The Obergefell Decision May Have Its Origin in Science

Recently, the Obergefell decision made same-sex marriage legal throughout the country, and the prohibition of same-sex marriage, by any state laws, was nullified. Justice Kennedy delivered the opinion of the Supreme Court and essentially found that under the due process clause of the 14th Amendment, no state shall deprive any person of life or liberty without due process of the law. One of those "liberties" extends to certain personal choices central to personal dignity and autonomy. He further stated that the right of same-sex couples to marry is part of the liberty promised in the 14th Amendment, which is also derived from the Amendment’s guarantee for equal protection of the laws. Therefore, the due process clause and equal protection clause are used in profound ways using independent principles. Without hesitation, Justice Kennedy stated that the right to marry is a fundamental right inherent in the liberty of a person, and that same-sex couples may not be deprived that right and that liberty. Therefore, the Court held that same-sex couples may exercise that fundamental right to marry. Interestingly, as part of the opinion, he stated that the same-sex couples’ "immutable nature" dictates that same-sex marriage is their only real path to this commitment and liberty.

The case that never made it to the Supreme Court, because the Supreme Court refused to hear it, was Baskin v. Bogan which held, from the 7th Circuit Court of Appeals written by Judge Posner, that laws from Indiana and Wisconsin refusing to authorize same-sex marriage or to recognize such marriages made in other states are invalid as a violation of the equal protection clause of the 14th Amendment. The 7th Circuit Court affirmed the District Court’s judgment invalidating such statutes previously prohibiting same-sex marriage. With respect to the connection in these cases and recent cases, such as the termination of a gay music director in a Catholic Church, one needs to question whether or not the termination of employment of a gay music director is illegal discrimination or legal discrimination?

Should the courts grant gay individuals "protected class" status and create a higher level of scrutiny for such terminations? We believe the answer falls to whether or not the gay person’s sexuality is inherent in who they are, or if it is a matter of choice. Posner, in the Baskin v. Bogan decision, fully analyzed the medical background of the issue. He indicates that there is little doubt that sexual orientation, the ground of discrimination, is immutable (and probably innate in the sense of inborn) characteristic rather than choice. He cites the American Psychological Association and states that "most people experience little or no sense of choice about their sexual orientation." Moreover, the study identifies that the homosexual orientation is not a choice, which is further suggested by the absence of evidence (despite extensive efforts to find it), psychotherapy is ineffective in altering sexual orientation in general, and homosexual orientation in particular. The evidence seems profound. The leading scientific theories of the causes of homosexuality are genetic in neuroendocrine theories, the latter being theories that sexual orientation is shaped by a fetus’s exposure to certain hormones.

Most importantly, Baskin v. Bogan is a case where a highly regarded jurist, Judge Posner, came to the conclusion that because of the immutable nature of an individual’s sexuality, such discrimination cannot be thrust upon an individual seeking to exercise a fundamental right, such as marriage. We analogize to those that believe a person’s sexuality is a matter of nature versus those who believe it is a matter of nurture – or choice. The Catholic Church seems to be taking the position that notwithstanding significant scientific evidence to the contrary, that the homosexual bias is a matter of choice, rendering the LGBT community "unrepentant sinners" and thus unfit to be employed by such religious organization when, in reality, the scientific evidence is completely contrary. So, is the church taking the position that "God created you and made you a sinner…"?

If you have any questions or would like to discuss the issue of same-sex marriage, you can contact Kerry Lavelle at Lavelle Law, Ltd. at (847) 705-7555 or