“Sexual orientation” is not an innate, indisputable characteristic, like race, nationality or sex, and instead encapsulates a concept based on changing personas and personal sexual decisions. The United States Supreme Court grants protected status to immutable characteristics, present from birth and has not recognized “sexual orientation” as a protected class. Therefore, to include sexual orientation is nontraditional as it compares to other nondiscrimination provisions. In including this protected class, the North Carolina State Bar would have assumed that every person is born with an inherent sexual orientation, a fact that is not widely accepted or scientifically proven.
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“One important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.” When applied, a “sexual orientation” protection class would have violated the constitutional protection against compelled speech given to private individuals. The well-established rule against compelled speech and expression prohibits the government from compelling an individual- including an attorney- to express or affirm a message in conflict with his or her private beliefs. If the North Carolina State Bar protected this class, attorneys would have been forced to take cases contrary to their beliefs and therefore, violate expressive First Amendment rights.