DOMA, ENDA, and Sexual Orientation as an Immutable Characteristic

Last week the Obama administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage for federal law purposes as a legal union between a man and a woman.  This development was welcomed by gay rights advocates.  

However, we are still a long way away from establishing comprehensive federal anti-discrimination mandates to protect homosexuals.  The Employment Non-Discrimination Act (ENDA), which would ban workplace discrimination based on sexual orientation and gender identity has been introduced in almost every Congress since 1994 but has failed to pass. 

ENDA would be consistent with other well-established civil rights protections.  The civil rights statutes can be understood to protect discreet and insular minorities with a history of discrimination.  This civil rights model would appear to encompass the gay community. In the alternative, the law can be understood to prohibit discriminatory conduct based on effectively immutable characteristics.  Many now believe that sexual orientation is biological in nature, and I would argue that it is at least as immutable as religion, which is a protected characteristic.

I have written extensively about the concept of immutability in employment discrimination law in an article  that is forthcoming in the William and Mary Law Review.  What do you think, will American society soon be prepared to support legislation such as ENDA?

Comments

[Kevin O'Rourke]

Could you please reference the case that held that religion is an "immutable characteristic" for equal protection purposes?

[Matt Lister]

In refugee and asylum law "immutable" characteristics are ones that the person in question "cannot or should not have to change". Sexual orientation has been held, in many cases, to be an immutable characteristic under this standard, and that seems right. The nice thing about this standard is that it doesn't depend on controversial arguments about the causes of sexual orientation, just noting that it is often "fundamental to the identity" of the person in question.

Personally, I'll be interested to see how this plays out in the immigration context. (I argued several years ago that family-based immigration benefits should be available to same-sex couples in a paper available here, for anyone interested:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=979225 )

The normal rule for the validity of a marriage for immigration purposes is that such a marriage is valid 1) if it's valid in the location of celebration, and 2) it's not contrary to public policy. DOMA both explicitly and implicitly fit part 2, but if it's over-ruled or dropped, then it's not clear why a same-sex marriage in a location recognizing such marriages should not be valid for immigration purposes.

[Sharona Hoffman]

Here is a brief excerpt from my forthcoming paper to which I referred
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1680512):

The federal circuit courts have also developed a second understanding of the meaning of “immutable characteristic.” Under this formulation, a trait is immutable if it is “so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” In other words, a trait is immutable if “changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.” Thus, according to this approach, an attribute need not be entirely fixed in order to be deemed immutable.

The relevant citations are:

156. Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000); see also Zavaleta-Lopez v. Att’y Gen. of the United States, 360 F. Appx. 331, 333 (3d Cir. 2010) (“[I]mmutable characteristics [are those] such as race, gender, or a prior position, status, or condition, or characteristics that are capable of being changed but are of such fundamental importance that persons should not be required to change them, such as religious beliefs.”); Njenga v. U.S. Att’y Gen., 216 F. Appx. 963, 996-67 (11th Cir. 2007) (finding that immutable characteristics are fundamental to individual identities or consciences); In re Acosta, 19 I. & N. Dec. 211, 233-34 (BIA Mar. 1, 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA June 12, 1987).

157. Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring) (holding that the U.S. Army could not bar a soldier’s reenlistment because of his homosexuality).