Exploding the New Conduct-Status Distinction: Why Judge Walker's Sexual Orientation and Same-Sex Relationship are One and the Same

By Associate Professor Doug NeJaime

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

In denying the Proposition 8 proponents' motion to vacate Judge Walker's ruling, Judge Ware clearly got it right as a matter of judicial conduct. But he got it right in another way -- one that's more subtle and yet more significant: Judge Ware rejected the proponents' slippery distinction between sexual orientation and same-sex relationships.

In seeking to vacate Judge Walker's ruling that Proposition 8 is unconstitutional, the Proposition 8 proponents argued that they weren't challenging Judge Walker's impartiality based merely on his sexual orientation; rather, they were bothered by his long-term same-sex relationship. A gay judge, they argued, could decide a marriage equality case; a gay judge in a relationship, on the other hand, could not.

In making this crafty argument, the proponents relied on a distinction without a difference. Sexual orientation is by definition a relational category -- one's sexual orientation can only truly manifest itself with regard to another person (or at least the idea of another person). Therefore, to argue that Judge Walker should recuse himself based on his same-sex relationship is the same as arguing that he should recuse himself based on his sexual orientation. Judge Walker enacts and lives out his sexual orientation by having a relationship with another man.

This distinction between gay identity and same-sex relationships appears to be the new conduct-status distinction harming lesbians and gay men, supplanting its predecessor that distinguished between same-sex sex and sexual orientation. Bowers v. Hardwick, the U.S. Supreme Court decision upholding Georgia's anti-sodomy law, treated same-sex sex as mere conduct, undeserving of constitutional protection. Lawrence v. Texas overturned that ruling and in the process exploded the distinction between same-sex sex and gay identity. For Justice Kennedy, who wrote the majority opinion, and Justice O'Connor, who wrote a concurrence, a prohibition on same-sex sex (conduct) undeniably targeted lesbians and gay men based on their status. Accordingly, the Court rejected the conduct-status distinction that had served to deny lesbians and gay men constitutional protection for so long.

Yet in its wake, Lawrence v. Texas has given way to a new conduct-status distinction, one that treats same-sex relationships (both married and unmarried) as separate and apart from lesbian and gay identity. Through this lens, one's sexual orientation is an internal, individualistic quality while one's same-sex relationship is mere conduct; the law, the argument goes, can properly regulate the conduct even though it should not punish the status. Indeed, this distinction allows Christian Right advocates to argue that they support sexual orientation non-discrimination at the same time that they reject recognition of same-sex relationships; they are not, they claim, anti-gay. This conduct-status distinction is not just the tool of a powerful social movement mobilized against lesbian and gay equality. In fact, it has found voice in many areas of law that purport to protect the rights of lesbians and gay men. For instance, the separation of gay identity from same-sex relationships leads to employment non-discrimination laws that protect lesbian and gay workers as individuals but offer no benefits to their same-sex partners. And it justifies public accommodations laws that require businesses to serve lesbian and gay individuals but allow those businesses to differentiate between same-sex and different-sex couples.

Fortunately, judges (and everyone else) are slowly realizing that differential treatment of same-sex relationships is in fact differential treatment based on sexual orientation. Marriage equality litigation, including the Proposition 8 trial, has gone a long way toward deconstructing this dichotomy. But the most important interventions come when marriage is not at stake -- when the mere enactment of sexual orientation through a same-sex relationship, regardless of marital recognition, is treated as something different than sexual orientation identity. That's why Judge Ware's decision is so significant. In not allowing the Proposition 8 proponents to jump straight from Judge Walker's same-sex relationship to some speculative desire to marry, Judge Ware treated the proponents' attack on Judge Walker for what it truly is -- a challenge based merely on Judge Walker's sexual orientation. Indeed, Judge Ware, almost instinctively, analogized the challenge to a motion to disqualify any other minority judge presiding over a civil rights case. It is the judge's minority status, not conduct, that is at issue. In the end, Judge Ware struck another blow against the new conduct-status distinction that, unfortunately, continues to authorize discrimination against lesbians and gay men.