As House Speaker John Boehner (R-OH) wastes taxpayer money defending the Defense of Marriage Act, his lawyer Paul Clement continues to make offensive arguments against gays and lesbians. Among them are claims that the LGBT community has not historically faced discrimination and that same-sex couples make inferior parents. One argument that resurfaces prominently in the various briefs is that homosexuality is a choice. Here is the language from Clement’s latest brief in the case of Golinski v. United States Office of Personnel Management:
But the Ninth Circuit has said conflicting things on immutability. In assessing whether homosexuality constitutes a suspect class the Ninth Circuit has held specifically that it is not an immutable characteristic: “Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes.” [...] Whether a classification is “immutable” for purposes of equal protection jurisprudence is of course a legal conclusion—not a scientific one—and Plaintiff’s selective reading of scientific evidence warrants no deference from this Court.
Clement’s analysis fails on various grounds. First of all, he is simply wrong: being gay is not a choice. Clement relies on the precedent set in High Tech Gays v. Defense Industrial Security Clearance Office, which was decided by the Ninth Circuit over 20 research-filled years ago. Any reading of present-day scientific evidence — selective or otherwise — offers conclusive consensus that sexual orientation is enduring, controlled by biological factors, and cannot be altered.
Furthermore, the decision in High Tech Gays relied on the 1986 decision in Bowers v. Hardwick, a Supreme Court decision that was overruled by Lawrence v. Texas in 2003. In other words, High Tech Gays was based on a legal precedent that no longer exists and thus no longer has its own foundation. House Republicans are essentially trying to counter the factual reality of gay and lesbian identities using defunct legal precedent.
The oppressive irony of Clement’s arguments in these DOMA cases cannot be overstated. At the same time that the House Republicans are using taxpayer money to perpetuate anti-gay mythology in the courts, they are arguing that same-sex couples are not even entitled to justice because the LGBT community is “politically powerful” enough to “attract the attention of lawmakers.” This same argument would have to apply to women and people of color, who are already subject to the heightened scrutiny Clement opposes for gays and lesbians. That Boehner and company would hold the gay community down by its neck and simultaneously suggest that they’re the ones who can end the discrimination is truly despicable — the epitome of bullying.