Gerard Bradley, noted professor of law at Notre Dame, specializes in constitutional law and law and religion. He has served as director of Notre Dame’s Natural Law Institute and is the chair of the Fellowship of Catholic Scholars.
On January 24 Gerard Bradley filed an amicus curae brief with the U. S. Supreme Court in the Prop 8 case and the federal Defense of Marriage Act. The brief is filed on behalf of Dr. Paul McHugh, professor and psychiatry department chairman at Johns Hopkins, who concludes that sexual orientation is neither a “clearly definable (discrete) category or a fixed and immutable characteristic.”
Here is a summary of the argument from the beginning of the brief:
“Powerful voices, including the United States Department of Justice, seek to persuade this Court to recognize sexual orientation as a suspect class. But compelling reasons counsel against taking that momentous step. Even ignoring the substantial and growing political power of the LGBT-rights movement, which alone should be sufficient to reject the demand for heightened scrutiny, sexual orientation is neither a “discrete” nor “immutable” characteristic in the legal sense of those terms. Under this Court’s longstanding jurisprudence, therefore, sexual orientation should not be granted the “extraordinary protection from the majoritarian political process” entailed by suspect-class status.
“Numerous decisions express this Court’s understanding that heightened scrutiny is improper for classifications that are insufficiently discrete. Discreteness requires, at least, that a group or trait be clearly defined. Sexual orientation fails that test. A review of scientific studies demonstrates that there is no scholarly consensus on how to define sexual orientation, and that the various definitions proposed by experts produce substantially different classes. In contrast with race and sex, which are well-defined and understood, and despite popular beliefs to the contrary, sexual orientation remains a contested and indeterminate classification.
“This Court’s decisions also teach that immutability is a necessary characteristic for heightened-scrutiny protection, and that the class-defining trait must be determined solely by accident of birth. Unlike the traits of race and sex, and again despite popular beliefs to the contrary, no replicated scientific study supports the view that sexual orientation is determined at birth. Studies conclude, instead, that sexual orientation is influenced by complex and un- predictable factors. Even if, contrary to its past decisions, the Court were to expand the concept of immutability from a trait determined by accident of birth to a personal trait that cannot change – and there are surely many of those – scientific research offers substantial evidence that sexual orientation is far more fluid than commonly assumed.
“This brief takes no position on the proper definition or cause of sexual orientation. Those are matters for ongoing scholarly inquiry and debate. Amicus’s more modest point is that scholars do not know enough about what sexual orientation is, what causes it, and why and how it sometimes changes for the Court to recognize it as the defining feature of a new suspect class.”
To read Bradley’s brief, click here.