Scientist Robert Spitzer's recent retraction of a study that suggests so-called ex-gay therapy can be effective may be a gateway to striking down Proposition 8 in court, says New York University legal scholar Kenji Yoshino.
Spitzer wrote a letter to Ken Zucker, editor of the Archives of Sexual Behavior, the journal that published his 2001 study claiming that "highly motivated" gays and lesbians could reverse their sexual orientation. Spitzer's letter also apologizes to LGBT people for "making unproven claims of the efficacy of reparative therapy," he wrote."I also apologize to any gay person who wasted time and energy undergoing some form of reparative therapy because they believed that I had proven that reparative therapy works with some 'highly motivated' individuals."
Spitzer's realization went public after journalist Gabriel Arana's report in TheAmerican Prospect related to his own experience with "ex-gay" therapy, in which he spoke with Spitzer. The researcher said he requested a retraction in the Archives of Sexual Behavior, but the editor had declined to run it.
The study was a significant part of the argument brought forward by antigay forces, especially those defending Proposition 8 in court. They argued that because the study said a person could change their sexual orientation, no one should not be allowed to marry people of the same sex. On Thursday's episode of The Rachel Maddow Show, Yoshino said that Spitzer's announcement could translate to gay people being included as a protected class under the Equal Protection Clause of the U.S. Constitution.
"The reason that immutability is important is because under the Equal Protection Clause of the Fourteenth Amendment, there’s a standard called heightened scrutiny," Yoshino said. "There's certain classifications like race, national origin, sex, nonmarital parentage, and lineage that get that form of heightened scrutiny. The $64,000 question of this case is whether or not sexual orientation is going to be added to that list. And one of the criteria that's been looked at to determine whether or not a group gets heightened scrutiny is immutability, as you mentioned. So the fact that Spitzer retracting this and the fact that the testimony in the Prop. 8 trial was overwhelming for the fact that sexual orientation is very hard to change could figure into that analysis."