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No Promo Hetero: Children’S Right to Be Queer

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No Promo Hetero: Children’S Right to Be Queer ROSKY.35.2 (Do Not Delete) 12/17/2013 9:45 AM NO PROMO HETERO: CHILDREN’S RIGHT TO BE QUEER Clifford J. Rosky† This Article argues that the state 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 schema familiar to legal scholarship on LGBT rights, this Article challenges the state’s interest in promoting heterosexuality in childhood by articulating a tripartite defense of children’s homosexual speech, status, and conduct. It argues that these three aspects of children’s homosexuality are connected to and protected by the Constitution’s free speech, equal protection, and due process guarantees. When the state attempts to justify policy by claiming that promoting heterosexuality in childhood is a legitimate state interest, it violates at least one if not all of these guarantees. When the policy targets children’s homosexual speech, it is a form of viewpoint discrimination that violates the free speech protections of the First and Fourteenth Amendments. When the policy targets children’s homosexual status, it is a form of animus against lesbian, gay, and bisexual people that violates the equal protection guarantees of the Fifth and Fourteenth Amendments. When the policy targets children’s homosexual relationships, it is a form of moral disapproval of homosexual conduct that violates the due process protections of the Fifth and Fourteenth Amendments. Taken together, these constitutional guarantees require the state to maintain a neutral stance with respect to the sexual orientation of children’s speech, status, and † Associate Professor of Law, University of Utah S.J. Quinney College of Law. Early drafts of this Article were presented at the 2011 meeting of the Association of American Law Schools, the 2012 meeting of the Law & Society Association, the 2011 Williams Institute Annual Update, and a 2011 conference on LGBT Identity and the Law at Loyola Law School. My research has benefitted from the helpful insights of Carlos Ball, Luke Boso, Michael Boucai, Teneille Brown, Paul Cassell, Charlton Copeland, Lisa Diamond, Elizabeth Emens, David Halperin, David Huebner, Laura Kessler, Terry Kogan, Shannon Minter, Douglas NeJaime, Gowri Ramachandran, Edward Stein, Kathryn Bond Stockton, and Mateo Taussig-Rubbo. I am grateful to Lenora Babb, Becky Dustin, Bret Evans, Felicity Murphy, Zaven Sargsian, Amy Shewan, and Erika Skougard for research assistance. 425 ROSKY.35.2 (Do Not Delete) 12/17/2013 9:45 AM 426 CARDOZO LAW REVIEW [Vol. 35:425 conduct. In doing so, they guarantee every child’s equal liberty to be straight or queer. After developing a similar critique of the state’s interest in promoting gender conformity during childhood, this Article concludes by exploring the theoretical advantages, limitations, and implications of this constitutional framework. Drawing on one of queer theory’s foundational texts, it argues that the paradigm of No Promo Hetero is more universal than traditional identity claims, yet more liberal than traditional diversity claims. By proceeding from premises that are both liberal and queer, this Article makes a case for the liberation of all children’s queerness—as viewpoint, identity, and behavior—within existing paradigms of constitutional law. TABLE OF CONTENTS INTRODUCTION .................................................................................................................427 I. CHILDREN’S HOMOSEXUALITY AS CONSTITUTIONAL RIGHT ................................434 A. The Constitution of Homosexuality ............................................................434 B. Free Speech .....................................................................................................436 C. Equal Protection ............................................................................................444 1. Romer v. Evans: The Anti-Animus Principle ................................444 2. Romer’s Roots: Department of Agriculture v. Moreno and City of Cleburne v. Cleburne Living Center ...................................446 3. Romer Redux: United States v. Windsor ........................................448 4. Animus: The Prevention of Gay People, or a World Without Homosexuals .....................................................................449 5. Nabozny v. Podlesny: Romer for Kids ............................................451 D. Due Process ..................................................................................................453 II. WHAT WINDSOR WROUGHT: UNLIMITING ROMER AND LAWRENCE....................458 A. Unlimiting Romer ......................................................................................459 B. Unlimiting Lawrence .................................................................................460 C. What Windsor Wrought ...........................................................................462 III. CONSTITUTIONAL CONFLATIONS: DEFENDING CHILDREN’S CONDUCT AS SPEECH, STATUS, AND CONDUCT .............................................................................464 A. First Amendment: Conduct as Speech ......................................................465 B. Equal Protection: Conduct as Status ........................................................469 C. Due Process: Conduct as Conduct .............................................................473 IV. PROMOTING HETEROSEXUALITY IN CHILDHOOD: A MEANS TO AN END? ...........478 A. Back to School: Advocacy of Illegal Conduct, Material and Substantial Interference, and the Heckler’s Veto .......................................479 B. Back to Kansas: Public Health, Procreation, and Parenting ....................480 ROSKY.35.2 (Do Not Delete) 12/17/2013 9:45 AM 2013] NO PROMO HETERO 427 1. Public Health .....................................................................................481 2. Procreation and Parenting ..............................................................483 V. PROMOTING GENDER CONFORMITY IN CHILDHOOD ............................................485 A. The Constitution of Gender Variance ........................................................487 B. Gender Identity and the First Amendment: Gender as Status .................489 C. Gender Roles and the First Amendment: Gender as Viewpoint ..............494 D. Equal Protection: Transgender Status ........................................................498 E. Due Process: Gender-Variant Conduct ......................................................499 VI. THEORIZING CHILDREN’S QUEERNESS .....................................................................500 A. Queering the State: No Promo Hetero ........................................................500 B. Universalism: Beyond Status .......................................................................501 C. Liberalism: Beyond the State .......................................................................503 CONCLUSION......................................................................................................................508 In our democracy . it is not the province of the State, even if it were able to do so, to dictate or even attempt to influence how its citizens should develop their sexual and gender identities. This approach views homosexuality in and of itself as a social harm that must be discouraged, . something that Lawrence specifically proscribes. Judge Rosemary Barkett1 INTRODUCTION This Article challenges one of the oldest axioms of discrimination against lesbian, gay, bisexual, and transgender (LGBT) people—the premise that the state has a legitimate interest in promoting heteronormativity during childhood. It argues that the state may not pursue this policy in childhood for the same reasons that it may not pursue this policy in adulthood: The state’s promotion of heteronormativity is foreclosed by the Constitution’s guarantees of free speech, equal protection, and due process. These doctrines require the state to remain neutral regarding the trajectory of children’s sexual and gender development. Simply put, the state has no legitimate interest in encouraging children to be straight or in discouraging them from being queer. Put differently, this Article argues that every child has a constitutional right to be queer. Like all children’s rights—indeed, like 1 Lofton v. Sec’y of Dep’t of Children & Family Servs., 377 F.3d 1275, 1300 (11th Cir. 2004) (Barkett, J., dissenting from the denial of rehearing en banc) (citing Lawrence v. Texas, 539 U.S. 558, 575, 578 (2003)). ROSKY.35.2 (Do Not Delete) 12/17/2013 9:45 AM 428 CARDOZO LAW REVIEW [Vol. 35:425 all constitutional rights—a child’s right to be queer is not absolute. It must be balanced against a parent’s right to direct the care, custody, and control of her child and the state’s interest in protecting all children’s welfare. But within these parameters, every child has a right to an open future in sexual and gender development—an equal liberty to be straight or queer.2 For a very long time, our legal system has presumed otherwise. In a wide range of settings, officials have justified discrimination against LGBT people by invoking what might be called “the fear of the queer child”3—the premise that the state has a legitimate interest in promoting heteronormativity and discouraging queerness during childhood. The simplest version of this fear is that
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