concurring.
In his twenty-third point of error, appellant contends the trial judge erred in excluding evidence of the victim’s homosexuality. Appellant argues the evidence was admissible to establish the victim, because of his homosexuality, was a less valuable member of society and, therefore, appellant was less deserving of the death penalty.1
I.
In Smith v. State, 919 S.W.2d 96 (Tex.Cr.App.1996) (plurality opinion), we held Tex. Code Crim.Proc.Ann. art. 37.071 does not permit the admission of victim impact evidence and such is inadmissible as a matter of law to the extent it is not directly related to the circumstances of the offense or necessary for rebuttal. Id, 919 S.W.2d at 101. This holding was based, in part, on State v. Car*557ter, 888 P.2d 629, 651 (Utah 1995), which held:
permitting the State to introduce victim impact evidence shifts the focus of the proceeding from the defendant to the victim and the effect of the murder on the victim’s family and community. This shift adds nothing to the culpability analysis and is fraught with danger. [Citation omitted.] Aside from causing the jury to lose sight of its immediate task, the shift suggests that some victims are more valuable to society and/or deserve more sympathy than others.
The Carter Court thereafter held that victim impact evidence simply has no probative force in the sentencing context.
Such evidence does not make it more or less likely that a defendant deserves the death penalty. In our society, individuals are of equal value and must be treated that way. We will not tempt sentencing authorities to distinguish among victims — to find one person’s death more or less deserving of retribution merely because he or she was held in higher or lower regard by family and peers. Such a scheme draws lines in our society that we think should not be drawn. The worth of a human life is inestimable, and we do not condemn those who take life more or less harshly because of the perceived value or quality of the life taken. [Citation omitted.] Indeed, society is probably incapable of evenhand-edness in such judgments.
Id., 888 P.2d at 652.
In the instant case, had the trial judge permitted evidence of the victim’s homosexuality, the jury would have been asked to find that appellant was less deserving of death because his victim was less deserving of life. Although Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), holds that the admission of victim impact evidence is not intended to re-focus the trial upon the victim’s character, or to encourage comparative judgments between victims, 501 U.S. at 823, 111 S.Ct. at 2607, it is clear that by concentrating on the victim’s personal characteristics, or the results of the offense upon the survivors, the jury will inevitably, if unintentionally, base their judgment in part upon the victim’s personal achievements (or failures) and the number of people impacted by the crime. Alvarado v. State, 912 S.W.2d 199, 223 (Tex.Cr.App.1995) (Baird and Meyers, JJ., concurring). Moreover, if such evidence were admissible under art. 37.071 and the State were permitted to introduce evidence of the victim’s value to society, the defense must be permitted to rebut that showing with degrading evidence tending to demonstrate lack of worth. Id., 912 S.W.2d at 224 (quoting Carter, 888 P.2d at 652). For these reasons Payne accomplishes the unintended, it encourages comparative judgments between victims. Because of its internal contradictions Payne is unworkable in a society that values the worth and dignity of each human being.
II.
Additionally, I categorically reject appellant’s argument that homosexuals are less valuable members of society and, therefore, appellant is less deathworthy for taking a homosexual’s life. Appellant’s argument ignores the fact that every member of our society has the unalienable right to not be victimized by criminal conduct.2
Although appellant fails to explain how homosexuality decreases a person’s value or how a victim’s homosexuality should mitigate the punishment for a crime,3 appellant’s argument is clearly based on the erroneous assumption that certain members of our society are inferior to others. Similar arguments have been rejected. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). *558See also, Brown v. Board of Education, 347 U.S. 4883, 74 S.Ct. 686, 98 L.Ed. 873 (1954); and, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). For example, in Strauder, the Supreme Court rejected the argument that “colored people” were inferior to other members of society. Strauder, 100 U.S. at 308.4
If appellant’s argument prevailed, future defendants would be entitled to argue that their victims were less valuable members of society because of their age, race, gender, religion or socioeconomic status. Instead, society so abhors appellant’s argument that those who perpetrate crimes based on a victim’s group affiliation, such as homosexuality, may be punished more severely. See, Tex. Code Crim.Proc.Ann. art. 42.014 and Tex. Penal Code Ann. § 12.47.5 There is no place in an enlightened society for one to believe that perpetrating a crime on an individual is less reprehensible because of the victim’s age, race, gender, religion, sexual orientation or socioeconomic status. In short, evidence of the victim’s homosexuality has no mitigating value.
With these comments, I join the majority opinion to the extent it holds victim impact evidence is inadmissible as a matter of law.
. Appellant’s twenty-third point of error states:
The trial court erred in refusing to admit evidence relating to the background of the victim thereby depriving the jury of the full range of evidence that may he considered in the decision as to whether the death penalty was the appropriate punishment for the appellant.
. AH members of our society possess certain unalienable rights, including life, liberty and the pursuit of happiness. The Declaration of Independence para. 2 (U.S. 1776).
. Under our capital sentencing scheme, defendants are entitled to present evidence that mitigates against the imposition of the death penalty. Tex.Code Crim.Proc.Ann. art. 37.071(2)(a). See also, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (The Supreme Court acknowledged the assurance that this Court would interpret Tex.Code Crim.Proc.Ann. art. 37.071 "so as to allow a defendant to bring to the jury’s attention whatever mitigating circumstances he maybe able to show.”).
. Additionally, several jurisdictions have specifically rejected the discrimination against homosexuals. See, Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993) (Same-sex couples may have an equal protection right under the Hawaii Constitution to many.); In re custody of H.S.H.-K., 193 Wis.2d 649, 533 N.W.2d 419 (1995) (Biological mother's former same-sex partner may be entitled to visitation rights of the child both were raising.); In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271 (1993) (Homosexual couples are permitted to adopt.). And, most recently, the Supreme Court held any governmental discrimination against homosexuals violates the Equal Protection Clause of the Fourteenth Amendment absent proof that such discrimination bears a rational relationship to a legitimate end. Romer v. Evans, — U.S. -, -, 116 S.Ct. 1620, 1625, — L.Ed.2d --(1996).
. Art. 42.014 provides:
In the punishment phase of the trial of an offense under the Penal Code, if the court determines that the defendant intentionally selected the victim primarily because of the defendant’s bias or prejudice against a group, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of that case.
Section 12.47 provides:
If the court makes an affirmative finding under Article 42.014 Code of Criminal Procedure, in the punishment phase of the trial of an offense other than a first degree felony, the punishment for the offense is increased to the punishment prescribed for the next highest category of offense.