Amicus Curiae Brief — Obergefell v. Hodges

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Nos. 14-556, 14-562, 14-571, 14-574

3n The

Supreme Court of the Anited

JAMES OBERGEFELL, et al.,

Petitioners,

Vv.

RICHARD HODGES, Director,

Ohio Department of Health, et al.,

Respondents.

[Additional Case Captions Listed On Inside Front Cover]

On Writs Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF AMICUS CURIAE OF DR. PAUL

McHUGH IN SUPPORT OF RESPONDENTS

GERARD V. BRADLEY

Counsel of Record

NOTRE DAME LAW SCHOOL

3156 Eck Hall

Notre Dame, IN 46556

(574) 631-8385

Gerard.V. Bradley. 16@nd.edu

Counsel for Dr. Paul McHugh

——————— ll eee

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342 2831

VALERIA TANCO, et al.,

Petitioners,

Vv.

BILL HASLAM, Governor of Tennessee, et al.,

Respondents.

APRIL DEBOER, et al.,

Petitioners,

Vv.

RICK SNYDER, Governor of Michigan, et al.,

Respondents.

GREGORY BOURKE, et al.,

Petitioners,

Vv.

STEVE BESHEAR, Governor of Kentucky, et al.,

Respondents.

QUESTIONS PRESENTED

Does the Fourteenth Amendment require a state

to license a marriage between two people of the

same sex?

Does the Fourteenth Amendment require a state

to recognize a marriage between two people of

the same sex when their marriage was lawfully

licensed and performed out of state?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................-.seesceeeeeeees i

TABLE OF AUTHORITIES ................:-cessceseeeeeeeees iii

INTEREST OF AMICUS CURIAE...................0..++- 1

SUMMARY OF THE ARGUMENT ....................... 1

TIT cichinicinatiisianiiicintitaniinenigndiniaiinmianginptinian 4

I. Sexual Orientation Does Not Define a Dis-

crete and Insular Minority .......................... 4

A. Threshold Questions Prevent the Court

from Defining a Class Based on Sexual

Orientation with Sufficient Clarity ...... 4

B. Social Science Experts Raise Serious

Doubts About the Definability of Sex-

EE ASS Ce 8

Il. Sexual Orientation is Not an Immutable

TET e Tan re Tee 14

A. Immutability Means Solely an Acci-

a 14

B. Sexual Orientation Is Not Solely an Ac-

NEAR De No ome 15

C. Sexual Orientation Can and Often Does

So 20

iil

TABLE OF AUTHORITIES

Page

CASES:

Ben-Shalom v. Marsh, 881 F.2d (7th Cir. 1989) .......... 4

Burlington N. R.R. Co. v. Ford, 504 U.S. 648

EERSTE eee ne ee eee eee NT 5

Citizens for Equal Prot. v. Bruning, 455 F.3d

I ileal 4,7

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

I eect 6, 7

Equality Found. of Greater Cincinnati, Inc. v.

City of Cincinnati, 128 F.3d 289 (6th Cir.

ici a ta el 4

Frontiero v. Richardson, 411 U.S. 677 (1973)............ 15

Gomez v. Perez, 409 U.S. 535 (1973)...................2.00- 14

Graham v. Richardson, 403 U.S. 365 (1971)............. 14

Johnson v. Johnson, 385 F.3d 503 (5th Cir.

ETE ae REALE Re ear oe ae DRI Te I SS 4

Lawrence v. Texas, 539 U.S. 558 (2003)................. 4,19

Locke v. Davey, 540 U.S. 712 (2004) ...............ccccceeeeeeee 5

Lofton v. Sec’y of Dep't of Children & Family

Servs., 358 F.3d 804 (11th Cir. 2004)...............0........ 4

Lyng v. Castillo, 477 U.S. 635 (1986)..................... 5,15

Mass. Bd. of Ret. v. Murgia, 427 U.S. 307

STRESS Ee Re eee 2,5, 7

Massachusetts v. Dep't of Health & Human

Servs., 682 F.3d 1 (ist Cir. 2012).................ccceccscoeees 4

TABLE OF AUTHORITIES — Continued

Milligan-Hitt v. Bd. of Trustees of Sheridan

County Sch. Dist. No. 2, 523 F.3d 1219 (10th

Se Se tcreennencncesccsnintnenesesensereneenenianeineenteenmnenenl 4

Oyama v. California, 332 U.S. 633 (1948)................. 14

Parham v. Hughes, 441 U.S. 347 (1979).................... 14

Plyler v. Doe, 457 U.S. 202 (1982)..............ccecscssereeeees 15

Quiban v. Veterans Administration, 928 F.2d

es IIE, Ct ccccnncnecnennunsnnneeancenecnsenoseeens 15, 20

PE A 0 aE, > aa 14

Romer v. Evans, 517 U.S. 620 (1996).........................2- 4

San Antonio Indep. Sch. Dist. v. Rodriguez, 411

Se 0b Gee bade reincnscmasstonnmennesinncetmanennenenenias passim

Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).............. 4

Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)......... 4

Windsor v. United States, 699 F.3d 169 (2d Cir.

SEI cn enasiesnecensecsdniseneenenmninniieimennninenntemineneetenete 4,7

Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir.

I dacinittbiviannsinntintiininidinipabdnmndiniiddninadandddédisienetiitiebiaiions 4

Woodward v. United States, 871 F.2d 1068

PEIEEE, ENE: CEI cinidinstciicsindeindinsinininneidnianetpninnieniesansdeimansnsesent 4

CONSTITUTION

III IIIT. UD onus nnininennsgnnnnniisdpeniinieannniiinnaniniil 5

ee, IR, SIIINITE TIIIIET 0inurrenninsigpenmiamicianenediiensiitl 5,17

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES:

Am. Psychiatric Ass’n, LGBT-Sexual Orienta-

tion, http://www.psychiatry.org/mental-health/

people/igbt-sexual-orientation (last visited Jan.

Bike SPEED cecsesssevencssecestecssevenmasessonseeresssecescosnesneesece

Am. Psychol. Ass’n, Sexual Orientation and Ho-

mosexuality: Answers to Your Questions for a

Better Understanding, What Is Sexual Orien-

tation?, http://www.apa.org/topics/sexuality/

orientation.aspx?item=2 (last visited Jan. 11,

SEE ncrmevsssenssessonesennsenmsassennensesseeteneeiaseusiesueennese

M.V. Lee Badgett, Money, Myths, & Change:

The Economic Lives of Lesbians & Gay Men 4

M.V. Lee Badgett, Sexual Orientation Discrim-

ination: An International Perspective (2007)

Peter S. Bearman & Hannah Bruckner, Oppo-

site-Sex Twins and Adolescent Same-Sex At-

sancoes 9

traction, 107 Am. J. Soc. 1179 (2002)......... 16, 17, 20

Gail S. Bernstein, Defining Sexual Orientation,

Selfhelp Magazine (Sept. 18, 2012), http//www.

selfhelpmagazine.com/articles/sexual_orientation..

Karen L. Bridges & James M. Croteau, Once-

Married Lesbians: Facilitating Changing

Life Patterns, 73 J. Counseling & Dev. 134

TABLE OF AUTHORITIES — Continued

Sean Cahill et al., Family Policy: Issues Affect-

ing Gay, Lesbian, Bisexual and Transgender

Families, The National Gay and Lesbian Task

Force Policy Institute (2002) ............. 02... ccceeeeeeeeeees 24

C. Charbonneau & P.S. Lander, Redefining Sex-

uality: Women Becoming Lesbian in Mid-Life,

in Lesbians at Mid-Life (B. Sang et al. eds.,

TT cisspinsncteecisentasentidibnepaeansnciniitaniabeeandetiaainiaaiitiauibeadiiiimetnaibiédn 28

Committee on Lesbian Health Research Priorities,

Inst. of Med., Lesbian Health 25 (Andrea L.

EET oe ree 12

Laura Dean et al., Lesbian, Gay, Bisexual, and

Transgender Health: Findings and Concerns,

J. Gay & Lesbian Med. Ass’n, Sept. 2000, Vol.

John P. DeCecco, Gay Personality and Sexual

III) accontinceeninmedsesentetneseseniaiinciedeeapicbeennte 13

Lisa M. Diamond & Ritch C. Savin-Williams,

Explaining Diversity in the Development of

Same-Sex Sexuality Among Young Women, 56

J. Soc. Issues 297 (2OOO) .............c.csccccccccececececes 21, 27

Lisa M. Diamond & Ritch C. Savin-Williams,

Gender & Sexual Identity, in Handbook Ap-

plied Dev. Sci. 101 (Richard M. Lerner et al.

AREER seers Re Ome SOR 10

Lisa M. Diamond, Female Bisexuality from

Adolescence to Adulthood: Results from a 10-

Year Longitudinal Study, 44 Dev. Psychol. 5

SETI inichiciiianadiebiiiadanedhbdchadiidiatinguiedaieadievinabinmaeinandiets 22, 25

vii

TABLE OF AUTHORITIES — Continued

Lisa M. Diamond, Sexual Fluidity: Understand-

ing Women’s Love and Desire 3 (2008) ...................

Lisa M. Diamond, New Paradigms for Research

on Heterosexual and Sexual Minority Dev.,

32 (4) J. Clinical Child & Adolescent Psychol.,

satanic cain i ii

Lisa M. Diamond, Sexual Identity, Attractions,

and Behavior Among Young Sexual-Minority

Women Over a 2-Year Period, 36 Dev.

es SEE SEITE? ciscnincsisinnshieebindiencssmndsianianvedsiarenins

Nigel Dickson et al., Same Sex Attraction in a

Birth Cohort: Prevalence ard Persistence in

Early Adulthood, 56 Soc. Sci. & Med. 1607

ieee dia iii iii inaiddistl

Richard C. Friedman & Jennifer I. Downey,

Sexual Orientation and Psychoanalysis: Sex-

ual Science and Clinical Practice (2002)................

J.H. Gagnon, The Explicit and Implicit Use of

the Scripting Perspective in Sex Research, 1

Ann. Rev. Sex Research (1990)......................0..20005

Linda D. Garnets & Letitia Anne Peplau, A

New Look at Women’s Sexuality & Sexual

Orientation, CSW Update, Dec. 2006 (2006).....

Gary J. Gates et al., Marriage, Registration

and Dissolution by Same-Sex Couples in the

U.S., Williams Institute (2008) .....................cc cece

Gary J. Gates, How Many People Are Lesbian,

Gay, Bisexual, and Transgender?, Williams

I snniiicsipttiinnnicnedeteminnnnioneinnininieeinetinmeeees

viii

TABLE OF AUTHORITIES — Continued

John C. Gonsiorek & James D. Weinrich, The

Definition and Scope of Sexual Orientation,

in Homosexuality: Research Implications for

Public Policy 8 (John C. Gonsiorek & James

I ae a ene nineniatamnnns

John C. Gonsiorek et al., Definition and Meas-

urement of Sexual Orientation, in Suicide

and Life-Threatening Behavior 40 (1995)........

G.M. Herek et al., Internalized Stigma Among

Sexual Minority Adults, 56 J. Counseling

a ET 1 siipidencnnnimatnionennecnebianeintnibennen

G.M. Herek, Homosexuality, in 4 Encyclopedia

Psychol. 149 (ALE. Kazdin ed., 2000).................

AF. Jorm et al., Cohort Difference in Sexual Ori-

entation: Results from a Large Age-Stratified

Population Sample, 49 Gerontology 392

GD eccececccenensconsssnnensonccconsseensnnssnsesoensuseassoussscocss

Michael R. Kauth & Seth C. Kalichman, Sexu-

al Orientation and Development: An Interac-

tive Approach, in The Psychology of Sexual

Orientation, Behavior, and Identity: A Hand-

book 82 (Louis Diamant & Richard D.

STII. STII ciicirsiernianibininnemtegenabaumnpnonnenes

Kenneth S. Kendler et al., Sexual Orientation

in a U.S. National Sample of Twin and Non-

twin Sibling Pairs, 157 Am. J. Psychiatry

ee senesecstsaicnsnstincsmanerinnstenmstininmanscmmenneees

TABLE OF AUTHORITIES — Continued

Page

Ian Kerner, “Understanding females’ sexual

fluidity,” CNNHealth (Feb. 9, 2012), http://the

chart.blogs.cnn.com/2012/02/09/understanding-

females-sexual-fluidity/ .....................cccceceeeseceseeceees 22

Michael King & Elizabeth McDonald, Homo-

sexuals Who Are Twins, 160 Brit. J. Psychia-

EERE NE RA Pee Ane er a 16

Alfred C. Kinsey et al., Sexual Behavior in the

RARE LAT PSLED ETD ee Oe 13

Fritz Klein et al., Sexual Orientation: A Multi-

Variable Dynamic Process, J. Homosexuality,

EERE EE AE a ee ete er oe adiaeaiea 12

Niklas Langstrom et al., Genetic and Environ-

mental Effects on Same-sex Sexual Behavior:

A Population Study of Twins in Sweden,

Arch. Sexual Behav. 77 (2010).................ceeeceeceeeeees 16

Edward O. Laumann et al., The Social Organi-

zation of Sexuality: Sexual Practices in the

III i ccintneindincentacntnipeiaiseminngen 11, 19, 24

A.E. Moses & R.O. Hawkins, Jr., Counseling

Lesbian Women and Gay Men: A Life Issues

ee I eatitcinenenicatiiinncinanniianineniatbubetinienaties 10

Timothy F. Murphy, Gay Science: The Ethics of

Sexual Orientation Research (1997)...............2.0000+- 13

NPR, ‘Late-Life Lesbians’ Reveal Fluidity of

Sexuality (Aug. 7, 2010), http://Awww.npr.org/

templates/story/story.php?storyId=129050832........ 23

TABLE OF AUTHORITIES — Continued

Page

Letitia Anne Peplau, Rethinking Women’s Sexual

Ori Ses den Miateeiiiaaiadl , Relationship-

Focused Approach, 8 Personal Relationships

TSE aR le etn cena alee ene ear tc 24

Letitia Anne Peplau et al., The Development of

Sexual Orientation in Women, 10 Ann. Rev.

Sex Research, at 70 (1999)................-....2005. 10, 20, 21

Letitia Anne Peplau & Linda D. Garnets, A

New Paradigm for Understanding Women’s

Sexuality and Sexual Orientation, 56 J. Soc.

TS nA eee nee 15, 22

Todd A. Salzman & Michael G. Lawler, The

Sexual Person: Toward a Renewed Catholic

ee Se itntciniiicnsctidgemmninaninntainnieniel 8,13

Joseph P. Stokes et al, Predictors of Movement

Toward Homosexuality: A Longitudinal Study

of Bisexual Men, 43 J. Sex Res. 304 (1997)............ 23

Ann E. Tweedy, Polyamory as a Sexual Orien-

tation, 79 U. Cin. L. Rev. 1461 (2011) .............. 13, 14

Zhana Vrangalova & Ritch C. Savin-Williams,

Mostly Heterosexual and Mostly Gay/Lesbian:

Evidence of New Sexual Orientation Identi-

ties, Arch. Sexual Behav. 85 (2012) .................. 12, 27

Williams Institute, http-//williamsinstitute.law.

ucla.edu/ (last visited Jan. 11, 2012)...................... ll

TABLE OF AUTHORITIES — Continued

Page

Williams Institute: Sexual Minority Assess-

ment Research Team, Best Practices for Ask-

ing Questions about Sexual Orientation on

Surveys (Nov. 2009), http://williamsinstitute.

law.ucla.edu/wp-content/uploads/SMART-FINAL-

EE iiciestesiseinionanciintinniddinmssimnninnnimmedniahinisiaicinens 11

INTEREST OF AMICUS CURIAE'

Amicus Dr. Paul McHugh, M.D. is the University

Distinguished Service Professor of Psychiatry at the

Johns Hopkins University School of Medicine. From

1975 until 2001, Dr. McHugh was the Henry Phipps

Professor of Psychiatry and the director of the Depart-

ment of Psychiatry and Behavioral Science at Johns

Hopkins. At the same time, he was psychiatrist-in-

chief at the Johns Hopkins Hospital. His scholarship

and expertise include issues of gender identity and

sexual orientation. Dr. McHugh appears as an amicus

to address whether sexual orientation, like race and

gender, is a clearly definable (discrete) category or a

fixed and immutable characteristic — factors that are

highly relevant to whether this Court should declare

sexual orientation a new suspect class. He concludes

based on the current state of scientific knowledge

that sexual orientation is neither.

SUMMARY OF THE ARGUMENT

Powerful voices, including the United States De-

partment of Justice, seek to persuade this Court to

recognize sexual orientation as a suspect class. But

* No counsel for a party authored this brief in whole or in

part or made a monetary contribution to the preparation or sub-

mission of this brief. Letters from all parties consenting to the

filing of the brief have been submitted to the Clerk. Monetary

support for printing this Brief was provided by the Institute for

Marriage and Public Policy.

compelling reasons counsel against taking that mo-

mentous step. Even ignoring the substantial and

growing political power of the LGBT-rights move-

ment, which alone should be sufficient to reject the

demand for heightened scrutiny, sexual orientation is

neither a “discrete” nor “immutable” characteristic

in the legal sense of those terms. Under this Court’s

longstanding jurisprudence, therefore, sexual orienta-

tion should not be granted the “extraordinary protec-

tion from the majoritarian political process” entailed

by suspect-class status. Mass. Bd. of Ret. v. Murgia,

427 U.S. 307, 313 (1976) (citing San Antonio Indep.

Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)).

Numerous decisions express this Court’s under-

standing that heightened scrutiny is improper for

classifications that are insufficiently discrete. Dis-

creteness requires, at least, that a group or trait be

clearly defined. Sexual orientation fails that test. A

review of scientific studies demonstrates that there is

no scholarly consensus on how to define sexual orien-

tation, and that the various definitions proposed by

experts produce substantially different classes. In

contrast with race and sex, which are well-defined

and understood, and despite popular beliefs to the

contrary, sexual orientation remains a contested and

indeterminate classification.

This Court’s decisions also teach that immuta-

bility is a necessary characteristic for heightened-

scrutiny protection, and that the class-defining trait

must be determined solely by accident of birth. Un-

like the traits of race and sex, and again despite

popular beliefs to the contrary, no replicated scientific

study supports the view that sexual orientation is

determined at birth. Studies conclude, instead, that

sexual orientation is influenced by complex and un-

predictable factors. Even if, contrary to its past de-

cisions, the Court were to expand the concept of

immutability from a trait determined by accident of

birth to a personal trait that cannot change — and

there are surely many of those — scientific research

offers substantial evidence that sexual orientation is

far more fluid than commonly assumed.

This brief takes no position on the proper defini-

tion or cause of sexual orientation. Those are matters

for ongoing scholarly inquiry and debate. Amicus’s

more modest point is that scholars do not know

enough about what sexual orientation is, what causes

it, and why and how it sometimes changes for the

Court to recognize it as the defining feature of a new

suspect class.

ARGUMENT

I. Sexual Orientation Does Not Define a Dis-

crete and Insular Minority.

A. Threshold Questions Prevent the Court

from Defining a Class Based on Sexual

Orientation with Sufficient Clarity.

This Court has never suggested that sexual ori-

entation is a suspect class entitled to heightened

scrutiny under the Equal Protection Clause,’ and no

fewer than 10 federal circuits have considered and

rejected that claim.’ Only the Second Circuit, in a

decision striking down the federal Defense of Mar-

riage Act, has held that “homosexuals compose a class

that is subject to heightened scrutiny.” Windsor v.

United States, 699 F.3d 169, 185 (2d Cir. 2012).

* The Court’s leading cases on sexual orientation are Romer

v. Evans, 517 U.S. 620, 635 (1996), decided on “conventional”

rational-basis review, and Lawrence v. Texas, 539 U.S. 558, 575

(2003), decided under the Due Process Clause and not as a

matter of equal protection.

* See Massachusetts v. Dep't of Health & Human Servs., 682

F.3d 1, 9-10 (1st Cir. 2012); Thomasson v. Perry, 80 F.3d 915

(4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th

Cir. 2004); Equality Found. of Greater Cincinnati, Inc. v. City of

Cincinnati, 128 F.3d 289 (6th Cir. 1997); Ben-Shalom v. Marsh,

881 F.2d 454, 464 (7th Cir. 1989); Citizens for Equal Prot. v.

Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Witt v. Dep't of Air

Force, 527 F.3d 806, 821 (9th Cir. 2008); Milligan-Hitt v. Bd. of

Trustees of Sheridan County Sch. Dist. No. 2, 523 F.3d 1219,

1233 (10th Cir. 2008); Lofton v. Sec’y of Dept of Children &

Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004); Steffan

v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc); Woodward v.

United States, 871 F.2d 1068 (Fed. Cir. 1989).

Adding sexual orientation to the catalog of sus-

pect classes is a long and consequential step that the

Court’s established approach to the Equal Protection

Clause does not support. The Court applies height-

ened scrutiny to certain classifications, such as race,

alienage, national origin, and gender, to protect “‘dis-

crete and insular’ group[s], in need of ‘extraordinary

protection from the majoritarian political process.”

Murgia, 427 U.S. at 313 (quoting Rodriguez, 411 U.S.

at 28).‘ But the Court has repeatedly declined to ap-

ply heightened scrutiny where discreteness or insu-

larity is lacking. Jd. at 313-314 (“old age does not

define a ‘discrete and insular’ group” (quoting United

States v. Carolene Products Co., 304 U.S. 144, 152-53

n.4)); Rodriguez, 411 U.S. at 25-28 (1973) (explain-

ing the law in question did not discriminate against

any “definable category of ‘poor’ people,” but rather

against a “large, diverse, and amorphous class”);

Lyng v. Castillo, 477 U.S. 635, 638 (1986) (noting

close relatives are not a suspect class because they

“do not exhibit obvious, immutable, or distinguishing

* Although religion is often listed as a suspect class for

equal protection purposes, see, e.g., Burlington N. R.R. Co. v.

Ford, 504 U.S. 648, 651 (1992), heightened scrutiny for religious

discrimination arises directly from the First Amendment rather

than from factors like immutability and political powerlessness

that justify suspect-class status under the Equal Protection

Clause of the Fourteenth Amendment. Hence, once protections

under the Free Exercise and Establishment Clauses have been

satisfied, any further religious discrimination claims under the

Equal Protection Clause is subject only to rational basis review.

See Locke v. Davey, 540 U.S. 712, 720 n.3 (2004).

characteristics that define them as a discrete group”);

City of Cleburne, Tex. v. Cleburne Living Center, 473

U.S. 432, 445 (1985) (denying protected status to the

mentally disabled in part because they are a “large

and amorphous” class). These decisions teach that

“where individuals in the group affected by a law

have distinguishing characteristics relevant to inter-

ests the State has the authority to implement, the

courts have been very reluctant, as they should be

in our federal system and with our respect for the

separation of powers, to closely scrutinize legislative

choices as to whether, how, and to what extent those

interests should be pursued.” City of Cleburne, 473

U.S. at 441-42.

The Court’s reluctance to create new suspect

classes is particularly appropriate here because sex-

ual orientation is a less discrete characteristic than

age or poverty, which the Court has already refused

to accord suspect-class status. In Rodriguez, for in-

stance, the Court rejected the claim that the Texas

statutory regime for allocating funding for public

schools violated the Equal Protection Clause by dis-

criminating against the poor. Rodriguez, 411 U.S.

at 54-55. The Court sharply criticized lower courts

for “virtually assum[ing] their findings of a suspect

classification through a simplistic process of analysis:

since, under the traditional systems of financing pub-

lic schools, some poorer people receive less expensive

educations than other more affluent people, these

systems discriminate on the basis of wealth.” Id. at

19. The Court warned that “[t]his approach largely

ignores the hard threshold questions, including whether

it makes a difference, for purposes of consideration

under the Constitution, that the class of disadvan-

taged ‘poor’ cannot be identified or defined in custom-

ary equal protection terms.” Jd. Such “hard threshold

questions” determine whether a class ought to be

accorded special treatment under the Fourteenth

Amendment — questions that begin with whether the

equal protection claim is clothed with a “definitive

description of the classifying facts or delineation of

the disfavored class.” Id.; accord City of Cleburne, 473

U.S. at 442 & n.9 (rejecting mental retardation as a

suspect class).

In Windsor the Second Circuit “ignore[d] the hard

threshold questions,” by reasoning that a class is

sufficiently discrete to qualify for heightened scrutiny

if its identifying “characteristic invites discrimination

when it is manifest.” Windsor, 699 F.3d at 184. A test

so indeterminate conflicts with Murgia, Rodriguez,

and City of Cleburne, because age, poverty, and men-

tal disability can “invite[] discrimination when [they

are] manifest.” Jd. Certain types of sexual orientation

may invite discrimination in particular circumstances,

but it does not follow that sexual orientation is the

characteristic of a discrete class. To be sure, sexual

orientation characterizes the difference between het-

erosexuals, gay men, lesbians, and bisexuals. But for

reasons amicus explains below, sexual orientation

also may characterize points along a continuum of

sexual attraction, sexual behavior, and sexual iden-

tity where individual categories are anything but

distinct. For that reason alone, sexual orientation

should be rejected as the basis for heightened scru-

tiny because it “cannot be identified or defined in

customary equal protection terms.” Rodriguez, 411

U.S. at 19.

B. Social Science Experts Raise Serious

Doubts About the Definability of Sexual

Orientation.

Deep conceptual and empirical difficulties pre-

vent sexual orientation from being used to define a

discrete class of persons. Sexual orientation is a com-

plex and amorphous phenomenon that often defies

consistent and uniform definition. “There is currently

no scientific or popular consensus .. . that definitively

‘qualify an individual as lesbian, gay, or bisexual.”

Lisa M. Diamond, New Paradigms for Research on

Heterosexual and Sexual Minority Dev., 32 (4) J.

Clinical Child & Adolescent Psychol., 492 (2003).

“Much of the confusion about sexual orientation oc-

curs because there is no single agreed upon definition

of the term. ... There is no one universally accepted

definition of sexual orientation, nor of who is bi-

sexual, lesbian, or gay.” Gail S. Bernstein, Defining

Sexual Orientation, Selfhelp Magazine (Sept. 18,

2012), http://www.selfhelpmagazine.com/articles/sexual_

orientation. See also Todd A. Salzman & Michael G.

Lawler, The Sexual Person: Toward a Renewed Catho-

lic Anthropology 65 (2008) (“The meaning of the

phrase ‘sexual orientation’ is complex and not univer-

sally agreed upon.”).

Scientific literature often mentions three differ-

ent ways to define homosexuality. “Does it mean

someone who engages in same-sex sexual behavior?

Someone who fantasizes about such acts? Someone

who will identify himself or herself as gay or lesbian?”

M.V. Lee Badgett, Money, Myths, & Change: The Eco-

nomic Lives of Lesbians & Gay Men 4 (2001). Most

definitions of sexual orientation “include[] compo-

nents of at least one of three” of the dimensions of

behavior, attraction, and identity. Laura Dean et al.,

Lesbian, Gay, Bisexual, and Transgender Health:

Findings and Concerns, J. Gay & Lesbian Med. Ass’n,

Sept. 2000, Vol. 4, at 135. Some definitions include all

three and, additionally, membership in a community

defined by sexual orientation. The APA’s definition

holds that “[sJexual orientation refers to an enduring

pattern of emotional, romantic, and/or sexual attrac-

tions to men, women, or both sexes. Sexual orienta-

tion also refers to a person’s sense of identity based on

those attractions, related behaviors, and membership

in a community of others who share those attrac-

tions.” Am. Psychol. Ass’n, Sexual Orientation and

Homosexuality: Answers to Your Questions for a Better

Understanding, What Is Sexual Orientation?, http://

www.apa.org/topics/sexuality/orientation.aspx?7item=2

(last visited Jan. 11, 2012) (emphasis added).

The problem with sexual orientation, so defined,

is that many people are not consistent across all three

dimensions. “There is a physical orientation, an affec-

tional orientation, and a fantasy orientation, with each

of those three further divided into a past (historical)

component and a present component. A person’s be-

havior may be totally at variance with all aspects of

orientation, and the various parts of orientation may

not all agree.” AE. Moses & R.O. Hawkins, Jr., Coun-

seling Lesbian Women and Gay Men: A Life Issues

Approach 43 (1982). “The more carefully researchers

map these constellations, differentiating, for example,

between gender identity and sexual identity, desire

and behavior, sexual versus affectionate feelings,

early-appearing versus late-appearing attractions

and fantasies, or social identifications and sexual pro-

files, the more complicated the picture becomes be-

cause few individuals report uniform intercorrelations

among these domains.” Lisa M. Diamond & Ritch C.

Savin-Williams, Gender & Sexual Identity, in Hand-

book Applied Dev. Sci. 101, 102 (Richard M. Lerner

et al. eds., 2003). Many other researchers also ac-

knowledge discordance between components of sexual

orientation. See John C. Gonsiorek & James D.

Weinrich, The Definition and Scope of Sexual Orien-

tation, in Homosexuality: Research Implications for

Public Policy 8 (John C. Gonsiorek & James D.

Weinrich eds., 1991) (“It can be safely assumed that

there is no necessary relationship between a person’s

sexual behavior and self-identity unless both are in-

dividually assessed.”); Letitia Anne Peplau et al., The

Development of Sexual Orientation in Women, 10 Ann.

Rev. Sex Research, at 70 (1999) (“[T]here is ample

documentation that same-sex attractions and behav-

iors are not inevitably or inherently linked to one’s

identity.”).

Practical consequences follow from these defini-

tional uncertainties. Different definitions produce

substantially different estimates of the size of the

homosexual population. “Sizable numbers of people

reporting only same-sex attraction and/or behavior

self-identify as heterosexual or bisexual. Similarly,

sizable numbers of those who identify as gay or

lesbian report some sexual partners of a different

sex and/or some level of attraction to different sex

partners.” Williams Institute: Sexual Minority As-

sessment Research Team, Best Practices for Asking

Questions about Sexual Orientation on Surveys, 6-

7 (Nov. 2009), http://williamsinstitute. law.ucla.edu/

wp-content/uploads/SMART-FINAL-Nov-2009.pdf.° The

“Chicago Sex Survey,” considered one of the most re-

liable scholarly efforts to determine sexual practices

in the United States, reported that of the portion of

the population exhibiting at least one of the three

components of sexual orientation, only 15% of the

women and 24% of the men exhibited all three. See

Edward O. Laumann et al., The Social Organization

of Sexuality: Sexual Practices in the United States

299 (1994). This and other national studies led one

group of researchers to conclude that “(djepending

upon how [the class] is defined and measured, 1-21%

of the population could be classified as lesbian or

gay to some degree, with the remainder classified as

* The Williams Institute is an LGBT-rights think tank at

UCLA Law. See Williams Institute, http://williamsinstitute law.

ucla.edu/ (last visited Jan. 11, 2012).

bisexual or heterosexual to some degree.” Dean et al.,

supra, at 135.

Even more problematic, the definitional complex-

ity is not limited to the familiar categories of straight,

homosexual, bisexual, and their variations. Some re-

searchers believe that “sexual orientation cannot be

reduced to a bipolar or even a tripolar process, but must

be recognized within a dynamic and multi-variate

framework.” Fritz Klein et al., Sexual Orientaticn: A

Multi-Variable Dynamic Process, J. Homosexuality,

11 (1), at 35-49 (1985). Others recommend the use of

a 17-question, multiple-subpart test to measure sex-

ual orientation. John C. Gonsiorek et al., Definition

and Measurement of Sexual Orientation, in Suicide

and Life-Threatening Behavior 40 (1995). Still other

researchers say that sexual orientation must be

analyzed on a continuum. See Zhana Vrangalova &

Ritch C. Savin-Williams, Mostly Heterosexual and

Mostly Gay/Lesbian: Evidence of New Sexual Orienta-

tion Identities, Arch. Sexual Behav. 85, 96 (2012)

(“Taken together, these data suggest that sexual

orientation is a continuously distributed characteris-

tic and decisions to categorize it into discrete units,

regardless of how many, may be useful for particular

research questions but are ultimately external impo-

sitions that are not consistent with reports of indi-

viduals.”); Committee on Lesbian Health Research

Priorities, Inst. of Med., Lesbian Health 25-26 (Andrea

L. Solarz ed., 1999) (“In general, sexual orientation

is most often described as including behavioral,

affective (i.e., desire or attraction), and cognitive (i.e.,

identity) dimensions that occur along continua.”). And

others, with the caveat that “the concept of sexual

onentation is a product of contemporary Western

thought,” apply a distinct definition for a specific re-

search purpose Timothy F. Murphy, Gay Science: The

Ethics of Sexual Orientation Research 15-24 (1997);

Alfred C. Kinsey et al., Sexual Behavior in the Hu-

man Male 639 (1948) (“Males do not represent two

discrete populations, heterosexual and homosexual.”).

Given the complexities of defining sexual orienta-

tion, it should not be surprising that some experts

openly admit that “the categories of homosexual, gay,

and lesbian do not signify a common, universal expe-

rience.” Salzman & Lawler, supra, at 2. Because there

is nO common experience, one can anticipate argu-

ments for an ever-broadening definition of exactly

who belongs in a judicially-protected class founded on

sexual orientation. “It will be useful to expand our

notions of sexual orientation to include more than

just bisexuality, heterosexuality and homosexual-

ity.... With respect to various components of sexual

evlentation. an individual may be heterosexual, ho-

mosexual, bisexual, as well as fetishistic, trans-

vestitic, zoophiliac, and so on. It is important to note

that these are not mutually exclusive categories.”

John P. DeCecco, Gay Personality and Sexual Label-

ing 16 (1985). Even polyamory, “a preference for

having multiple romantic relationships simultane-

ously,” has been defended as “a type of sexual orienta-

tion for purposes of anti-discrimination law.” Ann

E. Tweedy, Polyamory as a Sexual Orientation, 79

U. Cin. L. Rev. 1461, 1462 (2011). And “asexuality” —

the absence of any sexual attraction — is being dis-

cussed as a possible sexual orientation. Jd. at 1463

n.4. Its very capaciousness might lead one reasonably

to “conclude there is serious doubt whether sexual

orientation is a valid concept at all. Social construc-

tionism suggests that there is nothing ‘real’ about

sexual orientation except a society's construction of

it.” Gonsiorek et al., supra, at 4.

Because scientific experts cannot agree on how to

define it with substantial certainty, this Court should

reject the category of sexual orientation as incapable

of being “identified or defined in customary equal

protection terms.” Rodriguez, 411 U.S. at 19.

Ii. Sexual Orientation is Not an Immutable

Characteristic.

A. Immutability Means Solely an Accident

of Birth.

Sexual orientation also fails the ordinary stan-

dards for heightened scrutiny because it is not immu-

table. Every class to which the Supreme Court has

applied heightened scrutiny is defined by an immuta-

ble characteristic. Parham v. Hughes, 441 U.S. 347,

351 (1979) (citing McLaughlin v. Florida, 379 U.S.

184 (1964) (race); Oyama v. California, 332 U.S. 633

(1948) (national origin); Graham v. Richardson, 403

U.S. 365 (1971) (alienage); Gomez v. Perez, 409 U.S.

535 (1973) (illegitimacy); Reed v. Reed, 404 U.S. 71

(1971) (gender)). Moreover, the Supreme Court has

refused to apply heightened scrutiny to classes that

are not marked by an immutable characteristic. E.g.,

Plyler v. Doe, 457 U.S. 202, 220 (1982) (undocumented

aliens); Lyng v. Castillo, 477 U.S. 635, 639 (1986)

(close relatives). The Court’s jurisprudence makes

clear that immutability is a necessary condition for

recognizing a new protected class.

The Court’s precedents teach that immutability

denotes a characteristic “determined solely by the ac-

cident of birth.” Frontiero v. Richardson, 411 U.S.

677, 686 (1973). As then-Jidge Ginsburg explained,

“the ‘immutable characteristic’ notion ... does not

mean, broadly, something done that cannot be un-

done. Instead, it is a trait ‘determined solely by ac-

cident of birth.’” Quiban v. Veterans Administration,

928 F.2d 1154, 1160 n.13 (D.C. Cir. 1991) (quoting

Schweiker v. Wilson, 450 U.S. 221, 229 n.11 (1981)).

B. Sexual Orientation Is Not Solely an Ac-

cident of Birth.

Sexual orientation, unlike race or gender, is not

determined solely or even primarily at birth — there is

no convincing evidence that biology is decisive. On

the contrary, some researchers have concluded that

biological and genetic factors play little to no role

in sexual orientation. E.g., Letitia Anne Peplau &

Linda D. Garnets, A New Paradigm for Understand-

ing Women’s Sexuality and Sexual Orientation, 56

J. Soc. Issues 329, 332 (2000) (“Although additional

research will fill in gaps in our knowledge, there is no

reason to expect that biological factors play anything

other than a minor and probably indirect role in

women’s sexual orientation.”). Rather, there is “sub-

stantial indirect evidence in support of a socialization

model at the individual level.” Peter S. Bearman &

Hannah Bruckner, Opposite-Sex Twins and Adoles-

cent Same-Sex Attraction, 107 Am. J. Soc. 1179, 1180

(2002) (finding “no support for genetic influences on

same-sex preference net of social structural con-

straints.”).

Studies of identical twins have confirmed that

same-sex attraction is not solely determined by he-

redity or other biological factors. See id. at 1196-

97 (finding concordance rates of 6.7% for identical

twins); Niklas Langstrom et al., Genetic and Envi-

ronmental Effects on Same-sex Sexual Behavior: A

Population Study of Twins in Sweden, Arch. Sexual

Behav. 77-78 (2010) (finding concordance rates of

18% for male identical twins and 22% for female

identical twins); Kenneth S. Kendler et al., Sexual

Orientation in a U.S. National Sample of Twin and

Nontwin Sibling Pairs, 157 Am. J. Psychiatry 1843,

1845 (2000) (finding concordance rates of 31.6% for

identical twins). Because there is not 100% concor-

dance among identical twins, genetic factors are not

the sole cause of sexual orientation. See Michael King

& Elizabeth McDonald, Homosexuals Who Are Twins,

160 Brit. J. Psychiatry 407, 409 (1992) (concluding

that “genetic factors are insufficient explanation of

the development of sexual orientation,” because “(t]he

co-twins of men and women who identify themselves

as homosexual appear to have a potential for a range

of sexual expression.”).

Other studies have found strong correlations

between sexual orientation and external factors, such

as family setting, environment, and social conditions,

which are difficult if not impossible to explain under

exclusively biological theories. Professors at Colum-

bia University reported, for instance, that “[a]mong

male [opposite-sex] twins, the proportion reporting a

same-sex romantic attraction is twice as high among

those without older brothers (18.7%) than among those

with older brothers (8.8%).” Bearman & Bruckner,

supra, at 1196-97. Researchers in Australia discov-

ered “a major cohort effect in same-gender sexual

behavior” and noted that this had “implications for

purely biological theories of sexual orientation, be-

cause there must be historical changes in environ-

mental factors that account for such an effect.” A.F.

Jorm et al., Cohort Difference in Sexual Orientation:

Results from a Large Age-Stratified Population Sam-

ple, 49 Gerontology 392, 393 (2003). The Chicago Sex

Survey found that men were twice as likely and

women nine times as likely to identify as gay or

bisexual if they had completed college. Laumann et

al., supra, at 305. Researchers in New Zealand noted

a correlation between sexual orientation and certain

social conditions: “The overall higher rate of same-sex

attraction and contact for women in New Zealand in

relation to other comparable countries, almost cer-

tainly represents a recent increase in prevalence. As

such it argues strongly against a purely genetic

explanation and suggests the environment can have a

significant influence. It might be related to social

changes which have happened with particular inten-

sity and rapidity in this country.” Nigel Dickson et al.,

Same Sex Attraction in a Birth Cohort: Prevalence

and Persistence in Early Adulthood, 56 Soc. Sci. &

Med. 1607, 1613 (2003).

Studies like these have led scientists to conclude

that sexual orientation is influenced by a variety

of factors beyond genetics or biology alone. See, e.g.,

G.M. Herek, Homosexuality, in 4 Encyclopedia Psychol.

149, 150 (A.E. Kazdin ed., 2000) (political or aesthetic

values); J.H. Gagnon, The Explicit and Implicit Use

of the Scripting Perspective in Sex Research, 1 Ann.

Rev. Sex Research, at 1-43 (1990) (visible gay and

lesbian communities); M.V. Lee Badgett, Sexual Ori-

entation Discrimination: An International Perspective

23 (2007) (socioeconomic outcomes); Linda D. Garnets

& Letitia Anne Peplau, A New Look at Women’s

Sexuality & Sexual Orientation, CSW Update, Dec.

2006, at 5 (2006) (sexual orientation is shaped by

“cultural beliefs about gender and sexuality, by kin-

ship systems, by economic opportunities, by social

status and power, by attitudes about women’s roles,

by whether or not sexual identities are recognized in

a given culture, and by attitudes of acceptance versus

rejection toward sexual minorities.”).°

* It is sometimes suggested that sexual orientation is ge-

netically based, and that its development and expression owe, to

(Continued on following page)

In brief, available evidence casts serious doubt on

the simplistic, popular notion that sexual orientation

is biologically determined. There is simply no firm

evidence to support that conclusion, only unproven

theories. As the American Psychiatric Association’s

latest statement on the issue summarizes: “Currently

there is a renewed interest in searching for biological

etiologies for homosexuality. However, to date there

are no replicated scientific studies supporting any

specific biological etiology for homosexuality.” See Am.

Psychiatric Ass’n, LGBT-Sexual Orientation, http://

www.psychiatry.org/mental-health/people/lgbt-sexual-

orientation (last visited Jan. 11, 2012) (emphasis

some limited extent, to very early life experiences. In this view,

sexual orientation is like Jeft-handedness, which surely appears

to be both inherited and a product of early childhood develop-

mental. There is, however, little social scientific evidence to

support this hypothesis. Indeed, if this hypothesis were sound,

one would expect that sexual orientation — like left-handedness

— would be randomly and uniformly distributed throughout the

population. But it is not so distributed. Laumann and collabora-

tors have shown, for example, that there is a remarkable

difference in the rates of male homosexual behavior in America,

depending upon whether the subject lived through adolescence

in a rural or an urban area. Whereas only 1.2% of males with

rural adolescence had a male sexual partner in the year of

survey, those with metropolitan adolescence had nearly four

times (4.4%) that rate of male sexual partners. Laumann, et al,

supra, at 303-04.

One reflection of the social and cultural influences upon

sexual orientation was supplied by Justice Kennedy when he

wrote, for the Court in Lawrence v. Texas, that “the concept of

the homosexual as a distinct category of person did not emerge

until the late 19th century.” 539 U.S. at 568.

added). See also Peplau et al., Development of Sexual

Orientation, supra, at 81 (“To recap, more than 50

years of research has failed to demonstrate that bi-

ological factors are a major influence in the develop-

ment of women’s sexual orientation. ... Contrary to

popular belief, scientists have not convincingly dem-

onstrated that biology determines women’s sexual

orientation.”). And some research suggests that bi-

ology does not even play an important role in deter-

mining sexual orientation. See Bearman & Bruckner,

supra, at 1180. As such, “the assertion that homosex-

uality is genetic is so reductionistic that it must be

dismissed out of hand as a general principle of psy-

chology.” Richard C. Friedman & Jennifer I. Downey,

Sexual Orientation and Psychoanalysis: Sexual Sci-

ence and Clinical Practice 39 (2002).

Sexual orientation is not immutable. Unlike

every other class-defining trait accepted by the Court,

such as race or gender, the best available evidence

concludes that sexual orientation is not “a trait

‘determined solely by accident of birth.’” Quiban, 928

F.2d at 1160 n.13 (Ginsburg, J.).

C. Sexual Orientation Can and Often Does

Change Over Time.

Even if the concept of immutability were ex-

panded from a trait determined by accident of birth to

a trait that is firmly resistant to change, there is

significant evidence that sexual orientation is more

plastic than commonly supposed.’ Changes in sexual

orientation are difficult to measure because of the

definitional ambiguities described above, but re-

searchers have found that all three of the most fre-

quently mentioned dimensions of sexual orientation

— attraction, behavior, and identity — are subject to

change over time. Moreover, the presence of a large

bisexual population is evidence that sexual orienta-

tion is, for some people and to some extent, fluid.

Research suggests that a person’s sexual orienta-

tion is not entirely fixed and may be influenced by

individual preference or choice. See Lisa M. Diamond

& Ritch C. Savin-Williams, Explaining Diversity in

the Development of Same-Sex Sexuality Among Young

Women, 56 J. Soc. Issves 297, 301 (2000) (“Contrary

to the notion that most sexual minorities undergo a

one-time discovery of their true identities, 50% of [a

study’s] respondents had changed their identity label

more than once since first relinquishing their hetero-

sexual identity.”). Sexual orientation appears to be

especially plastic for women. See Peplau et al., Devel-

opment of Sexual Orientation, supra, at 93 (noting the

“astonishing sexual plasticity of the human female”).

” Of course, the Court has never suggested such an expan-

sive approach, which could potentially lead to dozens of new

suspect classes based on personal traits or conditions that are

nearly impossible to change, such as certain mental illnesses or

physical disabilities. The point is that even under a more liberal

approach sexual orientation would not qualify.

“Female sexual development is a potentially continu-

ous, lifelong process in which multiple changes in

sexual orientation are possible. ... Women who have

had exclusively heterosexual experiences may devel-

op an attraction to other women, and vice versa.”

Garnets & Peplau, A New Look, supra, at 5. Re-

searchers have found that “both women’s identifi-

cation as lesbian, bisexual, or heterosexual and

women’s actual behavior can vary over time.” Peplau

& Garnets, A New Paradigm, supra, at 333; see also

Lisa M. Diamond, Sexual Identity, Attractions, and

Behavior Among Young Sexual-Minority Women Over

a 2-Year Period, 36 Dev. Psychol. 241, 247 (2000)

(“Half of the young women ... relinquished the first

sexual-minority identity they adopted.”). Indeed, a

10-year study of 79 non-heterosexual women reported

that 67% changed their identity at least once and

36% changed their identity more than once. Lisa M.

Diamond, Female Bisexuality from Adolescence to

Adulthood: Results: from a 10-Year Longitudinal

Study, 44 Dev. Psychol. 5, 9 (2008)."

* Professor Diamond’s seminal research on the fluidity of

female sexuality was summarized in a widely-praised book pub-

lished by Harvard University Press. See Lisa M. Diamond, Sex-

ual Fluidity: Understanding Women’s Love and Desire 3 (2008)

(“[O)ne of the fundamental, defining features of female sexuality

_ is its fluidity. We are now on the brink of a revolutionary new

understanding of female sexuality that has profound scientific

and social implications.”). Her work on the fluidity of female

sexuality has been repeatedly profiled in the mainstream media.

See, e.g., lan Kerner, “Understanding females’ sexual fluidity,”

CNNHealth (Feb. 9, 2012), http?//thechart.blogs.cnn.com/2012/02/

(Continued on following page)

Research also shows changes over time in the

intensity of same-sex attraction. When asked to rate

their attraction to members of the same sex on a

scale, many individuals vary in their own estimation

over time, with some becoming more “gay” and others

becoming less “gay.” A study of the same-sex attrac-

tion of bisexual men reported that “homosexuality is

not some monolithic construct one moves toward or

from in a linear way; movement toward homosexual-

ity fails to capture the fluid and contextual nature

of sexuality. We also acknowledge that changes in

sexual feelings and orientation over time occur in all

possible directions.” Joseph P. Stokes et al, Predictors

of Movement Toward Homosexuality: A Longitudinal

Study of Bisexual Men, 43 J. Sex Res. 304, 305 (1997)

(finding that 34% of respondents moved toward

homosexuality, 17% moved away, and 49% did not

change). A study of same-sex attraction in a New

Zealand birth cohort revealed “a surprising degree of

change over time. Ten percent of men, and nearly a

quarter of women, reported same-sex attraction at

any time, but this nearly halved for current attrac-

tion at age 26. The changes were not just in one

direction.” Dickson et al., supra, at 1613.

Extensive studies of the real-world experiences of

men and women sharply rebut the notion that sexual

orientation is unchanging. The Chicago Sex Survey

09/understanding-females-sexual-fluidity/, NPR, ‘Late-Life Les-

bians’ Reveal Fluidity Of Sexuality (Aug. 7, 2010), http://www.

npr.org/ templates/story/story. php?storyId= 129050832.

found that of those who had at least one same-sex

partner in the last five years, over half of the men

and two-thirds of the women also had an opposite-sex

partner in the same time period. Laumann et al.,

supra, at 310-11. Scholarly surveys also show that a

significant portion of individuals in same-sex rela-

tionships had previously been married to someone of

the opposite sex. See, e.g., Gary J. Gates et al., Mar-

riage, Registration and Dissolution by Same-Sex

Couples in the U.S., Williams Institute 2 (2008)

(reviewing data from three states and finding that

“more than one in five individuals in same-sex cou-

ples who marry or register have previously been

married to a different-sex partner.”); Sean Cahill et

al., Family Policy: Issues Affecting Gay, Lesbian,

Bisexual and Transgender Families, The National

Gay and Lesbian Task Force Policy Institute, at 59

(2002) (“According to the 1990 U.S. Census, 31 per-

cent of lesbians and bisexual women in same-sex

relationships and 19 percent of gay or bisexual men

in same-sex relationships were once married to a

person of the other sex.”). One researcher captured

the overall direction of the scientific research when

she noted that “[a]lthough some may think of sexual

orientation as determined early in life and relatively

unchanging from then on, growing evidence indicates

that the nature of a woman’s intimate relationships

can change throughout her life and differ across so-

cial settings.” Letitia Anne Peplau, Rethinking Women’s

Sexual Orientation: An Interdisciplinary, Relation-

ship-Focused Approach, 8 Personal Relationships 1, 5

(2001). See also Herek et al., Internalized Stigma

Among Sexual Minority Adults, 56 J. Counseling

Psychol. 32, at 37, 39 (2009) (study finding that 13%

of gay men, 30% of lesbians, 41% of bisexual men,

and 55% of bisexual women report “[slome,” “fair

amount,” or “a lot” of choice with respect to their

sexual orientation). Professor Herek, one of plaintiffs’

experts in the Hollingsworth trial, conceded that while

current sexual identity is for “betting” purposes a

good predictor of future sexual behavior, “you should

also realize that for some individuals that would not

be the case.” Trial Tr. 2211. Indeed, “‘if you are trying

to predict for any specific individual whether their

identity will predict their sexual behavior in the

future, especially, that can be problematic.’” Jd. at

2212 (quoting Prof. Herek’s deposition testimony).

One of the challenges of research in this evolving area

is that, as Professor Herek further admitted, in de-

scribing changes in their own sexuality “people don’t

always have a knowledge of their mental processes.”

Id. at 2213.

One might defend the immutability of sexual

orientation by insisting that anyone whose sexual

orientation changes over time is bisexual and that

bisexuality is a discrete category of sexual orienta-

tion. But lumping everyone whose behavior does

change into a broad residual category conveniently

manipulates theory to blot out the primary evidence

that sexuality is often mutable and not an essential

and fixed characteristic of human behavior. See

Diamond, Female Bisexuality, supra, at 5, 6 (“Accord-

ing to an essentialist perspective, individuals are

thought to be endowed with fixed, early developing

sexual predispositions that manifest themselves in

consistent patterns of same-sex or other-sex desire

over the life course.... Bisexual attractions pose a

quandary for this model because such attractions

necessarily create the potential for change over

time.”).

If human sexual preference were generally fluid

rather than fixed, one would expect that some indi-

viduals would fall at the tails of the bell curve where

behavior, attraction, and identity remain exclusively

homosexual or heterosexual, but that most would ex-

hibit at least some variation along the sexual orienta-

tion continuum with respect to attraction, behavior,

and identity. Research confirms this expectation. A

recent report by the Williams Institute averaged the

results of five recent population-based surveys, and

found that of the 3.5% of the population identifying as

LGB, over half (1.8%) identifies as bisexual. Gary J.

Gates, How Many People Are Lesbian, Gay, Bisexual,

and Transgender?, Williams Institute 1 (2011). Above

and beyond those self-reporting an LGB identity,

4.7% of the population admits to some same-sex

sexual experience and 7.5% acknowledges some de-

gree of same-sex attraction — numbers that are much

higher than the population of self-identified homo-

sexuals. Id.

Another recent survey confirmed the plasticity of

sexual orientation by including two additional catego-

ries — “mostly heterosexual” and “mostly homosexual”

— when asking participants to identify their sexual

orientation. Vrangalova & Savin-Williams, supra, at

85. Of the 1631 participants, 14% of men and 27% of

women chose one of the three non-exclusive identities

(mostly heterosexual, bisexual, mostly homosexual),

while only 5% of men and 2% of women chose an

exclusively homosexual identity. Jd. at 89. Less than

half of those adopting an exclusive identity also re-

ported exclusive behavior and attraction (48% of men

and 39% of women). Jd. at 94. These results suggest

that sexual orientation is a fluid concept, not one that

in practice denotes entirely distinct or fixed cate-

gories.

The notion that choice powerfully influences

some persons’ sexual orientation is highly controver-

sial, but some studies conclude that for some women

self-identity as a lesbian is experienced as a personal

choice rather than an immutable constraint. Dia-

mond & Savin-Williams, Explaining Diversity, supra,

at 298 (noting that “variability in the emergence and

expression of female same-sex desire during the life

course is normative rather than exceptional.”). Re-

searchers Charbonneau and Lander interviewed 30

women who had spent half their lives as heterosexu-

als, married, had children, and then in midlife be-

came lesbian. Some of these women explained their

lesbianism as a process of self-discovery. But a “se-

cond group of women ... regarded their change more

as a choice among several options of being lesbian,

bisexual, celibate or heterosexual.” Karen L. Bridges

& James M. Croteau, Once-Married Lesbians: Facili-

tating Changing Life Patterns, 73 J. Counseling &

Dev. 134, 135 (1994) (describing C. Charbonneau &

P.S. Lander, Redefining Sexuality: Women Becoming

Lesbian in Mid-Life, in Lesbians at Mid-Life, at 35

(B. Sang et al. eds., 1991)).

In short, scientific research on sexual identity, at-

traction, and behavior strongly suggests “that sexual

orientation is not static and may vary throughout the

course of a lifetime,” especially in women. Michael R.

Kauth & Seth C. Kalichman, Sexual Orientation and

Development: An Interactive Approach, in The Psy-

chology of Sexual Orientation, Behavior, and Identity:

A Handbook 82 (Louis Diamant & Richard D.

McAnulty eds., 1995). These studies show that even if

the concept of immutability were extended to mean a

substantial resistance to change, available evidence

tends to show that sexual orientation is more plastic

than commonly supposed.

CONCLUSION

Sexual orientation should not be recognized as a

new suspect class. In contrast with other suspect

classes, it is neither discrete (clearly definable) nor

immutable. There is no scientific consensus on how to

define sexual orientation, and the various definitions

proposed by experts produce substantially different

classes. Nor is there any convincing evidence that

sexual orientation is biologically determined; rather,

research tends to show that at least for some persons

sexual orientation is mutable (or at least malleable)

over time. These are not the characteristics of a

proper suspect class.

For the foregoing reasons, the Court should con-

clude that classifications based on sexual orientation

are not subject to heightened scrutiny.

Respectfully submitted,

GERARD V. BRADLEY

Counsel of Record

NOTRE DAME LAW SCHOOL

3156 Eck Hall

Notre Dame, IN 46556

(574) 631-8385

Gerard. V.Bradley.16@nd.edu

Counsel for Dr. Paul McHugh

April 3, 2015

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