William J. Brennan

“ Connick 's reference to "matters of public concern" does not suggest a strict rule that an employee's first statement related to a volatile issue of public concern must go unprotected, simply because it is the first statement in the public debate. Such a rule would reduce public employees to second-class speakers, for they would be prohibited from speaking until and unless others first bring an issue to public attention. ”

“ I have previously noted that a multitude of our precedents supports the view that public employees maintain, no less than all other citizens, a fundamental constitutional right to make "private choices involving family life and personal autonomy." ”

“ Connick recognized that some issues are "inherently of public concern," citing "racial discrimination" as one example. Id., at 148, n. 8. I think it impossible not to note that a similar public debate is currently ongoing regarding the rights of homosexuals. The fact of petitioner's bisexuality, once spoken, necessarily and ineluctably involved her in that debate. [4] Speech that "touches upon" this explosive issue is no less deserving of constitutional attention than speech relating to more widely condemned forms of discrimination. ”

“ Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is "likely...to reflect deep-seated prejudice rather than...rationality." ”

“ This record is replete with direct evidence that petitioner's superiors discriminated against her because of her sexual preference. A jury is entitled to make rational inferences and apply its common-sense knowledge of the world, which includes the knowledge that most teachers are openly heterosexual and yet go undisciplined for that sexual preference. ”

“ Under this rubric, discrimination against homosexuals or bisexuals based solely on their sexual preference raises significant constitutional questions under both prongs of our settled equal protection analysis.
First, homosexuals constitute a significant and insular minority of this country's population. [7] Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena. ”

“ This case raises important constitutional questions regarding the rights of public employees to maintain and express their private sexual preferences. Petitioner, a public high school employee, "was fired because she was a homosexual who revealed her sexual preference--and, as the jury found, for no other reason." ”

“ D.C. 229, 236-239, 741 F.2d 1388, 1395-1398 (1984) (naval discharge for homosexual conduct upheld as "rationally related" to permissible goals of the military; no constitutional right of privacy implicated) . See generally Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 682-686 (1980) ; Symposium: Sexual Preference and Gender Identity, 30 Hastings L.J. 799-1181 (1979) .↑ . In this case, the School District has not even attempted to posit some legitimate interest that was advanced by terminating petitioner for her nondisruptive mention of her sexual preference. ”

“ Id., at 216, n. 14. State action taken against members of such groups based simply on their status as members of the group traditionally has been subjected to strict, or at least heightened, scrutiny by this Court. ”