So What About Judge Walker’s Sexual Orientation, (or anybody else’s?)

I just posted a correction to my press release from yesterday, changing the modifier on Judge Walker from “openly gay,” to “widely reported to be gay.” As I noted, he has never denied the report, nor has he ever described himself as “gay.” I am willing to respect his self-understanding, and his privacy. Hence my amended press release.
However, this raises a question in my mind: what the heck do we mean by “gay” in the first place? Presumably, the statement “I am gay” means something to the person who utters it. But what does the term “gay” mean as a legal term? As of now, Judge Walker does not describe himself as “gay.” Is he entitled to consideration as a member of the class protected from sexual orientation discrimination? Can he define himself into that class if he decides he wants to?
This is no mere hair-splitting question. As we reported during the Prop 8 trial, one of the plaintiffs in the Perry case, Sandra Stier, was married to a man for 12 years. Did she become a lesbian because she decided to move in with a friend who happened to be female? Does she have to prove she is having sex with this friend in order to count as a lesbian?
We also reported on this issue in the Miller Jenkins disputed custody case. Lisa Miller had defined herself in and out of lesbianism. She rarely had sex with Janet Jenkins. In what sense does she count as a lesbian?
The point is simply this: the Gay Lobby is asking the government to create a protected class that a person can define themselves into and out of at their own discretion and convenience. This is unlike any other protected class. It is certainly unlike race. (This is one of the things that send African Americans ballistic about describing the movement for marriage redefinition as a “civil rights movement.” But that’s another blog post. )
The small army of LGBT lawyers may have an answer to this problem. But to the rest of us who are used to objective categories and rule of law, granting protected class status to a self-identification looks a lot like cheating.
This is why it makes far more sense to use existing legal categories and tools to solve the practical problems same sex couples face. Redefining marriage, and creating a new protected class, is certainly an unnecessary step too far.