Status and Conduct

So the White House is busy trying to allow federal agencies to fire employees for being gay. This is a bit of a tough one for them, given that there’s a 1978 law on the books that protects federal employees from job discrimination on the basis of conduct unrelated to their jobs. (Silly good government civil service laws.) The Clinton administration read this provision at something close to face value, figuring that private sexual conduct is rarely if ever related to one’s job performance.

Well, Scott Bloch, late of the Task Force for Faith-based and Community Initiatives, and now in the Office of Special Counsel, thinks he has a way around that pesky statute. Just define sexual conduct as something separate from sexual orientation, and bingo! Suddenly being gay is no longer “conduct” and now falls outside the scope of what the statute protects. In Bloch’s words, “Someone may have jumped to the conclusion that conduct equals sexual orientation, but they are essentially very different. One is a class … and one is behavior.”

We call this a distinction without a difference, class. And it’s a distinction that has already been discredited when it comes to sexuality. But there’s something even more ridiculous about Bloch’s claim … he’s trying to make the distinction cut in the wrong direction.

When it comes to anti-discrimination law and principles of equality in this country, one’s status is more protected than conduct, not less. Romer v. Evans articulated the proposition that “mere” animus against a class of people — even a class that’s not on the historic list of suspect classifications — is not a legitimate basis for governmental policy. Lawrence v. Texas goes even further: it says that some forms of conduct are so intimately (no pun intended) bound up with sexual status as to be beyond the scope of what government can prohibit.

So when Bloch says that the government is “only” allowed to go after status, he’s in fact naming the one thing that government is often not allowed to go after. Leaving aside the issue of whether his statutory interpretation would or will stand up on judicial review, after Lawrence it’s not clear that the government would be allowed to fire someone just for being gay. Even most of the pre-Lawrence cases dealt only with conduct.

For one final illustration of the absurdity, compare Bloch’s proposed policy with don’t-ask/don’t-tell. That policy says that the military will not fire anyone just for being gay, but only for homosexual acts. Whereas in the civil service, being gay will get you bounced, but homosexual acts are fine.

As usual, the Bushies are being not just malicious, but idiotically malicious.

UPDATE: Fixed, thanks.