May 19, 2008

Traditional Values Coalition Defers to Science

Posted at 9:00 am (Pacific Time)

The Traditional Values Coalition’s May 15th response to the California Supreme Court’s marriage equality ruling contained a big surprise.

I’m not referring to their view of the decision itself, which was predictably negative. TVC characterized it as a “stunning example of the ultimate tyranny of judicial activism” that “makes the voters’ will unconstitutional” and “effectively destroyed the sanctity of marriage defined as between only a man and a woman.”

No, the surprise was in their explanation of why they believe the California justices were wrong to rule that sexual orientation is a suspect classification under California law, a decision that means the California courts will now subject any laws and policies that discriminate against sexual minorities to “strict scrutiny,” the same standard that is used to evaluate the legality of gender and racial discrimination.

According to the TVC,

….This decision is also fundamentally wrong because homosexuality has never been declared by the American Psychiatric Association, the American Psychological Association, or the National Academy of Sciences as being completely genetic, nor does it fulfill the other requirements for minority-status classification. Therefore, it is still a behavior-based lifestyle choice that should not be given the equivalent of insular and discreet minority status.

Disregard the phrase about genetics. The question of whether or not sexual orientation is innate has long been a concern of the TVC’s leader, Rev. Lou Sheldon. The truly interesting subtext here is that the TVC now accepts scientific authority — including the two APAs — as the appropriate source for factual information about sexual orientation.

What a refreshing departure from the Christian Right’s frequent attempts to distort and subvert the findings of scientific research!

Since the TVC would surely never do anything so intellectually dishonest as to selectively cite only the research findings that are consistent with their own ideological position, I guess we can now expect them to echo other assertions by the APAs that are based on scientific research about sexual orientation and sexual minorities.

Here are some good candidates for immediate TVC endorsement.

  • “[T]here is no scientific evidence that parenting effectiveness is related to parental sexual orientation: lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.”
  • “[R]esearch has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish.”
  • And in its Resolution on Sexual Orientation & Marriage that same year, the APA found that “psychological research on relationships and couples provides no evidence to justify discrimination against same-sex couples.”
  • For its part, the American Psychiatric Association has concluded that “altering sexual orientation is not an appropriate goal of psychiatric treatment.” Moreover, “the American Psychiatric Association opposes any psychiatric treatment, such as ‘reparative’ or ‘conversion’ therapy, which is based upon the assumption that homosexuality per se is a mental disorder, or based upon a prior assumption that the patient should change his/her homosexual orientation.”

While we await the TVC’s embrace of these and other APA declarations, a clarification is in order concerning their criticism of the California Court decision.

It’s true that the amicus brief filed by two APAs, the California Psychological Association, and the National Association of Social Workers and its California chapter correctly noted that scientific research has not determined the origins of sexual orientation. This was stated in Footnote 60 of the brief:

Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation — heterosexuality, homosexuality, or bisexuality — is determined by any particular factor or factors. The evaluation of amici is that, although some of this research may be promising in facilitating greater understanding of the development of sexual orientation, it does not permit a conclusion based in sound science at the present time as to the cause or causes of sexual orientation, whether homosexual, bisexual, or heterosexual. [bibliographic references omitted]

And here’s the text of the paragraph in the body of the brief where that footnote appeared:

As noted [above], homosexuality is neither an illness nor a disability, and the mental health professions do not regard a homosexual orientation as harmful, undesirable, or requiring intervention or prevention. Currently, there is no scientific consensus about the specific factors that cause an individual to become heterosexual, homosexual, or bisexual — including possible biological, psychological, or social effects of the parents’ sexual orientation.[60] However, the available evidence indicates that the vast majority of lesbian and gay adults were raised by heterosexual parents and the vast majority of children raised by lesbian and gay parents eventually grow up to be heterosexual.

Although the TVC correctly characterized the two APAs’ statement in the brief, the question of origins became irrelevant to sexual orientation’s status as a suspect classification under California law as of last Thursday’s ruling. I’m not a legal expert, but I think the California Supreme Court decision explains this pretty clearly in several passages. Here’s what the majority opinion said on pp. 96-98 (with legal case citations and quotations omitted and some punctuation modified).

First, the justices stated their opinion about the status of sexual orientation:

[W]e conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.

Next, they summarized the lower court’s rationale for not using strict scrutiny:

In addressing this issue, the majority in the Court of Appeal stated: “For a statutory classification to be considered ‘suspect’ for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon an immutable trait; (2) bear no relation to [a person's] ability to perform or contribute to society; and (3) be associated with a stigma of inferiority and second class citizenship, manifested by the group’s history of legal and social disabilities. While the latter two requirements would seem to be readily satisfied in the case of gays and lesbians, the first is more controversial.” Concluding that “whether sexual orientation is immutable presents a factual question” as to which an adequate record had not been presented in the trial court, the Court of Appeal ultimately held that “[l]acking guidance from our Supreme Court or decisions from our sister Courts of Appeal,” the court would review the marriage statutes under the rational basis, rather than the strict scrutiny, standard.

Then the justices provided the very guidance that the Court of Appeal said it lacked. They explained why strict scrutiny is to be used in cases involving sexual orientation discrimination:

Past California cases fully support the Court of Appeal’s conclusion that sexual orientation is a characteristic (1) that bears no relation to a person’s ability to perform or contribute to society, and (2) that is associated with a stigma of inferiority and second-class citizenship, manifested by the group’s history of legal and social disabilities.

We disagree, however, with the Court of Appeal’s conclusion that it is appropriate to reject sexual orientation as a suspect classification, in applying the California Constitution’s equal protection clause, on the ground that there is a question as to whether this characteristic is or is not “immutable.” …[I]mmutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes.

And the justices noted a parallel that must have been particularly interesting to the TVC:

California cases establish that a person’s religion is a suspect classification for equal protection purposes… and one’s religion, of course, is not immutable but is a matter over which an individual has control. Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.

Thus, although the TVC is correct (in my opinion) to defer to scientific authority concerning the current state of knowledge about sexual orientation’s origins, they are wrong in arguing that sexual orientation must be “completely genetic” in order to be a suspect classification under California law, and that it doesn’t “fulfill the other requirements for minority-status classification.” The California Supreme Court — whose ruling on such issues is the last word — has said otherwise.

Presumably, the TVC will soon correct this factual inaccuracy about California law on its website and in its public statements.

I’ll be watching for that, just as I’ll be eagerly waiting for the TVC to revise its past statements about sexual minorities so they are consistent with mainstream scientific opinion.

But maybe I won’t hold my breath.

Copyright © 2008 by Gregory M. Herek. All rights reserved.

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