Over the past few decades, questions about the chosen or compelled nature of sexual orientation have become both a political and a constitutional litmus test for progressive approaches to LGBT rights. While choice occupies a hallowed place in American culture, its invocation in the context of sexual orientation generally has a more ambivalent, and often sinister, ring. High-profile gaffes by prominent politicians make clear that, in this context at least, pro-gay does not mean pro-choice. This Article illuminates the rhetorical confusion surrounding homosexuality and choice, linking it to a misguided jurisprudence of immutability. It reflects briefly on the emergence and persistence of immutability as a factor in equal protection challenges to discriminatory legislation, suggesting that the focus on immutability represents an unnecessary departure from the core purpose of equal protection jurisprudence: to ensure that the government not apportion rights according to such illegitimate considerations as paranoia or a desire to subordinate an unpopular group. The Connecticut Supreme Court’s analysis of immutability in Kerrigan v. Department of Public Health, however, recasts the inquiry to focus on the social and legal ostracism that has defined gay identity for more than a century. This propitious approach is primarily concerned with status as subordination (the new immutability) rather than status as essence (the old immutability).
Schmeiser, Susan R., "Changing the Immutable Commentary" (2009). Connecticut Law Review. 34.