, at 44 (6th prtg.

1974).

8 Resolution of the American Psychiatric Association (Dec. 15,

1973), reprinted in 181 Am. J. Psychiatry 497 (1974).

and licensing” and urged the repeal of laws “singling out

homosexual acts by consenting adults in private” and the

enactment of laws affording “homosexual citizens the

same protections now guaranteed to others on the basis

of race, creed, color, etc.,” citing “the pervasive discrim-

inatory acts directed against this group and the arbitrary

and discriminatory laws directed against homosexual be-

havior.” The American Psychiatric Association has

opposed “exclusion and dismissal from the armed services

on the basis of sexual orientation” and the placement on

homosexuals of any special “burden of proof of judgment,

capacity, or reliability”;*® has opposed “the discrimina-

tory exclusion of homosexual visitors and immigrants to

the United States”;"' and has supported “the right to

privacy in. . . adult consensuul sexual relations conducted

in private.” In 1992, the organization reaffirmed that

“homosexuality per se implies no impairment in judgment,

stability, reliability, or general social or vocational capa-

bilities” and called for the repeal of laws penalizing pri-

vate adult homosexual acts and the taking of action “to

decrease the stigma related to homosexuality wherever

and whenever it may occur.” “

Amicus National Association of Social Workers has

likewise formally opposed discrimination against gay men

and lesbians. In 1977, the NASW adopted its first policy

statement on gay issues,* which was subsequently revised

and expanded in 1987” and again in 1993." As noted

9 Id.

10 148 Am. J. Psychiatry 552 (1991).

11 148 Am. J. Psychiatry 1625 (1991).

12149 Am. J. Psychiatry 724 (1992).

18 150 Am. J. Psychiatry 686 (1993).

14 NASW, Policy Statement on Gay Issues (approved by NASW

Delegate Assembly, 1977).

1 NASW, Policy Statement on Lesbian and Gay Issues (approved

by NASW Delegate Assembly, 1987).

1©NASW, Policy Statement on Lesbian and Gay Issues (ap-

proved by NASW Delegate Assembly, 1993).

in the 1993 statement, the NASW Code of Ethics pro-

hibits social workers from discriminating on the basis of

sexual orientation in their professional roles." The cur-

rent NASW policy also affirms the association’s commit-

ment “to work toward full social and legal acceptance

and recognition of lesbian and gay people.” ** Other pro-

fessional organizations have adopted similar policies.”

STATEMENT OF FACTS

On November 3, 1992, a majority of Colorado voters

approved a state constitutional amendment (“Amend-

ment 2”) that provides:

NO PROTECTED STATUS BASED ON HOMO-

SEXUAL, LESBIAN, OR BISEXUAL ORIENTA-

TION. Neither the State of Colorado, through any

of its branches or departments, nor any of its agen-

cies, political subdivisions, municipalities or school

districts, shall enact, adopt or enforce any statute,

regulation, ordinance or policy whereby homosexual,

lesbian or bisexual orientation, conduct, practices or

relationships shall constitute or otherwise be the basis

of, or entitle any person or class of persons to have

or claim any minority status, quota preferences, pro-

tected status or claim of discrimination. This Sec-

17 See NASW, Code of Ethics of the National Association of

Social Workers (1993).

18 NASW, Policy Statement on Lesbian and Gay Issues (approved

by NASW Delegate Assembly, Aug. 1993), reprinted in NASW,

Social Work Speaks: NASW Policy Statements 162, 163 (3d ed.

1994).

1” See, e.g., American Medical Association, Reports of Board of

Trustees, Annual Meeting of the House of Delegates (June 1993)

(“AMA policy is unequivocal—discrimination based on sexual

orientation is improper and unacceptable by any part of the federa-

tion of medicine.”) ; American Bar Association Report No. 8, House

of Delegates (1989) (resolution “urg[ing] .. . governments to

enact legislation prohibiting discrimination on the basis of sexual

orientation in employment, housing and public accommodations” ).

tion of the Constitution shall be in all respects self-

executing.

Colo. Rev. Stat., Const. art. II, § 30b (1994 Supp.).

The Amendment by its terms preven’ the State or any

of its political subdivisions from adopting any law pro-

tecting gay men, lesbians, and bisexuals against

discrimination—apparently leaving the State and its sub-

divisions at liberty to adopt policies that do discriminate

against gay men, lesbians, and bisexuals. Amendment 2

on its face does not apply neutrally to sexual orientation

of all kinds (homosexual, bisexual, and heterosexual). It

had the specific purpose and effect of amending a num-

ber of existing laws and policies that safeguarded Colo-

radans against discrimination based on sexual orientation

by deleting those protections as applied to gay men, les-

bians, and bisexuals. The Amendment, if enforced, also

would preclude state and local public entities throughout

Colorado from adopting any new remedies for anti-gay

discrimination.

On November 12, 1992, respondents filed suit in Colo-

rado state court under 42 U.S.C. § 1983, challenging the

constitutionality of Amendment 2. The Denver District

Court granted the respondents’ motion for a preliminary

injunction against the enforcement of Amendment 2. See

Pet. App. E. In Evans v. Romer, 854 P.2d 1270 (Colo.),

cert. denied, 114 S. Ct. 419 (1993), the Colorado Su-

preme Court affirmed the entry of the preliminary injunc-

tion, and held that Amendment 2 is subject to strict

scrutiny because it “fences out” an independently identi-

fiable class of persons and infringes upon their funda-

mental right to participate equally in the political process,

a right protected by the Equal Protection Clause of the

Fourteenth Amendment. /d. at 1282-83, 1285 (citing

Reynolds v. Sims, 377 U.S. 533 (1964), Hunter v. Erick-

son, 393 U.S. 385 (1969), and their progeny) (Pet. App.

D-25 to D-27).

Following an eight-day trial, the district court perma-

nently enjoined the enforcement of Amendment 2. See

Pet. App. C. The Colorado Supreme Court again af-

firmed, holding that Amendment 2 was subject to strict

scrutiny and was not narrowly tailored to serve any com-

pelling governmental interest. Evans v. Romer, 882 P.2d

1335, 1350 (Colo. 1994) (Pet. App. B-24). Because

the Colorado Supreme Court held that Amendment 2

infringes on a fundamental right and is therefore subject

to strict scrutiny, it did not address respondents’ argument

that Amendment 2 should be invalidated even under the

rational-basis test. See id. at 1341 n.3 (Pet. App. B-6

n.3).

INTRODUCTION AND SUMMARY OF ARGUMENT

This case involves two legal standards. First, based

on this Court’s decision in Hunter v. Erickson, supra, the

Colorado Supreme Court concluded that gay men, les-

bians, and bisexuals constitute an “independently identi-

fiable group” whose right to participate equally in the

political processes of Colorado and its subdivisions would

be infringed by the enforcement of Amendment 2. 882

P.2d at 1341, 1349-50 (Pet. App. B-7, B-24). An “iden-

tifiable group” has been described as one “defined in terms

of some characteristic that is not ordinarily a legitimate

basis for the allocation of political authority.” Cass R.

Sunstein, Homosexuality and the Constitution, 70 Ind.

L.J. 1, 11 (1994).

Second, respondents argue that Amendment 2 can be

invalidated under rational-basis review. See City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432

(1985).” Under that standard, government action fails

to pass muster not only if it lacks a “footing in the reali-

ties of the subject addressed by the legislation,” Heller v.

Doe, 113 S. Ct. 2637, 2643 (1993), but also if it is based

predominantly on invidious prejudice or unreasoned

2 See also Pruitt v. Cheney, 963 F.2d 1160, 1164-66 (9th Cir.

1991) (citing Cleburne and applying rational-basis review to Army

regulations that discriminated on the basis of sexual orientation),

cert. denied, 113 S. Ct. 655 (1992).

antipathy, or if it reflects blind adherence to unfounded

stereotypes. See Cleburne, 473 U.S. at 446-47 (the “bare

. . . desire to harm a politically unpopular group” is never

a legitimate state interest (internal quotation marks

omitted) ); id. at 448-50 (“mere negative attitudes,”

“vague, undifferentiated fears,” “irrational prejudice,” and

“‘{p]rivate biases’” are not permissible bases for dis-

Criminatory state action (quoting Palmore v. Sidoti, 466

U.S. 429, 433 (1984))); Stanton v. Stanton, 421 U.S.

7, 13-15 (1975) (“role-typing” and “old netions” can-

not provide a rational basis for a discriminatory state

law); see also Zobel v. Williams, 457 U.S. 55, 61-63

(1982); USDA v. Moreno, 413 U.S. 528, 534-35 (1973).

In this brief, amici present two bodies of scholarly

literature that are relevant to the Court’s consideration of

these issues. We begin with a discussion of the latest

scientific research on the nature of sexual orientation.

This research firmly and consistently rejects the wide-

spread assumptions that sexual orientation is the same

as sexual conduct, that sexual orientation is freely chosen

and readily subject to alteration, and that homosexual or

bisexual orientation is a mental disorder causing impair-

ment of psychological or social functioning.

We then discuss the literature on prejudice and dis-

crimination against gay people. Prejudice directed against

gay people as a group has led to harmful, and sometimes

violent, acts of purposeful discrimination. Measured by

a variety of standards—from research on public attitudes

to statistics on hate crimes—lesbians and gay men remain

subject to intense societal prejudice and discrimination,

both public and private, largely growing out of inaccurate

stereotypes and causing serious harm.

ARGUMENT

I. THE NATURE OF SEXUAL ORIENTATION.

A. The Definition Of Sexual Orientation.

Behavioral and social scientists commonly identify

sexual orientation as one of several distinct but related

components of human sexuality.*’ Sexual orientation

refers to the tendency to experience erotic or romantic

responses to men, women, or both, and the resulting sense

of oneself.** Sexual orientation is generally classified as

heterosexual, bisexual, or homosexual, with the range

sometimes viewed as a continuum.” Sexual orientation

has a number of aspects, including experiencing an ongo-

ing attraction to persons of a particular gender; develop-

ing a private personal identity or self-concept as hetero-

sexual, gay, lesbian, or bisexual; establishing a public

identity based on sexual orientation; and identifying with

a community of those who share the same sexual

orientation.”

*1 Other components of human sexuality are biological sex,

gender identity (the psychological sense of being male or female),

and social sex role (adherence to cultural norms for masculine or

feminine behaviors and attitudes). See John Money & Anke A.

Ehrhardt, Man & Woman, Boy & Girl: Differentiation and Dimorph-

ism of Gender Identity from Conception to Maturity 1-23 (1972) :

Michael Shively & John P. De Cecco, Components of Sexual

Identity, 3 J. Homosexuality 41, 41-48 (1977), reprinted in Psycho-

logical Perspectives on Lesbian and Gay Male Experiences 84-87

(Linda D. Garnets & Douglas C. Kimmel eds., 1993) {hereinafter

Psychological Perspectives]; Stein, Overview, supra, at 10-11.

2 See Gonsiorek & Weinrich, supra, at 1-12; Shively & De Cecco,

supra; Stein, Overview, supra, at 11; William Byne & Bruce

Parsons, Human Sexual Orientation: The Biologic Theories Reap-

praised, 50 Archives Gen. Psychiatry 228, 229 (1998).

8 See, e.g., Shively & De Cecco, supra; Byne & Parsons, supra.

*4 See Gregory M. Herek, Myths About Serual Orientation: A

Lawyer's Guide to Social Science Research, 1 Law & Sexuality 133,

134 (1991).

Sexual orientation is distinct from sexual conduct.”

The fact that a person engages in same-sex sexual activity,

other-sex sexual activity, both, or neither is not sufficient

to determine his or her sexual orientation; indeed, “[a]ny

definition of sexuality based solely on behavior is bound

to be deficient and misleading.” * Thus, many individ-

uals who identify themselves as gay or lesbian, or who are

predominantiy attracted to members of the same sex,

nonetheless engage in other-sex sexual behavior.” Simi-

larly, many persons who identify themselves as hetero-

sexual engage in same-sex sexual behavior. As in the

case of heterosexuals, some people who identify themselves

as gay or lesbian do not engage in any sexual activity at

all.” Some gay male and lesbian relationships, again like

25 See, e.g., John Money, Sin, Sickness, or Status? Homosexual

Gender Identity and Psychoneuroendocrinology, 42 Am. Psycholo-

gist 384 (1987), reprinted in Psychological Perspectives, supra,

at 133-34; Terry S. Stein, Afterword to Section I, 12 Rev. Psychi-

atry 127, 127 (1998); Byne & Parsons, supra, at 229.

26 Douglas C. Haldeman, The Practice and Ethics of Sexual

Orientation Conversion Therapy, 62 J. Consulting & Clinical

Psychol. 221, 221 (1994); see also Edward O. Laumann, John

H. Gagnon, Robert T. Michael & Stuart Michaels, The Social

Organization of Sexuality: Sexual Practices in the United States

311-12 (1994). The Laumann study, based on a survey of a

representative sample of American adults between the ages of

18 and 60 and conducted by the National Opinion Research Center

at the University of Chicago, is hereinafter referred to as the

“NORC Study.”

27 See NORC Study, supra, at 311-12.

28 See id. at 310-12; Lynda S. Doll, Lyle R. Petersen, C.R. White,

E.S. Johnson, J.W. Ward & The Blood Donor Study Group, Homo-

sexually and Nonhomosexrually Identified Men Who Have Sex with

Men: A Behavioral Comparison, 29 J. Sex Res. 1, 1-14 (1992);

Alfred C. Kinsey, Wardell B. Pomeroy & Clyde E. Martin, Serual

Behavior in the Human Male 623-30 (1948); Alfred C. Kinsey,

Wardell B. Pomeroy, Clyde E. Martin & Paul H. Gebhard, Serual

Behavior in the Human Female 474-75 (1958).

2° See NORC Study, supra, at 312 n.29; Milton Diamond, Homo-

sexuality and Biseruality in Different Populations, 22 Archives

Sexual Behav. 291 (1992).

hte

their heterosexual counterparts, do not include an overtly

sexual component.”

B. The Prevalence Of Homosexual Orientation.

Few generalizable estimates exist of the prevalence of

homosexual orientation in the United States.** Among

existing surveys on sexuality, estimates differ substantially

depending upon (among other things) whether the re-

searcher inquires into same-sex sexual conduct, sexual

orientation measured in terms of enduring attraction, or

self-reported sexual identity. The renowned study of sex-

uality recently released by the National Opinion Research

Center at the University of Chicago is illustrative. In

that survey, 4.9% of men and 4.1% of women reported

having had sex with a same-sex partner since age eigh-

teen.” A larger proportion of respondents—7.7% of the

men and 7.5% of the women—reported experiencing

attraction to persons of their own sex, considering the

prospect of sex with a same-sex partner appealing, or

both.“ When respondents were asked whether they

thought of themselves as “heterosexual, homosexual, bi-

sexual, or something else,” 2.8% of the male respondents

3© See Letitia Anne Peplau & Susan D. Cochran, Value Orienta-

tions in the Intimate Relationships of Gay Men, 6 J. Homosexuality

1 (1990).

81 This scarcity is due in part to practical research problems,

particularly many individuals’ unwillingness to acknowledge homo-

sexual orientation even in anonymous surveys, which compound

the usual difficulties of eliciting accurate survey data on sexual

matters. See, e.g., NORC Study, supra, at 284 (noting that, due

to social stigma attached to same-sex sexual activity and homosexual

orientation, survey data on these subjects are “no doubt lower-

bound estimates”); id. at 301 (“[T]he measurement of same-

gender practices and attitudes is crude at best, with unknown levels

of underreporting for each... .”).

32 Jd. at 303; see also Robert E. Fay, Charles F. Turner, Albert

D. Klassen & John H. Gagnon, Prevalence and Patterns of Same-

Gender Sexual Contact Among Men, 243 Science 338 (1989).

83 NORC Study, supra, at 305.

and 1.4% of the female respondents identified themselves

as “homosexual” or “bisexual.” ** The Chicago research-

ers found a significantly higher prevalence of self-reported

homosexual or bisexual identity (9.2% for men, 2.6%

for women) among residents of the twelve largest Ameri-

can cities.”

C. The Development Of Sexual Orientation.

Current professional understanding is that the core

feelings and attractions that form the basis for adult

sexual orientation typically emerge by early adolescence.”

For some people, adult homosexual orientation is predict-

abie by early childhood.” Developmental precursors of

34 Jd. at 300-01, 305. Other studies have found a somewhat

greater prevalence of self-reported gay or lesbian identity. See

Stuart Elliott, A Sharper View of Gay Consumers, N.Y. Times,

June 9, 1994, at D-1, D-17 (reporting results of nationwide

Yankelovich Monitor survey finding that 5.7% of respondents

identified themselves as gay or lesbian); Murray J. Edelman,

Understanding the Gay and Lesbian Vote in ’92, Pub. Persp.,

Mar.-Apr. 1993 (reporting exit poll research by the University of

Connecticut’s Roper Center, finding that between 2.4% and 3.0%

of voters in 1992 elections reported that they were lesbian, gay,

or bisexual); Results of Poll, S.F. Examiner, June 6, 1989, at

A-19, A-20 (6% of nationwide sample self-reported as gay or

lesbian in random telephone survey).

35 See NORC Study, supra, at 305-07.

36 See Alan P. Bell, Martin S. Weinberg & Sue Kiefer Hammer-

smith, Serual Preference: Its Development in Men and Women

(1981).

87 See J. Michael Bailey & Kenneth J. Zucker, Childhood Sez-

Typed Behavior and Sexual Orientation: A Conceptual Analysis

and Quantitative Review, 31 Developmental Psychol. 43 (1995) ;

Richard Green, The Immutability of (Homo)sexual Orientation:

Behavioral Science Implications for a Constitutional (Legal) Anal-

ysis, 16 J. Psychiatry & L. 587 (1988); Richard Green, The “Sissy

Boy Syndrome” and the Development of Homoseruality 370 (1987).

Dr. Richard Green, a UCLA psychiatry professor specializing in

human sexuality and psychosexual development in children, testified

at trial. See Pet. App. C-17; Trial Tr. at 242-340.

adult homosexual orientation, however, have not been

consistently identified for the population as a whole.™

A number of researchers have found familial patterns

and biological correlates of adult homosexual orientation,

suggesting that genetic, congenital, or anatomical factors

may contribute to its development. For example, recent

studies have indicated a linkage between certain aspects

of DNA and sexual orientation.” Studies of identical

twins have found that “heritabilities were substantial

under a wide range of assumptions.” “ Another study,

as yet unreplicated, reported differences between heter-

osexual and gay men in the volume of a cell group in

the anterior hypothalamus, a brain structure that is in-

volved in sexua! behavior.** A study published earlier

this year suggests that women who had been exposed to

certain prenatal estrogens are more likely to be lesbian

38 See Bell et al., supra, at 198-211.

8° See Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Nan

Hu & Angela M.L. Pattatuci, A Linkage Between DNA Markers

on the X Chromosome and Male Sexual Orientation, 261 Science

821 (1993); see also William J. Turner, Homosexuality, Type 1:

An Xq28 Phenomenon, 24 Archives Sexual Behav. 109 (1995).

# J. Michael Bailey & Richard C. Pillard, A Genetic Study of

Male Sexual Orientation, 48 Archives Gen. Psychiatry 1089, 1089

(1991). Bailey and Pillard’s study, which has since been replicated,

found that, where one monozygotic (“identical”) twin was gay, the

other was also gay in 52% of the cases; where one dizygotic (“fra-

ternal”) twin was gay, the other was also gay in 22% of the cases;

and where one brother by adoption was gay, his adoptive brother

was gay in just 11% of the cases. Jd.; see also J. Michael Bailey,

Richard C. Pillard, Michael C. Neale & Yvonne Agyei, Heritable

Factors Influence Sexual Orientation In Women, 50 Archives Gen.

Psychiatry 217 (1993); J. Michael Bailey & Deana S. Benishay,

Familial Aggregation of Female Sexual Orientation, 150 Am. J.

Psychiatry 272 (1993); Frederick L. Whitam, Milton Diamond &

James Martin, Homosexual Orientation in Twins: A Report of 61

pend am Three Triplet Sets, 22 Archives Sexual Behav. 187

*1 See Simon LeVay, A Difference in Hypothalamic Structure

Between Heterosexual and Homoserual Men, 253 Science 1084

(1991) ; see also Simon LeVay, The Sexual Brain (1993).

or bisexual.“ Another study has suggested an “inter-

actionist” model, under which “genetic factors can be

conceptualized as indirectly influencing the development

of sexual orientation.” “

The available studies of gay experience indicate that

same-sex attractions generally emerge by early or mid-

adolescence.* “By the time boys and girls reach adoles-

cence, their sexual preference is likely to be already deter-

mined, even though they may not yet have become sex-

ually very active.” * The scientific literature thus strongly

indicates that sexual orientation is far from being a volun-

tary choice.“

D. Can Sexual Orientation Be Changed?

The research and clinical experience of amici’s mem-

bers indicates that, once established, sexual orientation

is resistant to change. Aithough there are some reports

of therapy leading to changed sexual orientation, there is

little evidence that treatment actually changes sexual at-

tractions, as opposed to reducing or eliminating same-sex

sexual behavior. Upon reviewing reports on “conversion

therapy,” one scholar concluded that—entirely aside from

42, See Heino F.L. Meyer-Bahlburg, Anke A. Ehrhardt, Laura

R. Rosen & Rhoda S. Gruen, Prenatal Estrogens and the Develop-

ment of Homosexual Orientation, 31 Developmental Psychol. 12

(1995).

43 Byne & Parsons, supra, at 237; see also Ray Blanchard, Ken-

neth J. Zucker, Susan J. Bradley & Caitlin S. Hume, Birth Order

and Sibling Sex Ratio in Homosexual Male Adolescents and Prob-

ably Prehomosexrual Feminine Boys, 31 Developmental Psychol. 22

(1995).

44 See Richard R. Troiden, The Formation of Homosexual Iden-

tities, 17 J. Homosexuality 48, 43-78 (1989) (reviewing research

literature) ; Bell et al., supra, at 186-87.

45 Bell et al., supra, at 186.

46 See Money, supra, reprinted in Psychological Perspectives,

supra, at 131 (“The concept of voluntary choice is as much in

error here as in its application to handedness or native language.’’).

the ethical concerns relating to any such therapy—there

is no reliable evidence that “sexual orientation is amen-

able to redirection or significant influence from psycho-

logical intervention.” *

E. Homosexuality Is Not A Disorder And Does Not

Affect One’s Ability To Contribute To Society.

The psychiatric, psychological, and social-work profes-

sions do not consider homosexual orientation to be a dis-

order.“ More than twenty years ago, amicus American

Psychiatric Association removed “homosexuality” from

its list of mental disorders, stating that “homosexuality

per se implies no impairment in judgment, stability, relia-

bility, or general social or vocational capabilities.” In

1975, amicus American Psychological Association took

the same position, and urged all mental health profes-

sionals to help dispel the stigma of mental illness that

had long been associated with homosexual orientation.”

‘"Haldeman, Practice and Ethics, supra, at 224: see Douglas C.

Haldeman, Sexual Orientation Conversion Therapy for Gay Men

and Lesbians: A Scientific Examination, in Homosexuality, supra,

at 149, 149-60; ef. Richard A. Isay, Dynamic Psychotherapy With

Gay Men: Developmental Considerations, 12 Rev. Psychiatry 85,

86 (1993) (“efforts to change core sexuality are futile”).

48 A mental disorder is “a clinically significant behavioral or

psychological syndrome or pattern that occurs in an individual

and that is associated with present distress (e.g., a painful symp-

tom) or disability (i.e., impairment in one or more important

areas of functioning) or with a significantly increased risk of

suffering death, pain, disability, or an important loss of freedom.”

American Psychiatric Association, Diagnostic and Steiistical

Manual of Mental Disorders (DSM-IV) at xxi (1st prtg. 1994).

* Resolution of the American Psychiatrie Association (Dec. 15,

1973), reprinted in 181 Am. J. Psychiatry 497 (1974). At trial,

Dr. Judd Marmor, the former president of the American Psychia-

tric Association, testified about the process that led to the Associa-

tion’s decision to remove homosexuality from its list of mental

disorders. See Trial Tr. at 390-98.

® See American Psychological Association, Minutes of the An-

nual Meeting of the Council of Representatives, 30 Am. Psychol-

ogist 620, 633 (1975).

Amicus National Association of Social Workers has a

similar policy.”

The declassification of homosexual orientation as a

mental disease reflects the results of extensive research,

conducted over three decades, showing that homosexual

orientation is not a psychological maladjustment.” A

comprehensive literature on the subject demonstrates that

“theories contending that the existence of differences be-

tween homosexuals and heterosexuals implies maladjust-

ment are irresponsible, uninformed, or both. It is well

established that “homosexuality in and of itself bears no

necessary relationship to psychological adjustment.

The social and other circumstances in which lesbians and

gay men live, including exposure to widespread and in-

tense prejudice and discrimination, often cause acute dis-

tress; but there is no reliable evidence that homosexual

orientation per se impairs psychological functioning ™ or

51 See NASW, Policy Statement on Lesbian and Gay Issues (ap-

proved by NASW Delegates Assembly, Aug. 1993), reprinted in

NASW, Social Work Speaks: NASW Policy Statements 162, 162-65

(3d ed. 1994).

52 See John C. Gonsiorek, The Empirical Basis for the Demise

of the IUness Model of Homosexuality, in Homosexuality, supra,

at 115, 115-36; Bernard F. Reiss, Psychological Tests in Homo-

sexuality, in Homosexual Behavior: A Modern Reappraisal 296

(Judd Marmor ed., 1980) ; Maureen Hart, Howard Roback, Bennett

Tittler, Larry Weitz, Barbara Walston & Embry McKee, Psycho-

logical Adjustment of Nonpatient Homosezruals: Critical Review

of the Research Literature, 39 J. Clinical Psychiatry 604 (1978).

58 Gonsiorek, Empirical Basis, supra, in Homosexuality, supra,

at 136.

: te

54 Jd.; see also John C. Gonsiorek, Results of Psychological Tes

ing on Homosexual Populations, 25 Am. Behavioral Sci. 385, 394

(1982) ; Reiss, supra, in Homoserual Behavior: A Modern Reap-

praisal, supra, at 296; Hart et al., supra.

55 As one research psychologist explained :

i i ituations in their

[Many lesbians and gay men face difficult si i

day-to-day lives as a result of the stigma attached to their

sexual orientation. ... [S]Jome lesbians and gay men experi-

workplace functioning.”

The literature also undermines negative assumptions

about gay men and lesbians as parents. One study com-

mented: “The most striking feature of the research on

lesbian mothers, gay fathers, and their children is the

absence of pathological findings. The second most strik-

ing feature is how similar the groups of gay and lesbian

parents and their children are to the heterosexual parents

and their children that were included in the studies.” ™

ence these situations as stressful and develop psychological

problems as a consequence. In particular, the pressure to hide

one’s sexual orientation and the threat of physical assaults

and other hate crimes can have many negative effects, includ-

ing psychological and physica! pain. However, empirical data

do not indicate that lesbians and gay men, as a group, show

a greater propensity to psychological dysfunction than do

heterosexuals.

Herek, Myths, supra, at 145 (citing Mark Freedman, Homoserual-

ity and Psychological Functioning (1971); Gonsiorek, Results,

supra; Gonsiorek, Empirical Basis, supra, in Homosexuality, supra;

Hart et al., supra; Evelyn Hooker, The Adjustment of the Male

Overt Homoserual, 21 J. Projective Techs. 18 (1957): Reiss,

supra, in Homoserual Behavior: A Modern Reappraisal, supra).

%6 See, e.y., William P. Snyder & Kenneth L. Nyberg, Gays and

the Military: An Emerging Policy Issue, 8 J. Pol. & Mil. Soc. 71,

77-79 (1980) (summarizing research and finding that gay people

and heterosexuals score about the same in job stability and job

satisfaction) ; Alan P. Bell & Martin S. Weinberg, Homosexrualities :

A Study of Diversity Among Men and Women 141-48 (1978).

Many major corporations and other organizations have implemented

nondiscrimination policies as to sexual orientation. See, e.g., Kara

Swisher, Area Firms Lauded on Gay Bias Policies, Wash. Post,

Oct. 11, 1994, at C2, C2 (reporting that 31 of metropolitan Wash-

ington’s 50 largest publicly-held companies have such policies).

57 G. Dorsey Green & Frederick W. Bozett, Lesbian Mothers and

Gay Fathers, in Homoseruality, supra, at 197, 213: see also, @.9.,

Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63

Child Dev. 1025 (1992); David K. Flaks, Ilda Ficher, Frank Mas-

terpasqua & Gregory Joseph, Lesbians Choosing Motherhood: A

Comparative Study of Lesbian and Heteroserual Parents and

Their Children, 31 Developmental Psychol. 105 (1995); Richard

Green, Sexual Identity of 37 Children Raised by Homosexual or

And being raised by gay parents does not appear to cause

homosexual orientation.™

Il. GAY PEOPLE HAVE LONG FACED INTENSE

PREJUDICE AND DISCRIMINATION BASED ON

IGNORANCE AND STEREOTYPES.

Sexual orientation (whether heterosexual, homosexual,

or bisexual) not only is a fundamental facet of one’s ex-

perience and sense of self, but has long had immense

social, and therefore personal, consequences. In a soci-

ety in which the vast majority of people are not gay, and

often intensely disapprove of those who are,” homosexual

orientation that is or might be readily known to other

people has enormous social implications. Homosexual

orientation often becomes the predominant social identi-

fier of gay people.” Particularly in places in which

Transsexual Parents, 135 Am. J. Psychiatry 692 (1978) ; Martha

Kirkpatrick, Catherine Smith & Ron Roy, Lesbian Mothers and

Their Children: A Comparative Study, 51 Am. J. Orthopsychiatry

545 (1981).

58 See Herek, Myths, supra, at 157-61 (summarizing research) ;

Frederick W. Bozett, Gay Fathers: A Review of the Literature,

18 J. Homosexuality 137 (1989), reprinted in Psychological Per-

spectives, supra, at 442; J. Michael Bailey, David Bobrow, Marilyn

Wolfe & Sarah Mikach, Sexual Orientation of Adult Sons of Gay

Fathers, 31 Developmental Psychol. 124, 124-29 (1995) (finding

that, of the gay fathers’ sons whose sexual orientations could be

rated, more than 90% were heterosexual, and that the sons’ sexual

orientation was unrelated to the amount of time they had spent

living with their fathers).

59 See infra pp. 21-22.

* This has been a chief premise of the Department of Defense’s

rationale for excluding openly gay people from military service,

namely, that heteroserual soldiers would be so disturbed by the

presence of openly gay people that their presence would pose a

threat to military order and morale. See, ¢.g., Watkins v. United

States Army, 875 F.2d 699, 728 (9th Cir. 1989) (en banc) (Norris,

J., concurring in the judgment) (Army argued that exclusion is

justified because it avoids “ ‘tensions between known homosexuals

and other members . . . who despise/detest homosexuality’” (quot-

ing the Army’s brief) ), cert. denied, 498 U.S. 957 (1990).

openly gay people are few, a gay man or lesbian i

likely to be thought of distinctly in terms of his co

sexual orientation, even in settings in which it is not

demonstrably relevant." As a result, “the experience of

being gay, lesbian, [or] bisexual in American society

today continues, to a large extent, to be defined by the

requirement to cope with the negative eff indi

against homosexuality.” @ ects of prejudice

A. History And Prevalence Of Prejudice And Discrim-

ination Against Gay People.

The Denver District Court correctly observed that there

is a long “history of discrimination against homosexuals.”

Pet. App. C-18. Gay people historically have been sub-

ject to intense prejudice and discrimination, both public

and private. Extreme prejudice and even persecution

were common in Europe from at least the Middle Ages.”

Here in America, social prejudice and discrimination

against lesbians and gay men have been widespread since

colonial times.“ Indeed, “lesbians and gay males have

*! See, e.g., Gregory M. Herek, Stigma, Prejudi }

Against Lesbians and Gay Men, in ete ny eae

66-72 (describing process of anti-gay stereotyping) ; id. at 61 (dis-

cussing 1987 Roper poll in which 25% of respondents stated they

would object strongly to working around gay people, and another

27% stated they would prefer not to do so).

®2 Stein, Afterword, supra, at 127.

“8 See Richard Posner, Sex and Reason 346 (1992) (“fH -

sexuals—who, like Jews, are despised more for = ie.

than for what they do—were frequently bracketed [with Jews] in

medieval persecutions.”) ; John Boswell, Christianity, Social Toler-

ance, and Homosexuality: Gay People in Western Europe from

the Beginning of the Christian Era to the Fourteenth Century

(1980). Thousands of gay people were exterminated along with

Jews and Gypsies in Nazi concentration camps. See, e.g., Heinz

oo The Men with the Pink Triangle (David Fernbach trans.,

“ History Professor George A. Chauncey, Jr. of the Uni i

i , » oF. niversit

of Chicago testified at trial as to the history of dioorinatnation

against lesbians and gay men in America, beginning in colonial

been the object of some of the deepest prejudice and

hatred in American society.” ®

In the early and mid-twentieth century, the mental

health professions’ adherence to the “illness model” of

homosexual orientation—developed at least partly in an

effort to displace the depravity/immorality model “—

probably encouraged the development of bizarre, in-

humane, and sometimes brutal “treatments” and “aver-

sion therapies” for homosexual orientation.” In_ the

1940s and 1950s, gay people were often viewed and

sometimes targeted as “sexual psychopaths.” And,

until 1990, gay people were frequently excluded from

the United States under an immigration statute denying

times. See Pet. App. C-17; Trial Tr. at 178-239; see also, e.g.,

George A. Chauncey, Jr., Gay New York: Gender, Urban Culture

and the Making of the Gay Male World, 1890-1940 (1994); Lillian

Faderman, Odd Girls and Twilight Lovers: A History of Lesbian

Life in Twentieth-Century America (1991); Allan Berube, Coming

Out Under Fire: The History of Gay Men and Women in World

War Two (1990) ; John D‘Emilio, Sexual Politics, Sexual Communi-

ties: The Making of a Homosexual Minority in the United States,

1940-1970 (1983); Jonathan Ned Katz, Gay American History:

Lesbians and Gay Men in the U.S.A. (1976).

65 Gary B. Melton, Public Policy and Private Prejudice, 44 Am.

Psychologist 933, 934 (1989); see Posner, supra, at 291 (“In the

United States ..., not only is there a strong residue of hostility

to homosexuals, but they labor under a series of legal disabilities.” ).

66 See Berube, supra, at 136-37; Gonsiorek, Empirical Basis,

supra, in Homosexuality, supra, at 116 (“homosexuality first evolved

into a medical ‘illness’ in the late 19th or early 20th century de-

pending on the country”); Stein, Overview, supra, at 14-15.

®7 See Haldeman, Sexual Orientation Conversion Therapy, supra,

in Homoseruality, supra, at 152; Charles Silverstein, Psychological

and Medical Treatments of Homoseruality, in Homosexuality,

supra, at 106-11.

“8 See Berube, supra, at 258-59; c/. Samuel Brakel, John Parry

& Barbara Weiner, The Mentally Disabled and the Law 739-43

(3d ed. 1985).

entry to persons “afflicted with psychopathic personality,

or sexual deviation.” “

Intense prejudice against lesbians and gay men remains

prevalent in contemporary American society. Public

opinion studies of attitudes towards lesbians and gay men

indicate that, among large segments of the public, gay

people are the subject of strong antipathy.” Verbal abuse

is common." Discrimination against gay people in such

critical areas as employment and housing remains lawful

in most jurisdictions, and appears to be widespread.”

8 U.S.C. §1182(a) (4) (1988): see Boutilier v. Immigration

& Naturalization Serv., 387 U.S. 118, 122 (1967).

7 In a representative nationwide survey of Americans conducted

in late 1991 and early 1992, 59.9% of the respondents agreed with

the statement, “I think lesbians are disgusting,” and roughly the

same percentage agreed when the question was asked regarding gay

males. See Gregory M. Herek & John P. Capitanio, “Some of My

Best Friends”: Intergroup Contact, Concealable Stigma, and Het-

erosexuals’ Attitudes Toward Gay Men and Lesbians, 22 Personality

& Soc. Psychol. Bull. (forthcoming 1995); Mary E. Kite, When

Perceptions Meet Reality: Individual Differences in Reactions to

Lesbians and Gay Men, in Lesbian and Gay Psychology: Theory,

Research, and Clinical Applications 25-53 (Beverly Greene &

Gregory M. Herek eds., 1994) [hereinafter Lesbian and Gay

Psychology).

1 See Kevin T. Berrill, Anti-Gay Violence and Victimization in

the United States: An Overview, in Hate Crimes: Confronting

Violence Against Lesbians and Gay Men 19, 20 (Gregory M. Herek

& Kevin T. Berrill eds., 1992) [hereinafter Hate Crimes] (across

24 separate studies, an average of 80% of lesbian, gay, and bisexual

respondents reported having been verbally harassed about their

sexual orientetion).

72 A survey published by the National Gay and Lesbian Task

Force Policy Institute of 20 employment discrimination studies

conducted between 1980 and 1991 found that between 16% and 44%

of lesbians and gay men had experienced employment discrimina-

tion. The survey’s authors noted that discrimination also was

common in such other areas as housing, public accommodations,

and health care, and that fear of discrimination forces many gay

men and lesbians to remain “closeted.” M.V. Lee Badgett, Colleen

Donnelly & Jennifer Kibbe, Pervasive Patterns of Discrimination

against Lesbians and Gay Men: Evidence from Surveys Across the

High rates of specifically anti-gay violence or “hate

crimes” have been consistently documented.”

B. The Nature Of Anti-Gay Prejudice.

Most heterosexuals’ negative attitudes toward lesbians

and gay men are not based on personal experience with

gay people. Only one in three Americans has a friend,

relative, or acquaintance who is known by them to be

lesbian or gay. Anti-gay attitudes have been found to be

significantly less common among that one-third of the

population. Several studies indicate that correction of

United States (1992) (on file with the American Psychological

Association) ; see also Martin P. Levine, Employment Discrimina-

tion Against Gay Men, 9 Int’! Rev. Mod. Soc. 151 (1979); Martin

P. Levine & Robin Leonard, Discrimination Against Lesbians in

the Work Force, 9 Signs: J. Women Culture & Soc. 700 (1984).

73 See, e.g., Berrill, supra, in Hate Crimes, supra, at 20 (across

24 separate studies, an average of 44% of lesbian, gay, and bisex-

ual respondents reported having been threatened with violence

because of their sexual orientation); Gregory M. Herek, Hate

Crimes Against Lesbians and Gay Men: Issues for Research and

Policy, 44 Am. Psychologist 948, 949 (1989) (because of stigma,

gay people under-report bias crimes motivated by anti-gay preju-

dice). See generally Hate Crimes, supra; Gary David Comstock,

Violence Against Lesbians and Gay Men (1991); Special Issue,

Violence Against Lesbians and Gay Men: Issues for Research,

Practice, and Policy, 5 J. Interpersonal Violence 267-543 (1990).

™ See Herek & Capitanio, “Some of My Best Friends”, supra;

Gregory M. Herek & John P. Capitanio, Black Heterosexuals’ At-

titudes Toward Lesbians and Gay Men in the United States, 32 J.

Sex Res. 95 (1995); Gregory M. Herek & Eric K. Glunt, /nterper-

sonal Contact and Heteroseruals’ Attitudes Toward Gay Men:

Results from a National Survey, 30 J. Sex Res. 239 (1993) ; Gregory

M. Herek, Beyond “Homophobia”: A Social Psychological Per-

spective on Attitudes Toward Lesbians and Gay Men, 10 J. Homo-

sexuality 1, 6 (1984) (summarizing research). Dislike toward gay

and lesbian people tends to be higher among people who believe

that homosexual orientation is learned or chosen. See William

Schneider & 1.A. Lewis, The Straight Story on Homosexuality and

Gay Rights, Pub. Opinion, Feb.-Mar. 1984, at 16-20, 59-60; Joseph

E. Aguero, Laura Bloch & Donn Byrne, The Relationships Among

inaccurate assumptions about lesbians and gay men often

leads to a reduction in antipathy.”

Likewise, research has shown that many people base

their opinions about gay people on an entrenched set of

negative assumptions. Both gay men and lesbians are

often associated with cross-sex characteristics. “Addi-

tionally, significant numbers of individuals characterize

male homosexuals as mentally ill, promiscuous, lonely,

insecure, and likely to be child molesters, while lesbians

have been described as aggressive and hostile toward

men.”

These images represent crude stereotypes. For example,

although gay men have been stigmatized with the allega-

tion that they are disproportionately responsible for child

sexual abuse,” there is no evidence of any positive cor-

relation between homosexual orientation and child moles-

Sexual Beliefs, Attitudes, Experience, and Homophobia, 10 J. Homo-

sexuality 95, 102 (1984).

™ See Herek, Beyond “Homophobia”, supra, at 6. At trial, Dr.

Judd Marmor, the former president of the American Psychiatric

Association, summariged the relationship between ignorance and

prejudice: “prejudice is [being] down on something you’re not

up on.” Trial Tr. at 388.

_ ™ Herek, Beyond “Homophobia”, supra, at 9; see also Kite,

supra, in Lesbian and Gay Psychology, supra, at 25-53; Emery S.

Hetrick & A. Damien Martin, Developmental Issues and Their

Resolution for Gay and Lesbian Adolescents, 14 J. Homosexuality

25, 27 (1987) (describing variety of social ills falsely attributed

to gay men and lesbians by publicists, including high crime rates,

low SAT scores, and anorexia) (citations omitted).

™ See, e.g., Trial Tr. at 681-82 (testimony of Dr. Carole Jenny)

(describing the campaign for Amendment 2); id. at 1052 (cross-

examination of Kevin Tebedo, a leader of Colorado for Family

Values (“CFV”), the organization that spearheaded the campaign

for Amendment 2) (asserting—on the basis of an unnamed psycho-

logical report—that homosexuals are 11 times more likely to molest

children than heterosexuals) : id. at 109 (describing CFV campaign

materials) .

tation.” Similarly, despite stereotypes to the contrary,

gay men and lesbians often form committed relationships

that share principal elements of heterosexual marital re-

lationships,” that are based on deep emotional attach-

ments,” and that endure for decades.”

C. Effects Of Prejudice And Discrimination.

When prejudice against lesbians and gay men takes

the form of violence or discrimination, it can have such

78 See Kurt Freund, Robin Watson & Douglas Rienzo, Hetero-

sexuality, Homosexuality, and Erotic Age Preference, 26 J. Sex.

Res. 107, 115 (1989); A. Nicholas Groth & H. Jean Birnbaum,

Adult Serual Orientation and Attraction to Underage Persons, 7

Archives Sexual Behav. 175, 180-81 (1978) ; Carole Jenny, Thomas

A. Roesler & Kimberly L. Poyer, Are Children At Risk for Sexual

Abuse by Homosexuals ?, 94 Pediatrics 41 (1994).

7 See Lawrence A. Kurdek, The Nature and Correlates of Rela-

tionship Quality in Gay, Lesbian and Heterosexual Cohabiting

Couples: A Test of the Individual Difference, Interdependence, and

Discrepancy Models, in Lesbian and Gay Psychology, supra, at

133-55: David Parr McWhirter & Andrew M. Mattison, The Male

Couple: How Relationships Develop (1984); Letitia Anne Peplau

& Hortensia Amaro, Understanding Lesbian Relationships, in

Homosexuality: Social, Psychological, and Biological Issues 237-

39 (William Paul, James D. Weinrich, John C. Gonsiorek & Mary

E. Hotvedt eds., 1982) [hereinafter 7ssuwes]. Gay men and lesbians

do not appear to differ from heterosexuals in their frequency of

sexual intercourse. Researchers at the University of Chicago found

“practically no difference between the rates of sex per month” for

heterosexuals and for homosexuals and bisexuals: “The mean

rates for [gay] men... are consistently, but not significantly,

lower than the rates for [heterosexual! men. The rates for women

hardly differ at all between the two groups.” NORC Study, supra,

at 317.

% See Letitia Anne Peplau, Lesbian and Gay Relationships, in

Homosexuality, supra, at 179-83; Letitia Anne Peplau, Research

on Homosexual Couples: An Overview, 8 J. Homosexuality 3, 5

(1982); Paul C. Larson, Gay Male Relationships, in Issues, supra,

at 233-47.

81 See, e.g.. McWhirter & Mattison, supra, at 285-86; Peplau,

Research on Homosexual Couples, supra, at 5; Charles Silverstein,

Man to Man: Gay Ceuples in America (1981).

tangible consequences as physical injury or lost employ-

ment. The harmful effects of prejudice, discrimination,

and violence, however, are not limited to such bodily or

pecuniary consequences. Amici’s members have long

experience with the adverse psychological effects suffered

by people who have an immediate and personal confron-

tation with anti-gay prejudice—whether in the form of

verbal harassment from strangers, derision from family or

coworkers, physical threats, or violent attack. The effects

can include depression, a persistent sense of vulnerability,

and efforts to rationalize the experience by viewing one’s

victimization as just punishment. Gay people, like mem-

bers of other groups that are subject to social prejudice,

also frequently come to internalize society’s negative

stereotypes. Psychologists, psychiatrists, and social work-

ers are particularly concerned about the harms that in-

ternalized social stigma can produce in gay adolescents

who are newly becoming aware of their sexual

orientation.”

*2 See Linda D. Garnets, Gregory M. Herek & Barrie Levy,

Violence and Victimization of Lesbians and Gay Men: Mental

Health Consequences, 5 J. Interpersonal Violence 366 (1990), re-

printed in Psychological Perspectives, supra, at 583; Herek,

Stigma, Prejudice, and Violence, supra, in Homosexuality, supra

at 73-75; Ilan H. Meyer, Minority Stress and Mental Health in

Gay Men, 36 J. Health & Soc. Behav. 38 (1995); cf. Morton Bard

& Dawn Sangrey, The Crime Victim’s Book (1986).

“8 Sec, e.g., Gary Remafedi, James A. Farrow & Robert W.

Deisher, Risk Factors for Attempted Suicide in Gay and Bisexual

Youth, 87 Pediatrics 869 (1991); John C. Gonsiorek, Mental

Health Issues of Gay and Lesbian Adolescents, 9 J. Adolescent

Health Care 114 (1988); Scott L. Hershberger & Anthony R.

D’Augelli, The Impact of Victimization on the Mental Health and

Suicidality of Lesbian, Gay, and Bisexual Youths, 31 Developmental

Psychol. 65 (1995) ; Mary Jane Rotheram-Borus, Margaret Rosario,

Ronan Van Rossem, Helen Reid & Roy Gillis, Prevalence, Course,

and Predictors of Multiple Problem Behaviors Among Gay and

Bisexual Male Adolescents, 31 Developmental Psychol. 75 (1995) :

see also Gay and Lesbian Youth (Gilbert Herdt ed., 1989) ; Gilbert

Herdt & Andrew Boxer, Children of Horizons: How Gay and

Lesbian Teens Are Leading a New Way Out of the Closet (1993).

The stigma and ill treatment that attach merely to ac-

knowledging homosexual orientation lead many gay peo-

ple to remain “in the closet.” * Concealing one’s sexual

orientation, or attempting to avoid association with other

gay people, commonly tends to compound psychological

distress. As explained in one recent review of the research

literature,

[p]sychological adjustment appears to be highest

among men and women who are committed to their

gay identity and do not attempt to hide their homo-

sexuality from others. As with other stigmatized mi-

norities, gay men and lesbians probably maintain self-

esteem most effectively when they identify with and

are integrated into the larger gay community. Con-

versely, people with a homosexual orientation who

have not yet come out, who feel compelled to sup-

press their homoerotic urges, who wish that they

could become heterosexual, or who are isolated from

the gay community may experience significant psy-

chological distress, including impairment of self-

esteem. Chronically hiding one’s sexual orientation

can create a painful discrepancy between public and

private identities, feelings of inauthenticity, and so-

cial isolation.”

The “daily need to hide an important aspect of . . . per-

sonal and social identity” operates as a “corrosive denial| ]

of self-respect and self-worth.” * For some, social stigma

%4 See Bell & Weinberg, supra, at 62-68.

55 Garnets et al., supra, reprinted in Psychological Perspectives,

supra, at 582-83 (citations omitted) ; see also id. at 593 n.2 (noting

danger of blackmail); United States v. Lallemand, 989 F.2d 936,

940 (7th Cir. 1993) (Posner, J.) (same).

8 Hetrick & Martin, supra, at 28; see also A. Damien Martin,

Learning to Hide: The Socialization of the Gay Adolescent, 10

Adolescent Psychiatry: Developmental & Clinicai Studies 52, 58

(Sherman C. Feinstein, John G. Looney, Allan Z. Schwartzberg &

Arthur D. Sorosky eds., 1982); Alan K. Malyon, The Homosexual

Adolescent: Developmental Issues and Social Bias, 60 J. Child

Welfare 321, 327 (1981).

turns into feelings of personal inferiority or self-hatred.”

Government measures that foster such stigma, as by point-

edly foreclosing opportunities for political participation

for gay people, only exacerbate those psychological

harms.**

CONCLUSION

To the extent that Amendment 2 rests on baseless

stereotypes about gay people, and reflects the sort of his-

torically rooted antipathy still common in our society, it

threatens to compound the serious problems gay people

face as a result of irrational discrimination, and the deci-

sion of the Colorado Supreme Court should be affirmed.

Respectfully submitted,

RICHARD G. TARANTO PAUL M. SMITH *

FARR & TARANTO JENNER & BLOCK

2445 M Street, N.W. 601 Thirteenth Street, N.W.

Washington, D.C. 20037 Washington, D.C. 20005

(202) 775-0184 (202) 639-6000

Counsel for Amicus _ James L. McHucu, Jr.

American Psychiatric General Counsel

Association AMERICAN PSYCHOLOGICAL

CAROLYN I. PoLowy ASSOCIATION

General Counsel 750 First Street, N.E.

NATIONAL ASSOCIATION OF Washington, D.C. 20002

SoctaL WorKERs, INC. (202) 336-5500

750 First Street, N.E. Counsel for Amici

Washington, D.C. 20002 American Psychological

(202) 408-8600 Association and Colorado

Counsel for Amicus Psychological Association

National Association of

Social Workers, Inc. * Counsel of Record

57 See, e.g., Gonsiorek, Mental Health Issues, supra; John C.

Gonsiorek & James R. Rudolph, Homoserual Identity: Coming

Out and Other Developmental Events, in Homoseruality, supra, at

161, 166.

88 Cf. Glenda M. Russell, The Psychological Effects of Amend-

ment 2 on Lesbians, Gays and Bisexuals in Colorado (forthcoming

1995) (on file with the American Psychological Association); Tr.

of Prelim. Inj. Hr’g, Jan. 12, 1993, at 27-29, 32-34 (testimony of

respondent John C. Miller); Dirk Johnson, Colorado Homosexuals

Feel Betrayed, N.Y. Times, Nov. 8, 1992, at 38.

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