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As I’ve just explained, I’m not a huge fan of Justice Kennedy’s opinion in Obergefell, even though I like the result. However, there is one very good, very important thing in the opinion that I haven’t seen mentioned much, and which is critical to either an equal protection or a due process analysis. It’s this (emphasis mine):
Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment….
Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.
The fact that a majority of the Supreme Court has now recognized homosexuality as an “immutable” characteristic strikes me as a very big deal (the Court has hinted at this before, especially in Lawrence v. Texas and Christian Legal Society v. Martinez, but before last week it had never come right out and said it). In the eyes of the law, at least, homosexuality is no longer a “choice.” It’s just the way people are – like race and other immutable characteristics. Legally, that could be a very big deal down the road. It also seems to me to deal a blow to the folks out there who continue to espouse the view that people choose to be gay. They may still think that, but the Supreme Court of the United States now officially disagrees.
I’m not the first to notice this – Ian Millhiser at ThinkProgress, among others, has noted it too. But I’m surprised it hasn’t gotten more attention.