Saturday, April 28, 2012

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

As a long time opponent of the disingenuous "ex-gay" myth (after having tried to "pray away the gay" for 37 years with no success other than making myself and other miserable), I am thrilled that Robert Spitzer has recanted his 2001 finding that perhaps a small number (1 to 2%) of gays who participated in reparative therapy might be able to "change."  I am thrilled with the recantation not only because it undermines the last shred of legitimacy that "ex-gay" proponents had to hang their snake oil on.  More importantly, if there is absolutely no legitimate expert evidence that sexual orientation is changeable, the legal implications for anti-discrimination laws are huge.  Likewise, if gays cannot be straight, other than religious based bigotry, there really is no reason to ban same sex marriage.  Think Progress looks at this possible legal impact in the context of Proposition 8.  Here are highlights:

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.”

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

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