A minor exception? The impact of Lawrence v. Texas on LGBT youth.

Author:Wardenski, Joseph J.
Position:Lesbian, gay, bisexual, transgender

    In our nation's cities, tens of thousands of teenagers live on the streets. (1) In major urban centers like New York, San Francisco, and Chicago, up to half of all of these teens may self-identify as lesbian, gay, bisexual, or transgender (LGBT). (2) Nationally, between eleven and forty percent of homeless youth are thought to be LGBT. (3) Like their non-LGBT counterparts in the homeless population, most homeless LGBT youth have been kicked out of or have run away from home, frequently cycling through the child welfare and foster care systems. (4) Many have been abused or harassed by parents, family members, child welfare workers and foster parents, and even classmates and teachers. (5)

    Consequently, for many homeless LGBT youth, the only "safe" space they can find is on the streets. (6) Not surprisingly, homelessness exposes LGBT youth to a host of troubling problems, including increased risk of becoming victims of crime and assault, (7) as well as a greater likelihood of committing crimes themselves--like theft, prostitution, and drug dealing--in order to survive. (8) They also face police harassment for minor infractions like loitering, public drinking, or subway turnstile jumping--or for nothing at all. (9) Committing such offenses may usher them back into the same system that failed them the first time. (10) LGBT youth offenders' experiences in the juvenile justice system--when they are arrested, tried in juvenile court, sentenced, and ultimately incarcerated--are plagued by intentional and unintentional discrimination because of their real or perceived sexual orientation. (11)

    While at-risk and disenfranchised LGBT youth continue to face severe discrimination--in their homes, schools, child welfare placements, and the juvenile justice system--the gay and lesbian community as a whole achieved a significant legal advance in its quest for equality in the United States Supreme Court's 2003 decision in Lawrence v. Texas, (12) which invalidated states' statutory prohibitions of homosexual sodomy. (13) Generally considered the most gay-friendly decision ever issued by the Court, many commentators view Lawrence as a tall stepping-stone toward increased legal and social equality for sexual minorities. (14) The immediate effect of Lawrence was to decriminalize sexual conduct between individuals of the same sex--itself a historic, landmark advance for gays and lesbians. By finding that sodomy statutes violated the Due Process Clause of the Fourteenth Amendment, (15) however, the Court acknowledged that its decision extended beyond only legalizing gay sex. (16) The decision also lifted a major legal stigma associated with being homosexual. (17) As long as sodomy statutes remained on the books, gay and lesbian adults bore the presumption of criminality because of the illegality of the sexual acts associated with their sexual identity. (18) Laurence Tribe has noted that Lawrence lifted this stigma of criminalization from all gays and lesbians, writing:

    Lawrence quickly becomes a story about how the very fact of criminalization, even unaccompanied by any appreciable number of prosecutions, can cast already misunderstood or despised individuals into grossly stereotyped roles.... The outlawed acts ... come to represent human identities, and this reductionist conflation of ostracized identity with outlawed act in turn reinforces the vicious cycle of distancing and stigma that preserves the equilibrium of oppression.... (19) This presumption remained alive and well until June 2003, when with the abolition of sodomy statutes, gays and lesbians were able to shed--as individuals and as a community--this subjugated outlaw status. (20) For the first time, being gay was not a criminal act.

    In decriminalizing gay and lesbian adults' sexual behavior, (21) the Supreme Court effectively legitimized the status of being gay. The sex act had been used for so long to define gay people solely by the "criminal" sex in which they were likely to engage. (22) Through Lawrence, the gay community was able to toss off that reductionist shackle--and to define itself more wholly in terms of the full range of emotions, attractions, and, indeed, sexual preferences, that constitute the core human identity of a gay or lesbian person. (23)

    Unfortunately, for many LGBT young people, their sexual identity still bears the stigma of criminality. (24) Correctly interpreted, Lawrence should, however, offer relief both to adult gays and lesbians and to the most marginalized, invisible, and ill-treated subpopulation of the LGBT community--its homeless and incarcerated youth. Lawrence bolsters the Court's previous holding in Romer v. Evans (25) that a more searching form of rational basis review is required when addressing discriminatory policies targeted against LGBT people as a group. (26) Since Lawrence, however, some courts have misunderstood and wrongly applied one seven-word phrase in Justice Anthony Kennedy's majority opinion, "[t]he present case does not involve minors," (27) which this comment will refer to as "the minor exception." This phrase has been incorrectly interpreted to limit the reach of Lawrence by excluding LGBT youth from the decision's scope, since its proper application is to preclude adult sex offenders from seeking a liberty interest to engage in sexual conduct with children--an issue unrelated to sexual orientation. (28) Further, although the Court in Lawrence recognized that gays and lesbians are a distinct class of people who face societal discrimination, it failed to take the next step and conclusively hold that sexual orientation is a suspect classification for purposes of constitutional review. (29) Under this narrow view, by just decriminalizing the sex act, but not formally extending protections on the basis of sexual identity, it could be argued that youth (and others) who are not sexually active may be found to fall outside the scope of the holding.

    The central questions posed by this comment are (1) how Lawrence affected the status of sexual minority youth as a class, if at all; and (2) whether the decision will be useful in seeking expanded legal protections for at-risk LGBT youth. Since Lawrence, a judicial and public backlash against LGBT rights has emerged. (30) In 2004, voters in thirteen states approved ballot measures creating state constitutional amendments banning same-sex marriage. (31) Several state and federal courts have issued decisions narrowly construing Lawrence and attempting to restrict its scope, (32) raising questions of how other courts will apply Lawrence to cases involving LGBT youth. This comment will argue that Lawrence decriminalized not just consensual sodomy between homosexual adults, but also the very status of being gay or lesbian, and as such, should also be interpreted to include gay youth in its protections.

    Part II of this paper will describe the discrimination faced by LGBT young people on the basis of their sexual identity, including special risks of homelessness and exposure to the juvenile justice system; review empirical data on children's sexual identity formation and contrast it with stereotypes still used to abridge gay rights; and discuss courts' conceptions of the existence and rights of LGBT youth prior to Lawrence.

    Part III will argue that a correct reading of Lawrence should render any discrimination against youth on the basis of sexual orientation constitutionally suspect. Lawrence recognized that gays and lesbians are a distinct class of citizens, whose liberty interests include the rights to realize their human and sexual identity free from state-sanctioned interference based on the majority's animus or ignorance. While it stops short of labeling LGBT people a protected class in constitutional terms, the decision implicitly recognizes that gay people are something more than the sexual acts in which they engage. This comment will analyze two 2004 decisions, Lotion v. Secretary of Department of Children & Family Services (33) in the Eleventh Circuit and State v. Limon (34) from the Kansas Court of Appeals, both of which incorrectly construed Lawrence to categorically exclude LGBT youth from any legal protections, relying on grounds Lawrence itself made irrational. It will argue that the "minor exception" in the decision's caveat paragraph cannot be read to justify discriminatory policies against LGBT adults and minors.

    This comment will conclude that Lawrence should be used by advocates for LGBT youth who are homeless, at risk of entering the juvenile justice system, or already confined in detention or prison facilities. Specifically, policies, practices, and conditions of confinement that treat LGBT youth differently and detrimentally do not, in light of Lawrence, bear any rational relation to legitimate state interests.


    The United States Supreme Court declared in Lawrence v. Texas (35) that state sodomy statutes violated gay and lesbian individuals' liberty interests under the Due Process Clause of the Fourteenth Amendment. (36) In Lawrence, the Court overturned its 1986 decision in Bowers v. Hardwick, (37) in which the Court found such statutes constitutionally permissible and rejected the gay plaintiffs' equal protection claims as "facetious." (38) In reversing Bowers, the Court not only legalized same-sex sexual activity, but also removed one of the most significant legally-sanctioned justifications for discrimination against LGBT people as a class. (39) The Lawrence decision, which implicitly recognized a growing social acceptance and understanding of gays and lesbians, (40) was issued during a historic moment when LGBT youth were also starting to become increasingly visible in communities across the country. (41)

    This section will first review the research on youth sexuality and the cultural shifts which have led to LGBT youth acknowledging their homosexuality or gender identity earlier than in generations past. Next, it...

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