" United States v. Windsor - Amicus Brief of Survivors of Sexual Orientation Change Therapy for Windsor "

Edith Windsor

-8 personal stories 

SUMMARY OF ARGUMENT

Sexual orientation should be recognized as a

suspect classification under the equal protection

component of the Due Process Clause of the Fifth

Amendment because homosexuals as a class have

long been subjected to discrimination based on an

immutable characteristic that should not be the

basis for unequal treatment. 

While it would not be necessary for sexual 

orientation to be an immutable trait for heightened scrutiny to apply, see Bowen v. Gilliard, 483 U.S. 587, 602 (1987)

(looking to whether a class “exhibit[s] obvious,

immutable, or distinguishing characteristics that

define them as a discrete group” (emphasis

added)), where a community is singled out for dis-

crimination based on an inherent characteristic

that is immutable, as is the case here, the applica-

tion of heightened scrutiny is particularly appro-

priate. 

Amici’s personal stories as survivors of SOCE,

which are representative of the experiences of

countless other lesbian, gay, bisexual and trans-

gender (“LGBT”) people, illustrate the immutabil-

ity of sexual orientation and the history of

discrimination and animosity faced by gay men

and lesbians based solely on a trait that bears no

relationship to their ability to contribute to

society.

For these reasons, Amici urge the Court to sub-

ject the Defense of Marriage Act (“DOMA”),

1 U.S.C. § 7, to a heightened level of scrutiny and

affirm the decision of the United States Court of

Appeals for the Second Circuit holding that the

law violates the equal protection component of the

Due Process Clause of the Fifth Amendment.

http://www.aclu.org/files/assets/amicus_brief_of_survivors_of_sexual_orientation_change_therapy_on_merits_for_windsor.pdf