With the recent decision of the Second Circuit in Windsor v. United States, two circuit courts have now held DOMA unconstitutional. But the Second Circuit broke new ground, becoming the first federal court of appeals to hold that sexual orientation is a suspect classification. If sexual orientation is treated as a suspect classification, then the government would need strong justification to treat people differently based on sexual orientation. If this ruling stands, it represents a major victory for LGBT advocates, who have long argued that sexual orientation should be a suspect classification.
But this decision is important not only for this result, but also for how it arrived at this conclusion. In particular, the Windsor court suggested a new approach to the immutability inquiry. In deciding whether a group should be considered a suspect class, federal courts generally consider four criteria: history of discrimination, whether the defining characteristic is related to ability to perform in society, immutability, and political powerlessness. Immutability has proven a particular stumbling block for LGBT advocates. Courts have been reluctant to consider sexual orientation immutable, noting inconclusive scientific evidence on the origins of sexual orientation and the claims of some that it is subject to change.
In the past, LGBT advocates have successfully used two related strategies to overcome the question of immutability. First, they have argued that immutability is not and should not be a required part of the test for suspect classification. These advocates point to suspect classifications like alienage and illegitimacy to argue that immutability was never meant to be a test for all suspect classifications. Similarly, advocates argue that, to the extent immutability matters, it should not be understood to require absolute impossibility of change. Instead, “immutability may describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them, regardless of how easy that change might be physically.”(1) Sexual orientation, according to this logic, is a key part of individual identity and the government should not be able to require people to change, even if such change may be possible.
Windsor suggests a third way of overcoming the immutability question. The opinion describes the test as one of a “distinguishing characteristic,” rejecting the immutability label entirely.(2) Citing some of the same cases that advocates use in arguing that immutability is not a requirement, Windsor explains that immutability stands in as a label for a really much broader inquiry. Instead of meaning just immutability, the court explains, “What seems to matter is whether the characteristic of the class calls down discrimination when it is manifest.”(3) According to this logic, what really matters is whether something is socially understood to define a discrete group of people. Whether or not it is immutable, our society uses sexual orientation to define people into discrete groups. Just as with alienage and illegitimacy, which are not absolutely immutable, the real concern is how society uses a characteristic to define a group of people and then discriminate against that group.
As I noted, this third approach shares a lot with the other two methods I described of overcoming the immutability question. But I think it is substantively important for at least two reasons. First, it offers a compelling way of describing what immutability is supposed to stand for. I agree with arguments that immutability should not be considered a requirement of suspect classification. But this moves beyond that argument by re-describing what immutability is all about in the first place. I think this “distinguishing characteristic” test might reorient the immutability inquiry in a way to make it much more meaningful. This may be more appealing than simply rejecting the immutability inquiry. Second, it might offer additional doctrinal cover to federal courts sympathetic to LGBT plaintiffs who still feel compelled to address past cases discussing immutability.
It will be interesting to see how the Supreme Court handles this, if it takes up one of the DOMA cases. I hope that federal courts at all levels continue with this line of de-emphasizing immutability as an absolute requirement for suspect classification.
(1) Watkins v. U.S. Army, 847 F.2d 1329, 1346–47 (9th Cir. 1988), withdrawn en banc, 875 F.2d 699 (9th Cir. 1989).
(3) Id. at 30.