How Robert Spitzer’s Apology Can Impact The Proposition 8 Case

Robert Spitzer

In 2001, Robert Spitzer — a prominent psychiatrist who led the charge to declassify homosexuality as a mental condition — released a controversial study showing that some gay people could change their sexual orientations and become straight. Spitzer’s findings bolstered the ex-gay movement and helped advocates find acceptance in the heart of conservative anti-gay politics. But earlier this month, the 80-year-old scientist dealt a devastating blow to his loudest proponents. In an interview with The American Prospect, Spitzer retracted his own ex-gay study, noting that “The findings can be considered evidence for what those who have undergone ex-gay therapy say about it, but nothing more.”

Last night, Rachel Maddow examined the consequences of Spitzer’s denunciation of his own reparative therapy study on the Proposition 8 case, which relied on its conclusions to argue that gay people are not entitled to marry someone of the same gender because sexual orientation is a mutable characteristic. NYU constitutional professor Kenji Yoshino explained the significance:

YOSHINO: I think it`s a big deal. So, first of all, the reason immutability is important is because under the Equal Protection Clause of the 14th Amendment, there’s a standard called heightened scrutiny. And there are certain classifications like race, national origin, sex, nonmarital parentage, lineage (ph) that get that scrutiny. The $64,000 question of this case is whether or not sexual orientation is going to be added to that list. And one of the criteria that`s been looked at to determine whether or not a group gets heightened scrutiny is immutability, as you mentioned. So, the fact that Spitzer retracting this and the fact that the testimony in the Prop 8 trial was overwhelming for the fact that sexual orientation is very hard to change could figure into that analysis.

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Yoshino also suggested that Spitzer’s apology could impact Defense of Marriage (DOMA) litigation, which relies on a similar gays-can-change claim.