The first is the “born that way” argument:
- A person’s sexual orientation is either inborn or fixed at an early age.
- It is wrong to criminalize behavior that a person does not choose to engage in.
- Therefore, gay/lesbian sex as well as marriage should neither be prohibited nor criminalized.
(a) Although the first premise is widely believed to be true, it is in fact an empirical claim whose supposed truth is still vigorously debated among researchers.
(b) Even if premise 1 is true, the conclusion does not follow, for even if a person has a homosexual orientation, it does not follow that his or her sexual conduct must not be freely chosen. After all, many persons who are clearly heterosexual in orientation freely choose not to marry and/or engage in any sexual activity with persons of the opposite sex. Sexual orientation alone does not determine a person’s behavior.
The second argument maintains that laws prohibiting gay/lesbian sex or marriage are sexist and therefore in violation of the equal protection clause of the 14th Amendment.
This is a strange argument. Even if one grants that laws prohibiting gay/lesbian marriage are sexist because they deliberately deny lesbians the right to marry, states that have such laws (as well as the armed forces) have plausibly replied that the prohibition isn’t sexist because they apply to gay males as well as lesbian females. Such laws are really gender-neutral. Moreover, it is unwise to categorize such laws as sexist when it seems much closer to the truth to say they are motivated by homophobia, not sexism.
So what are the courts to do when called upon to decide the constitutionality of gay/lesbian marriage?
One possibility is they could, in effect, shift the burden of proof from the supporters of gay/lesbian marriage to the opponents. How so? They could require that the proponents of whatever anti-gay marriage law is before the court show that it satisfies the rational basis test, i.e., that the law satisfies some legitimate state purpose. This is a minimal requirement that any contested law must meet to qualify as valid law. But in this case, that wouldn’t be an easy thing to show. They can’t just say a majority of the public wants it that way, or that we have a long history of forbidding gay marriage, or that gays cannot be good parents of young children (empirically false), or that gay marriages threaten heterosexual marriages (patently false). I don’t know what they could say that would show a gay marriage ban serves a legitimate state purpose.