The Court has ruled that considerations of discrimination against people based on sexual orientation should be held to heightened scrutiny for all four factors that determine such scrutiny:
HISTORY OF DISCRIMINATION: The first factor courts consider is whether the class has suffered a history of discrimination. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.
ABILITY TO CONTRIBUTE TO SOCIETY: Similarly, there is no dispute in the record or the law that sexual orientation has norelevance to a person’s ability to contribute to society.
IMMUTABILITY: Regardless of the evidence that a tiny percentage of gay men or lesbians may experience some flexibility along the continuum of their sexuality or the scientific consensus that sexual orientation is unchangeable, the Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity.
POLITICAL POWERLESSNESS: The Court finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power… Although this factor is not an absolute prerequisite for heightened scrutiny, the Court finds the evidence and the law support the conclusion that gay men and lesbians remain a politically vulnerable minority.
hell yes.
