Status-Conduct, Old and New

Deborah A. Widiss, Intimate Liberties and Antidiscrimination Law, 97 B.U. L. Rev. 2083 (2017). Douglas NeJaime  The slippery relationship between status and conduct has preoccupied scholars, activists, and courts for many years.1 At various points, state and private actors have avoided claims of unlawful discrimination by disaggregating status from conduct—claiming that they have singled out individuals for unfavorable treatment based not on protected identity but rather on objectionable and unprotected acts. In Intimate Liberties and Antidiscrimination Law, Deborah Widiss uncovers the extensive reach of this status-conduct argument, persuasively urges actors in the legal system to abandon it, and elaborates the implications of that abandonment for current conflicts over the scope of antidiscrimination law. Perhaps nowhere has the status-conduct distinction been more prominent than in the realm of sexual orientation. In Bowers v. Hardwick, the 1986 decision…

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