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470 U. S. that if "employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community," disciplinary measures taken in response to such expression cannot be challenged under the First Amendment "absent the most unusual circumstances." Id., at 146, 147. The court below ruled that Connick requires the conclusion that a bisexual public employee constitutionally may be dismissed for "talking about it." This conclusion does not result inevitably from Connick, and may be questioned on at least two grounds: first, because petitioner's speech did indeed "touch upon" a matter of public concern, see id., at 149, and second, because speech even if characterized as private is entitled to constitutional protection when it does not in any way interfere with the employer's business.

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. Speech that "touches upon" this explosive issue is no less deserving of constitutional attention than speech relating to more widely condemned forms of discrimination.

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. Cf. Egger v. Phillips, 710 F. 2d 292, 317 (CA7 1983) (en banc) (“[T]he unpopularity of the issue surely does not mean that a voice crying out in the wilderness is entitled to less protection than a voice with a large, receptive audience"). It is the topic of the speech at issue, and not whether

Amendment rationale. See, e. g., Mt. Healthy City Board of Ed. v. Doyle, supra; Perry v. Sindermann, 408 U. S. 593 (1972).

'As the dissent below noted, once petitioner's bisexuality became known through her mention of it, "it [became] an important matter of public concern" in southern Ohio. 730 F. 2d, at 453.

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a debate on that topic is yet ongoing, that Connick directed federal courts to examine."

Moreover, even if petitioner's speech did not so obviously touch upon a matter of public concern, there remains a substantial constitutional question, reserved in Connick, whether it lies "totally beyond the protection of the First Amendment" given its nondisruptive character. See 461 U. S., at 147. The recognized goal of the Pickering-Connick rationale is to seek a "balance" between the interest of public employees in speaking freely and that of public employers in operating their workplaces without disruption. See 461 U. S., at 142, 154; Pickering, 391 U. S., at 568-569. As the jury below found, however, the latter interest simply is not implicated in this case. In such circumstances, Connick does not require that the former interest still receive no constitutional protection. Connick, and, indeed, all our precedents in this area, addressed discipline taken against employees for statements that arguably had some disruptive effect in the workplace. See, e. g., 461 U. S., at 151 ("mini-insurrection"); Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 285 (1977) ("dramatic and perhaps abrasive incident"); Pickering, supra, at 569 ("critical statements"). This case, however, involves no critical statements, but rather an entirely harmless mention of a fact about petitioner that apparently triggered certain prejudices held by her supervisors. Cf. Terminiello v. Chicago, 337 U. S. 1, 4-5 (1949). The Court carefully noted in Connick that it did "not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged." 461 U. S., at 154. This case poses the open question whether nondisruptive speech

"See Van Ooteghem v. Gray, 654 F. 2d 304 (CA5 1981) (en banc) (per curiam) (termination of a public employee because he reveals homosexuality and intention to speak publicly on that topic "clearly" constitutes Pickering violation).

"Many courts have noted that the disruptive potential of speech remains a vital component of First Amendment analysis in any public employment context after Connick. See, e. g., Curl v. Reavis, 740 F. 2d 1323, 1329, n. 5 (CA4 1984); Agromayor v. Colberg, 738 F. 2d 55, 61 (CA1 1984); McBee v. Jim Hogg County, Texas, 730 F. 2d 1009, 1017 (CA5 1984) (en banc); Berry v. Bailey, 726 F. 2d 670, 676 (CA11 1984); McGee v. South Pemiscot School District, 712 F. 2d 339, 342-343, n. 4 (CA8 1983); Egger v. Phillips, 710 F.2d 292, 320, nn. 29, 30 (CA7 1983) (en banc); McKinley v. City of Eloy, 705 F. 2d 1110, 1115 (CA9 1983).

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470 U. S.

ever can constitutionally serve as the basis for termination under the First Amendment.

B

Apart from the First Amendment, we have held that "[a] State cannot exclude a person from . any. occupation . . . for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment." Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239 (1957). And in applying the Equal Protection Clause, "we have treated as presumptively invidious those classifications that disadvantage a 'suspect class,' or that impinge upon the exercise of a 'fundamental right."" Plyler v. Doe, 457 U. S. 202, 216-217 (1982) (footnote omitted); see also id., at 245 (BURGER, C. J., dissenting) ("The Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility"). 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.

More

First, homosexuals constitute a significant and insular minority of this country's population. 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. over, 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." 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."

'Judge Edwards' dissent cited evidence indicating that homosexuals may constitute from 8-15% of the average population. 730 F. 2d, at 455-456 (citing J. Marmor, Homosexual Behavior: A Modern Reappraisal (1980)). He concluded that nonheterosexual preference, like minority race status, “evoke[s] deeply felt prejudices and fears on the part of many people." 730 F. 2d, at 453.

8

See, e. g., Mississippi University for Women v. Hogan, 458 U. S. 718, 723-724 (1982) (discrimination based on gender); Trimble v. Gordon, 430 U. S. 762, 767 (1977) (discrimination based on illegitimacy); Loving v. Virginia, 388 U. S. 1, 11 (1967) (discrimination based on race); Korematsu v. United States,

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Second, discrimination based on sexual preference has been found by many courts to infringe various fundamental constitutional rights, such as the rights to privacy or freedom of expression. Infringement of such rights found to be "explicitly or implicitly guaranteed by the Constitution," San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 33–34 (1973), likewise requires the State to demonstrate some compelling interest to survive strict judicial scrutiny. Plyler, supra, at 217. 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." Whisenhunt v. Spradlin, 464 U. S. 965, 971 (1983) (dissenting from denial of certiorari). Whether constitutional rights are infringed in sexual preference cases, and whether some compelling state interest can be advanced to permit their infringement, are important

323 U. S. 214, 216 (1944) (discrimination based on national origin); see also Plyler v. Doe, 457 U. S. 202, 218-223 (1982) (suggesting heightened scrutiny for discrimination against alien children).

'See, e. g., Gay Alliance of Students v. Matthews, 544 F. 2d 162, 167 (CA4 1976) (refusal to allow homosexual student group equal access to state university facilities invalidated because infringement of First Amendment rights to expression and association not supported by any "substantial governmental interest"); benShalom v. Secretary of the Army, 489 F. Supp. 964, 969, 973977 (ED Wis. 1980) (regulation requiring discharge based on homosexual "tendencies, desire, or interest, but . . . without overt homosexual acts" held unconstitutional as violative of First and Ninth Amendment rights and right to privacy); New York v. Onofre, 51 N. Y. 2d 476, 487-488, 492, n. 6, 415 N. E. 2d 936, 940, 942, n. 6 (1980) (criminal statute prohibiting private homosexual conduct found to infringe constitutional rights to privacy and equal protection under "compelling state interest" test), cert. denied, 451 U. S. 987 (1981). See also Rich v. Secretary of the Army, 735 F. 2d 1220, 1227, n. 7, 1228-1229 (CA10 1984) (noting "significant split of authority as to whether some private consensual homosexual behavior may have constitutional protection" but finding military's "compelling interest" in regulating homosexual conduct sufficient to uphold discharge based on false denial of homosexuality); Beller v. Middendorf, 632 F. 2d 788, 809-810 (CA9 1980) (same), cert. denied sub nom. Beller v. Lehman, 452 U. S. 905 (1981); but see Dronenburg v. Zech, 239 U. S. App. 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).

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questions that this Court has never addressed, and which have left the lower courts in some disarray. See n. 9, supra; cf. Carey v. Population Services International, 431 U. S. 678, 688, n. 5, 694, n. 17 (1977).10

Finally, even if adverse state action based on homosexual conduct were held valid under application of traditional equal protection principles, such approval would not answer the question, posed here, whether the mere nondisruptive expression of homosexual preference can pass muster even under a minimal rationality standard as the basis for discharge from public employment. This record plainly demonstrates that petitioner did not proselytize regarding her bisexuality, but rather that it became known simply in the course of her normal workday conversations."

10 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. The School District had a full and fair opportunity to persuade a jury that petitioner's bisexuality or her mention of it interfered with some aspect of school administration, but the jury found to the contrary.

"Petitioner's first mention of her bisexuality at school apparently came in response to friendly but repeated questions from her secretary as to why petitioner seemed in a particularly "good mood" one day. When petitioner eventually responded that she was in love with a woman, the secretary apparently was upset by the unexpected answer, and reported it to petitioner's Principal. 2 Rec. App. 101-102. On another occasion, petitioner was confronted by an angry mother who wanted to know why petitioner was counseling her to accept her son's expressed homosexuality when such conduct was “against the Bible." Petitioner did not inform the mother of her own preferences, but did inform her Vice Principal, because she was "uneasy" that if the mother complained her own "job would be at stake." Id., at 105-107. Finally, petitioner mentioned her bisexuality to some of her fellow teachers, first simply in the course of her friendships with them and later to enlist their support when it became clear that she would be disciplined for her bisexuality. Id., at 102-104, 113.

This evidence indicates that petitioner's "speech" perhaps is better evaluated as no more than a natural consequence of her sexual orientation, in the same way that co-workers generally know whom their fellow employees are dating or to whom they are married. Under this view, petitioner's First Amendment and equal protection claims may be seen to converge, because it is realistically impossible to separate her spoken statements from her status. The suggestion below that it was error not to separate the claims precisely for the jury's benefit, and reliance on that suggestion to avoid discussion of the merits of petitioner's claim, see 730 F. 2d, at 450, again simply exposes the Court of Appeals' reluctance to confront forthrightly the difficult issues posed