Don\u27t Say Gay: The Government\u27s Silence and the Equal Protection Clause

This paper will argue that the LGBT movement has played, and will continue to play, a significant role in developing doctrines that subject government speech to the requirements of the Equal Protection Clause. In particular, the paper will examine how this doctrine is being developed in litigation around anti-LGBT curriculum laws—statutes that prohibit or restrict the discussion of LGBT people and topics in public schools. It argues that this litigation demonstrates how the Equal Protection Clause can be violated by the government’s silence, as well as the government’s speech. In addition, it explains why the Don’t Say Gay Laws recently passed in Florida and Alabama are unconstitutional, for the same reasons as the anti-LGBT curriculum laws passed in earlier eras

Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia

This Article argues that gender influences the expression of homophobic and heterosexist stereotypes about gay and lesbian parents. By conducting a comparative analysis of reported family law opinions, it shows that gay and lesbian parents are subjected to gender-influenced stereotypes in custody and visitation cases - stereotypes that are influenced by the parent’s gender, the child’s gender, and the judge’s gender. First, gay fathers are subjected to two stereotypes that are influenced by the parent’s gender. They are stereotyped as HIV agents and child molesters - men who infect children with HIV and sexually abuse children, especially boys. Lesbian mothers are not stereotyped as HIV agents, and they are rarely stereotyped as child molesters. Next, both gay fathers and lesbian mothers are subjected to two stereotypes that are influenced by the child’s gender. They are stereotyped as recruiters and role models - people who encourage children to become homosexual. Although recruiting and role modeling stereotypes are applied to both gay and lesbian parents, they are applied more often to the parents of sons than the parents of daughters, and they are rarely applied to the fathers of daughters. This pattern betrays patriarchal concerns about the importance of fathers in the production of masculine, heterosexual boys. Finally, all of these stereotypes are influenced by the judge’s gender. Male judges are more likely than female judges to accept gender-influenced stereotypes about gay and lesbian parents. This pattern reflects the observed tendencies of heterosexual men to accept homophobic and heterosexist stereotypes more often than heterosexual women and apply such stereotypes to gay men more often than to lesbians. In the legal academy’s responses to stereotypes about gay and lesbian parents, scholars have been blind to the influence of gender. By ignoring the influence of the parent’s gender, we have introduced unnecessary omissions and weaknesses into our responses to HIV and child molestation stereotypes. By ignoring the influence of the child’s gender, we have failed to notice the reciprocal relationship between homophobia and gender, and we have imposed arbitrary limits on our responses to recruiting and role modeling stereotypes. By taking account of the relationship between homophobia and gender, we can develop a more rigorous and inclusive case on behalf of gay and lesbian families - a case that vindicates not only the parental interests of gay men and lesbians but the developmental interests of children who may grow up to be gay men and lesbians, too

Perry v. Schwarzenegger and the Future of Same-Sex Marriage Law

In Perry v. Schwarzenegger, Chief Judge Vaughn Walker held that Proposition 8 — an amendment to the California Constitution that prohibits same-sex couples from marrying — violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. To date, legal experts have claimed that although Judge Walker’s factual findings may be novel and significant, his legal analysis is familiar and not likely to have a significant impact, in this case or others. This Article argues that the common wisdom about Judge Walker’s ruling is misguided, because it overlooks novel aspects of Judge Walker’s legal analysis that have the potential to make valuable contributions to the development of same-sex marriage law. By building upon passages from Judge Walker’s ruling, the Article develops three new challenges to the constitutionality of laws that prohibit same-sex couples from marrying. Part I argues that the historical relationship between sex discrimination and sexual orientation discrimination can provide a basis for applying heightened scrutiny to laws against same-sex marriage under the Due Process Clause, as an alternative to the prevailing theory that calls for applying heightened scrutiny to such laws under the Equal Protection Clause. Part II argues that under the Due Process and Equal Protection Clauses, the state may not justify laws against same-sex marriage based on the fear that exposing children to homosexuality will encourage them to be lesbian, gay, or bisexual, because the state does not have any legitimate interest in encouraging children to be heterosexual. Part III argues that the Due Process and Equal Protection Clauses prohibit the state from justifying laws against same-sex marriage on purely moral grounds for similar reasons, and to a similar extent, that the Establishment Clause prohibits the state from justifying such laws on purely religious grounds. While each of these challenges represents a significant contribution to the development of same-sex marriage law, each one also offers a new insight into the meaning of the Due Process and Equal Protection Clauses, thereby contributing to broader developments in the theory and practice of constitutional law. The Article concludes by exploring how these challenges may change the ways that litigants and courts analyze the constitutionality of laws against same-sex marriage and how they are likely to be received by the U.S. Supreme Court

No Promo Hetero: Children\u27s Right to Be Queer

This Article argues that the government has no legitimate interest in promoting heterosexuality or gender conformity during childhood. Although opponents of LGBT rights have longed cited this goal as one of the primary justifications for discrimination against LGBT people, it has no constitutional foundation upon which to stand. Building upon a familiar schema of legal scholarship on LGBT rights, this Article challenges the state’s interest in promoting heterosexuality by articulating a tripartite defense of children’s speech, status, and conduct. It argues that these three aspects of homosexuality are connected to and protected by three constitutional clauses — the First Amendment, the Equal Protection Clause, and the Due Process Clause. When the state claims that promoting heterosexuality in childhood is a legitimate state interest, it violates at least one and perhaps all of these clauses. When this policy targets children’s homosexual speech, it is a form of viewpoint discrimination that violates the First Amendment. When this policy targets children’s homosexual status, it is a form of animus against lesbian, gay, and bisexual people that violates the Equal Protection Clause. When this policy targets children’s homosexual relationships, it is a form of moral disapproval of homosexual conduct that violates the Due Process Clause. Taken together, these clauses require the state to maintain a neutral stance vis-à-vis the orientation of children’s speech, status, and conduct, and they guarantee every’s child equal liberty to be straight or queer. After developing a similar critique of the state’s interest in promoting gender conformity during childhood, the Article concludes by exploring the theoretical boundaries and implications of this constitutional framework. Drawing on one of queer theory’s foundational texts, it argues that No Promo Hetero challenges are both more universal than traditional identity claims, yet more liberal than many traditional diversity claims. By proceeding from decidedly queer premises, this Article makes the case for the full spectrum of children’s queerness — as a form of expression, behavior, and identity — within familiar frameworks of constitutional law

Fear of the Queer Child

This article is about the fear of the queer child — the fear that exposing children to homosexuality and gender variance makes them more likely to develop homosexual desires, engage in homosexual acts, deviate from traditional gender norms, or identify as lesbian, gay, bisexual, or transgender. This fear is thousands of years old, but it has undergone a remarkable transformation in the last half-century, in response to the rise of the LGBT movement. For centuries, the fear had been articulated specifically in sexual terms, as a belief that children would be seduced into queerness by adults. Since the 1970s, it has been reformulated in the more palatable and plausible terms of indoctrination, role modeling, and public approval. Since the earliest days of the LGBT movement, advocates have responded to this fear by insisting that it is empirically false — that sodomy laws have “nothing to do” with children, that marriage laws have “nothing to do” with schools, that children raised by lesbian and gay parents are “no different” than children raised by heterosexual parents — and above all, that children’s sexual orientation and gender identity are fixed early in life and cannot be learned or taught, chosen or changed. In recent years, this empirical strategy has begun to falter, as advocates run up against the inherent vagueness, incompleteness, and unpredictability of empirical data. To break through this strategic impasse, this article highlights a growing vanguard of scholars, lawyers, and judges who are developing a normative challenge to the fear of the queer child. It argues that the state has no legitimate interest in encouraging children to be straight or discouraging them from being queer, because it may not presume that queerness is immoral, harmful, or inferior — in children or in anyone else. The state must adopt a neutral stance toward children’s straightness or queerness, without attempting to promote one set of desires, behaviors, or identities over the other

Anti-Gay Curriculum Laws

Since the Supreme Court’s invalidation of anti-gay marriage laws, scholars and advocates have begun discussing what issues the LGBT movement should prioritize next. This article joins that dialogue by developing the framework for a national campaign to invalidate anti-gay curriculum laws—statutes that prohibit or restrict the discussion of homosexuality in public schools. These laws are artifacts of a bygone era in which official discrimination against LGBT people was both lawful and rampant. But they are far more prevalent than others have recognized. In the existing literature, scholars and advocates have referred to these provisions as “no promo homo” laws and claimed that they exist in only a handful of states. Based on a comprehensive survey of federal and state law, this article shows that anti-gay provisions exist in the curriculum laws of twenty states, and in several provisions of one federal law that governs the distribution of $75 million in annual funding for abstinence education programs. In light of the Supreme Court’s rulings in four landmark gay rights cases, these laws plainly violate the Constitution’s equal protection guarantees, because they are not rationally related to any legitimate governmental interests. For the moment, however, federal and state officials still have the legal authority to enforce these laws, because no court has enjoined them from doing so. By challenging one of the country’s last vestiges of state-sponsored homophobia, advocates can help to protect millions of students from stigmatization and bullying, giving them an opportunity to thrive in our nation’s public schools

Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States

Should our punishment, policing, and military institutions be public, private, or both? Is there a special link between the project of government and the exercise of force? These two questions have vexed philosophers for several centuries, and lately, they have begun to present more practical problems as well. In the past three decades, private punishment, policing, and military markets have blossomed and boomed in liberal states. Private prisons, police, and armies have been popping up around the world, punishing criminals, fighting crimes, keeping peace, and waging war. The use of force has generated unprecedented profits, and the boundaries between public and private uses of force have become increasingly blurred. Observers of these trends expect them to continue and accelerate. This Article brings these three trends together under one rubric: the privatization of force. By bringing together fundamental categories of economic and political analysis, it develops a theory of the relationship between government and force in liberal states

Census Snapshot: Minnesota

Using data from the U.S. Census Bureau, this report provides demographic and economic information about same-sex couples and same-sex couples raising children in Minnesota. We compare same-sex "unmarried partners," which the Census Bureau defines as an unmarried couple who "shares living quarters and has a close personal relationship," to different-sex married couples in Minnesota

Census Snapshot: Ohio

Using data from the U.S. Census Bureau, this report provides demographic and economic information about same-sex couples and same-sex couples raising children in Ohio. We compare same-sex "unmarried partners," which the Census Bureau defines as an unmarried couple who "shares living quarters and has a close personal relationship," to different-sex married couples in Ohio