Ethics and Equal Protection: Anti-Bias Rules as an Imperfect Substitute for Heightened Scrutiny

Abstract

In 1990, the American Bar Association amended Canon 3 of its proposed code of judicial conduct to provide that "a judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice . . . based upon . . . sexual orientation." At least twenty-nine states appear to agree that gay men and lesbians might require some protection from bias, and have accordingly adopted the ABA's proposed anti-bias language in Canon 3. This article presents an interpretation of that language, explaining what it might mean for a court system to prohibit bias or prejudice on the basis of sexual orientation.

The article argues that judges violate Canon 3 not only when they show disrespect to gay men and lesbians, but also when they permit their attitudes toward homosexuality to color fact-finding ("positive bias") or affect interpretation and application of law ("normative bias"). The article describes the way positive bias might lead judges to rely upon their own assumptions about homosexuality instead of searching for solid evidence. It highlights the methodological flaws that might undermine empirical studies, alerting judges to the dangers of relying upon statistical evidence about homosexuality. Finally, it pushes the Canon 3 envelope by exploring the ways that judges might show bias through legal rulings. The article argues that judges violate Canon 3 if they rule against gay or lesbian litigants on the basis of sexual orientation unless they are compelled to do so. To determine whether judges are compelled to rule on the basis of sexual orientation, the article offers a two-fold inquiry: first, judges must consider whether the anti-gay rule they are called upon to apply is truly binding upon them, and second, they must consider whether a binding rule is unambiguously anti-gay. Canon 3 imposes upon judges an obligation to try, whenever possible, to rule in a gay-neutral way.

This broad interpretation of Canon 3 renders it a substitute for heightened consitutional scrutiny, albeit an imperfect one. Canon 3 can bind, at most, only one branch of government, and only in the 29 states that have adopted it. State executives, state legislators, and federal actors of all three branches remain free of Canon 3's requirements. Thus Canon 3 cannot give all the relief that more searching constitutional review would confer. This article shows, however, that where it has been adopted, Canon 3 could influence some judges powerfully, mandating some of the results that would obtain under heightened scrutiny.