The United States Constitution: Immutable Status and Sex Discrimination Arguments

Robert Wintemute

in Sexual Orientation and Human Rights

Published in print July 1993 | ISBN: 9780198264880
Published online March 2012 | e-ISBN: 9780191682841 | DOI:

Series: Sexual Orientation and Human Rights

The United States Constitution: Immutable Status and Sex Discrimination Arguments

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In the aftermath of the Supreme Court case Bowers v. Hardwick, gay, lesbian, and bisexual plaintiffs have looked for alternatives to a right of privacy argument under the United States constitution. In addition to invoking state rights of privacy, federal First Amendment rights, and an arguable federal ‘right to participate equally in the political process’, they have turned to the suspect classifications branch of federal equal protection doctrine. (Hardwick limits use of the fundamental rights branch of that doctrine to fundamental rights other than the right of privacy, such as freedom of speech.) In arguing that sexual orientation is a ‘suspect’ or ‘quasi-suspect’ classification, they proposed an analogy between sexual orientation discrimination and race or sex discrimination, rather than between same-sex sexual activity and contraception or abortion. This chapter examines the use of immutable status and sex discrimination arguments and assesses the level of protection provided by the US constitution against sexual orientation discrimination.

Keywords: United States; constitution; immutable status; sex discrimination; sexual orientation; suspect classifications; right of privacy; equal protection doctrine; sexual orientation discrimination; Supreme Court

Chapter.  16706 words. 

Subjects: Human Rights and Immigration

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