Having considered the evidence, the
relationship between sex and sexual orientation and the fact that
Proposition 8 eliminates a right only a gay man or a lesbian would
exercise, the court determines that plaintiffs’ equal protection
claim is based on sexual orientation.....
https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf
You dropped the context. The courts have held that for their purposes there is no distinction between conduct and status. Therefore, if you marry someone of the same sex you are a homosexual...
Plaintiffs challenge Proposition 8 as violating the Equal
Protection Clause because Proposition 8 discriminates both on the
basis of sex and on the basis of sexual orientation. Sexual
orientation discrimination can take the form of sex discrimination.
Here, for example, Perry is prohibited from marrying Stier, a
woman, because Perry is a woman. If Perry were a man, Proposition
8 would not prohibit the marriage. Thus, Proposition 8 operates to
restrict Perry’s choice of marital partner because of her sex. But
Proposition 8 also operates to restrict Perry’s choice of marital
partner because of her sexual orientation; her desire to marry
another woman arises only because she is a lesbian.
The evidence at trial shows that gays and lesbians
experience discrimination based on unfounded stereotypes and
prejudices specific to sexual orientation. Gays and lesbians have
historically been targeted for discrimination because of their
sexual orientation; that discrimination continues to the present.
FF 74-76. As the case of Perry and the other plaintiffs
illustrates, sex and sexual orientation are necessarily
interrelated, as an individual’s choice of romantic or intimate
partner based on sex is a large part of what defines an
individual’s sexual orientation. See FF 42-43. Sexual orientation
discrimination is thus a phenomenon distinct from, but related to,
sex discrimination.
Proponents argue that Proposition 8 does not target gays
and lesbians because its language does not refer to them. In so
arguing, proponents seek to mask their own initiative. FF 57.
Those who choose to marry someone of the opposite sex ——
heterosexuals —— do not have their choice of marital partner
restricted by Proposition 8. Those who would choose to marry
someone of the same sex —— homosexuals —— have had their right to
marry eliminated by an amendment to the state constitution.
Homosexual conduct and identity together define what it means to be
gay or lesbian. See FF 42-43. Indeed, homosexual conduct and
attraction are constitutionally protected and integral parts of
what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42-
43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt
2971, No 08-1371 Slip Op at 23 (“
Our decisions have declined to
distinguish between status and conduct in [the context of sexual
orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583
(O’Connor, J, concurring)).
Proposition 8 targets gays and lesbians in a manner
specific to their sexual orientation and, because of their
relationship to one another, Proposition 8 targets them
specifically due to sex. Having considered the evidence, the
relationship between sex and sexual orientation and the fact that
Proposition 8 eliminates a right only a gay man or a lesbian would
exercise, the court determines that plaintiffs’ equal protection
claim is based on sexual orientation, but this claim is equivalent
to a claim of discrimination based on sex.
