Opinion: How Cynthia Nixon’s “gay by choice” might play in court

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When actress Cynthia Nixon described herself as ‘gay by choice’ in a New York Times magazine interview, she not only set off a storm of reexaminations of the evidence on whether homosexuality is a matter of nature or nurture, but threw a verbal monkey wrench into the legal question of gay rights.

As Times science writer Karen Kaplan summarized, ‘The scientific consensus seems to be that there is indeed a biological basis for homosexuality -- though it’s not necessarily 100% determined by either genes or by environmental factors.’ Science is painting a complex portrait in which biology -- not always genetics but also prenatal exposure to hormones -- is certainly an important factor, though perhaps not the only one.

Nixon, though, is framing gay rights in a new way. It’s strangely reminiscent of the ‘gay cures’ some religious groups have promoted. They say it doesn’t matter whether homosexuality is inborn. It’s still wrong, in their eyes, and so people have to ‘learn’ to change their behavior, even if they can never change their sexual preference. A desire to philander might be ‘inborn’ or ‘natural,’ they argue, but it still has to be overcome. Nixon, of course, is on the opposite side of that same logical coin. Why, she asks, should homosexuality be any less valid if and when it is chosen?

Why, indeed? So much of the debate about discrimination against homosexuals gets bogged down in extraordinarily judgmental issues. They shouldn’t marry, opponents have told the editorial board, because studies show that children are better off with a mother and father. Actually, some excellent studies don’t bear that out at all -- but that’s not the point. Of the many heterosexuals who make bad parents, why isn’t society judging their fitness to wed? When adults engage in sexual behavior of whatever type, why does society set up discriminatory laws against them only when that ‘type’ involves homosexuality?

But in the courts, as the lawsuit against Proposition 8 wends its way through the appellate process, this issue could have very high stakes. Under the 14th Amendment, the courts have historically said that discriminatory laws must pass a very high legal bar to remain law, if they affect a ‘discrete’ and ‘insular’ community that has traditionally been singled out for discrimination. Traditionally, this has included ethnic and racial minorities, and women. In his ruling on the Proposition 8 case, then-U.S. District Chief Judge Vaughn R. Walker wrote that this surely applied to the gay and lesbian communities as well.

Historically, though, one of the criteria for such groups is that they must be a minority because of an unchangeable characteristic. If, as Nixon says, sexual preference can be a choice, then couldn’t gays and lesbians simply ‘choose’ otherwise?

Groups don’t have to meet all of the criteria laid out, and other factors can be considered. But gay rights activists worry that if sexual preference is seen as mutable, they might lose points in their ongoing legal quest for legal rights.

Nixon, of course, speaks only for herself, and it’s doubtful her comments would matter much, if at all, in the case. But in any case, I agree with her; it shouldn’t matter. The complicated, perhaps never-knowable question of precisely how people come to be different from each other is a small one compared with the question of why there seems to be so much determination to deprive some of those people of basic rights that in no way harm other people.

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--Karin Klein