Marriage equality at last (Image: Alex Potemkin / Alamy)

Marriage for all, no gay gene required. For same-sex couples in the US, 26 June was a landmark date: the Supreme Court legalised marriage between two men or two women in all 50 states.

“[Same-sex couples] ask for equal dignity in the eyes of the law,” wrote Associate Justice Anthony Kennedy in the decision. “The Constitution grants them that right.”

But one thing the decision didn’t do was declare sexual orientation a “suspect class” under the law, which would have given it the same protection as race. One of the criteria for this classification is that the trait must be immutable – an argument that the gay rights movement has internalised under the banner of “we’re born this way”.


But although there is some evidence that sexual orientation has a genetic component, most scientists agree that it’s not that simple. “There’s significant consensus in the scientific community that there’s enough different interacting causes for sexual orientation that two different individuals can be gay for different combinations of reasons,” says sexuality researcher Lisa Diamond at the University of Utah.

“I think all the evidence suggests that we’re born with an underlying capacity and then that capacity interacts with a whole bunch of other influences,” she says – whether they be prenatal, genetic or environmental.

She would rather activists win these battles based on a truer understanding of the science. “It shows we don’t need to be considered a protected class in order to make strong and successful arguments about civil rights,” she says.

Open to discrimination

But not being a suspect class could leave gay, lesbian, bisexual and transgender people open to legal discrimination in at least half of US states.

“The decision is very powerful, but doesn’t explicitly discuss what standard will be applied in cases of discrimination due to sexual orientation,” says LGBT law scholar Susan Hazeldean at Cornell University in Ithaca, New York.

“Employment discrimination is still something that’s decided state to state,” says LGBT lawyer Angela D. Giampolo in Philadelphia, Pennsylvania. “In Pennsylvania, we’ve had gay marriage for a year, now we know it won’t be overturned. But I can still be fired for being gay. That will be the next set of cases.”

Hazeldean thinks the marriage ruling is still an important first step. “I think this court decision will bolster efforts to protect LGBT people in other areas that are important, even though it doesn’t directly concern protection from employment discrimination or access to healthcare,” she says.

“I think it will have ramifications in those areas and be important in advancing those causes as well.”