That's a disputed claim, and the weight of the evidence does not support it.
Paul McHugh, MD, University Distinguished Service Professor of Psychiatry at the Johns Hopkins University School of Medicine, and Gerard V. Bradley, Professor of Law at the University of Notre Dame, explain: [S]ocial science research continues to show that sexual orientation, unlike race, color, and ethnicity, is neither a clearly defined concept nor an immutable characteristic of human beings. Basing federal employment law on a vaguely defined concept such as sexual orientation, especially when our courts have a wise precedent of limiting suspect classes to groups that have a clearly-defined shared characteristic, would undoubtedly cause problems for many well-meaning employers.[7] <http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn7> McHugh and Bradley caution against elevating sexual orientation and gender identity to the status of protected characteristics because of the lack of clear definition: "Sexual orientation" should not be recognized as a newly protected characteristic of individuals under federal law. And neither should "gender identity" or any cognate concept. In contrast with other characteristics, it is neither discrete nor immutable. There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people.[8] <http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn8> Indeed, there is no clear scientific evidence that sexual orientation and gender identity are biologically determined. McHugh and Bradley summarize the relevant scholarly scientific research on sexual orientation and gender identity: Nor is there any convincing evidence that sexual orientation is biologically determined; rather, research tends to show that for some persons and perhaps for a great many, "sexual orientation" is plastic and fluid; that is, it changes over time. What we do know with certainty about sexual orientation is that it is affective and behavioral--a matter of desire and/or behavior. And "gender identity" is even more fluid and erratic, so much so that in limited cases an individual could claim to "identify" with a different gender on successive days at work. Employers should not be obliged by dint of civil and possibly criminal penalties to adjust their workplaces to suit felt needs such as these.[9] <http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn9> On Fri, Mar 27, 2015 at 2:52 PM, Finkelman, Paul < paul.finkel...@albanylaw.edu> wrote: > Both are immutable characteristics. In that way they are very much > alike. Indeed, while one can choose to convert to a new religion, people do > not "choose" to be gay, just as they don't choose to be white or black or > some other race. > > > ************************************************* > Paul Finkelman > *Senior Fellow* > *Penn Program on Democracy, Citizenship, and Constitutionalism* > *University of Pennsylvania* > *and* > *Scholar-in-Residence * > *National Constitution Center* > *Philadelphia, Pennsylvania* > > 518-439-7296 (p) > 518-605-0296 (c) > > paul.finkel...@albanylaw.edu > www.paulfinkelman.com > ************************************************* > > ------------------------------ > *From:* religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] on behalf of Ryan T. Anderson [ > ryantimothyander...@gmail.com] > *Sent:* Friday, March 27, 2015 2:42 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Amazing what Hobby Lobby has wrought > > Sexual orientation is not the same as race. > > On Fri, Mar 27, 2015 at 2:34 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> or, imagine if Justice Alito had not included the references to "race" >> and "racial" in this sentence: >> >> "The Government has a compelling interest in providing an equal >> opportunity to participate in the workforce without regard to race, and >> prohibitions on racial discrimination are precisely tailored to achieve >> that critical goal." >> >> On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman <lederman.ma...@gmail.com >> > wrote: >> >>> Before the ruling -- but not before the lower court decisions and the >>> slew of briefs --including by many Catholic groups that were insistent upon >>> reading RFRA narrowly back in 1993 -- urging the Court to do at least as >>> much as it did (indeed, more so). >>> >>> The converse point works, too: If the Court had issued a *Lee*-like >>> 9-0 decision, there wouldn't now be much of an opposition to state RFRAs >>> (but not nearly the same impetus to enact them, either). >>> >>> On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson < >>> ryantimothyander...@gmail.com> wrote: >>> >>>> The reaction to Indiana strikes me as similar to Arizona. Arizona took >>>> place well before Hobby Lobby ruling. So the causal relationship you >>>> suggest here seems off. Something else explains this. >>>> >>>> On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman < >>>> lederman.ma...@gmail.com> wrote: >>>> >>>>> >>>>> http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill >>>>> >>>>> If the new Indiana RFRA had been enacted last year, I think it's >>>>> fair to say, the NCAA would have pulled the Final Four out of >>>>> Indianapolis; >>>>> and I think it's safe to predict that the NCAA tourney won't be coming >>>>> back >>>>> to Indiana anytime soon. Think about that -- a basketball boycott *in >>>>> Indiana! *How far we've come . . . >>>>> >>>>> RFRA has gone from being benign, milquetoast legislation that >>>>> garnered support across the political spectrum 20 years ago -- like >>>>> Chevrolet and apple pie -- to becoming the political equivalent of a state >>>>> adopting the confederate flag, or refusing to recognize MLK Day. I doubt >>>>> this would have happened if the *Hobby Lobby* Court, like the Court >>>>> in *Lee*, *Jimmy Swaggart*, *Tony & Susan Alamo*, etc., would have >>>>> rejected the accommodation claim 9-0. >>>>> >>>>> Of course, the market will ultimately undo the damage: In order to >>>>> preserve states' economic competitiveness, their RFRAs will either be >>>>> repealed or construed to recreate the pre-Smith FEC regime. >>>>> >>>>> The more interesting question is what Justice Alito's initiative >>>>> augurs for the future of religious accommodations more broadly. >>>>> >>>>> _______________________________________________ >>>>> To post, send message to Religionlaw@lists.ucla.edu >>>>> To subscribe, unsubscribe, change options, or get password, see >>>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>>>> >>>>> Please note that messages sent to this large list cannot be viewed as >>>>> private. Anyone can subscribe to the list and read messages that are >>>>> posted; people can read the Web archives; and list members can (rightly or >>>>> wrongly) forward the messages to others. >>>>> >>>> >>>> >>>> _______________________________________________ >>>> To post, send message to Religionlaw@lists.ucla.edu >>>> To subscribe, unsubscribe, change options, or get password, see >>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>>> >>>> Please note that messages sent to this large list cannot be viewed as >>>> private. Anyone can subscribe to the list and read messages that are >>>> posted; people can read the Web archives; and list members can (rightly or >>>> wrongly) forward the messages to others. >>>> >>> >>> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
