At the OUPblog, Martha Nussbaum suggests a Constitutional parallel between religion and sexual orientation:
Now of course the pursuit of sexual happiness is in many important ways unlike religion… Nonetheless, the point of the analogy is to say that the pursuit of sexual happiness is viewed by most Americans as a very intimate and important part of the pursuit of happiness, a part that touches on the core of the self…For that reason…it is important for people to be able to manage the choices involved in their sexual lives themselves, without interference from the state, unless they violate the rights of others. That though, as we shall see, is a major part of the unfolding constitutional tradition in this area…
That is the “free exercise” side of the analogy. But what about the establishment side? Could the state give everyone plenty of sexual liberty and still announce that a particular style of sexual interaction is preferred, and support that preference with public policies of various sorts…? The religion analogy at least suggests that the answer should be “no”. For the state even to “establish” a particular sexual style as the privileged one is to imply the inferiority of those not practicing the preferred style.
Read more at OUPblog.