Lawrence Meets Libel: Squaring Constitutional Norms with Sexual-Orientation Defamation
122 Yale L.J. Online 125 (2012)
17 Pages Posted: 6 Sep 2014
Date Written: November 1, 2012
In early 2012, lawmakers in Georgia introduced legislation to codify false imputations of homosexuality as per se defamation, around the same time that they considered enacting LGBT employment-nondiscrimination protections. In numerous jurisdictions, false allegations of nonheterosexuality are still actionable. In those states, there is no shortage of plaintiffs ready and willing to file sexual-orientation defamation claims, including high-profile celebrities.
Those cases suggest that, social progress for LGBT people notwithstanding, plaintiffs throughout the country will continue to bring sexual-orientation defamation suits unless judges or legislators prohibit them. But in jurisdictions where judges and legislators view LGBT people unfavorably, common law reform may be years away. In these places, public-policy rationales and arguments that allegations of homosexuality are not defamatory will likely fall on deaf ears. Scholars, unfortunately, have overlooked the viable alternative of launching legislative and constitutional challenges.
While defamation law functions as a legitimate governmental mechanism for vindicating harm to one’s reputation, it cannot constitutionally do so if it irrationally intertwines state action with class-based animus. As this Essay explains, recent sexual-orientation jurisprudence — Romer v. Evans and Lawrence v. Texas, taken together — stands for the clear proposition that government-backed stigmatization of gay and lesbian people is inconsistent with the Due Process Clause of the Fourteenth Amendment.
Keywords: defamation, lgbt rights, torts, sexual orientation, race and the law, common law
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