In HJ (Iran) v Secretary of State for the Home Department ([2010] UKSC 31) the UK Supreme Court held that gay people cannot properly be required or expected under international asylum/refugees to conceal their sexuality/pass as straight to avoid State sponsored but usually religiously inspired persecution in their home countries.    The central point about the UKSC decision is that the court rejects the cogency of any distinction between acting on one’s sexual orientation and being of a particular sexual orientation.   It was argued by the Home Office that it could properly send back avowedly gay men to Iran and Cameroon respectively on the basis that, if they were to be discreet (not – openly –  act on their sexual orientation) they would not invite persecution.

In rejecting this argument the court noted that to be of a particular sexual orientation was not simply a matter of (not) acting on particular urges to have sex.   Rather being gay carried for an individual a whole weight of meaning and outlook and was not simply about sexual behaviour.   It was recognised as being an integral part of the individual’s personality: not necessarily in any senses definitive of it, but central to it.  Thus to suggest that some not act gay was to tell them not to be who and how they were made (whether by God, or genes, or upbringing – or a combination of, or variation on, all three).   Any such demand was an affront to the respect for human dignity that a properly informed human rights culture requires.   Against the moral background provided by the principle for respect for individual human dignity required by a culture informed by human rights, the court was in essence giving legal effect to the moral guidance given by Polonius to his Laertes:   “This above all: to thine own self be true, And it must follow, as the night the day, Thou canst not then be false to any man.”   It might therefore be said that the UKSC court was saying that being of a particular sexual orientation could not – any more than being of a particular race or ethnicity – be said to be a matter of individual lifestyle choice (in the way that, by contrast, choosing to covert to or follow particular religious practices might be).

The implications of this view for US Constitutional interpretation appear to have touched on sensitivities across the Atlantic, such that the UKSC decision has already attracted some comment from the United State.  Professor Michael Scaperlanda of the University of Oklahoma College of Law refers to the following passages from the speech of Lord Hope (at paras 2, 10-11):

“2.    For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution.    More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years’ imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country’s culture, its religion and its laws. Objections to these developments have been greeted locally with derision and disbelief. …

10. … [A] group based on a common characteristic of sexual orientation may be included in a particular social group that is in need of international protection.

11. The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.”

Professor Scaperlanda then posits the following questions, among others:

(1)   “What gives this court the authority to determine whether a particular religious interpretation is ‘misguided’”;  and

(2)   “Is the court really implying that religion is less important to a person’s identity than the ability to act on one’s sexual orientation simply because it can be changed ?”.

The issues of neuralgic sensitivity in current US Constitutional Law and politics which the Supreme Court judgment in HJ (Iran) appears (unwittingly) to have touched appears to be the question as to whether or not the there might be constitutionally protected rights under the US Constitution either for individuals to be able to choose marry another under State law without reference to that other’s gender (the “gay marriage debate”) or to be protected against discrimination by federal law if they have solemnised a same sex marriage under State law.    These issues have been raised, respectively, in Perry v. Governor Schwarzenegger of California, Case No. C-09-2292 VRW currently under advisement before the United States District Court for the Northern District of California, and in Gill and Letourneau v. Office of Personnel Management Case No. C-09-10309-JLT before the United States District Court for the District of Massachusetts.   In the latter case in a judgment of 8 July 2010 Tauro J. held that the US Defense of Marriage Act 1996 (“DOMA”) in denying same sex married couples federally mandated health benefits which would otherwise be available to similarly situated opposite sex married couples could not survive even rational basis review.   In finding that it lacked any plausible rationale, the court inferred that the enactment of DOMA could only have been motivated by animus or irrational prejudice which could not constitute a legitimate government interest).   Accordingly the court held that the federal statute violated the equal protection principles embodied in the Due Process clause of the Fifth Amendment.    It is expected that either or both Perry v. Schwarzenegger and Gill and Letourneau v. Office of Personnel Management will eventually to reach the US Supreme Court.

Central to the resolution of this issue from the perspective of US Constitutional law is whether or not individuals being of a particular sexual orientation is constitutive of their identity (See Romer v. Evans, 517 U.S. 620 (1996) apparently treating gay and lesbian individuals as a class for equal protection purposes), in the same way that race or ethnicity can be so regarded (see Korematsu v. United States, 323 US 214 (1944) and Brown v. Board of Education of Topeka 347 US 483 (1954)).    If sexual orientation is understood simply by reference to an individual’s behaviour or “choice of lifestyle” (see Bowers v. Hardwick, 478 U.S. 186 (1986)) then, the argument runs, it is not constitutive of identity and hence, when group, incapable of forming a “class”.   But if individuals of the same sexual orientation can be said to form a “discrete and insular minority” and so constitutive of a “suspect class” they may therefore be able to claim the special judicial protection of “strict scrutiny” (a kind of “ultraWednesbury” or, “über-proportionality” review) of any State and Federal laws adversely impacting upon that class.   Strict scrutiny places the onus on the Government to prove that a “compelling government interest” is sought to be protected by the law; the law in question is narrowly tailored in the protection of that compelling interest; and there is no less restrictive alternative which might achieve the same legitimate aim see United States v. Carolene Products Co. 304 US 144 (1938).

The question as to whether being of a particular sexual orientation may be said to be constitutive of a class is a central one in the gay marriage litigation because of the resonances and parallels with the decision in Loving v. Virginia 388 US 1, (1967) where the US Supreme Court at last struck down as unconstitutional the “anti-miscegenation”/sexual apartheid laws of Virginia which, even into the mid 1960s, criminalised inter-racial marriage on the basis of what the Court of Appeals of Virginia held to be the State of Virginia’s compelling interests to “preserve the racial integrity of its citizens” and to prevent “the corruption of blood, … the creation of a mongrel breed of citizens and the obliteration of racial pride”.    The arguments in Perry v. Schwarzenegger and in Gill and Letourneau v. Office of Personnel Management is that mutatis mutandis the rationale of the US Supreme Court decision in Loving should be applied to the States’ and Federal government prohibitions on, or discriminations against, same sex marriage as serving no compelling government interest and as therefore unduly restrictive of the fundamental rights and liberties of the individual to choose whom to marry.

Significantly, in its recent decision in Christian Legal Society v. Martinez, No. 08-1371 (U.S. June 28, 2010) the majority of the US Supreme Court appeared to hold that sexual orientation is not merely behavioural, but rather, that gay and lesbian individuals are indeed an identifiable class. In apparent response to the Christian Legal Society’s argument in that case that it was not discriminating in its membership on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong, Justice Ginsburg writing for the majority states (gnomically)  that  “our decisions have declined to distinguish between status and conduct in this context”.

As David Paul Kuhn notes in “The Polarization of the Supreme Court”

“The Supreme Court has gradually come to act more like a political institution. The share of one-vote majority rulings has risen more than four-fold in the past six decades, compared to the half-century prior”.

Clearly, then, in an issue of such political and cultural sensitivity as gay marriage every individual potential vote on the US Supreme Court will count.   In recent years the most crucial individual vote has been that of Justice Anthony Kennedy who has most prominently played the part of the swing vote between the Court’s conservative and liberal blocs. Now normally, of course, the US Supreme Court plays no regard to foreign law but famously in Lawrence v. Texas, 539 U.S. 558, 575 (2003) which struck down the Texas laws criminalising homosexual conduct, this same Justice Anthony Kennedy, writing for the majority in that case, actually referred to and relied upon European Court of Human Rights jurisprudence on this issue, notably Dudgeon v. UK (1982) 4 EHRR 149.   The fact that the UK Supreme Court in HJ (Iran) should so comprehensively demolish the attempt meaningfully to distinguish between “behaviour” and “being” when it comes to sexual orientation can only serve as a succour to the plaintiffs in Perry v. Schwarzenegger and Gill and Letourneau v. Office of Personnel Management and may serve as a fillip to Justice Kennedy should these cases come before him in the US Supreme Court.

Justice Kennedy’s efforts in trying to open up the United States legal system to the benefits of comparative law were, of course, roundly scorned by Justice Antonin Scalia, in dissent, who referred to

“The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta.   Dangerous dicta, however, since .this Court . . . should not impose foreign moods, fads, or fashions on Americans’”.

What Scalia may make of the following observations from Lord Rodger’s judgment in HJ (Iran) will doubtless be made very plain should Perry v. Schwarzenegger ever make it to the US Supreme Court

“76.    No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution. Such an assumption about gay men and lesbian women is equally unacceptable. Most significantly, it is unacceptable as being inconsistent with the underlying purpose of the Convention since it involves the applicant denying or hiding precisely the innate characteristic which forms the basis of his claim of persecution …

77. At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable.  ….

78. … What is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.”

To conclude, and seeking to answer Professor Scaperlanda’s worried questioning, what seems to concern the Professor and what he seems to be driving at, is a suggestion or feeling that the specifically religious motivation for discriminatory attitudes and practices resulting in State persecution, should be worthy of some respect and deference from the courts.   But his objection to Lord Hope’s use of the word “misguided” itself seems to be misguided, in that it is clear from the passage quoted that Lord Hope was not there seeking to make any theological point, or to suggesting that the anti-gay views expressed were not in fact true expressions of the particular religious beliefs described.   Rather the tenor of the whole court’s decision in HJ (Iran) is that that those religious beliefs when acted upon are morally wrong because inimical to the proper respect for individual human dignity that is incumbent upon all States and societies.

The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific  and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world.   An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge.  There is no usurpation of power in the judges so doing in this particular case.