State Action that Penalizes Children as Evidence of a Desire to Harm Politically Unpopular Parents

19 Pages Posted: 12 Jul 2018

See all articles by Catherine E. Smith

Catherine E. Smith

University of Denver Sturm College of Law

Date Written: July 11, 2018

Abstract

In four cases in the last forty years, the United States Supreme Court has invoked the animus doctrine to strike down government practices that target politically unpopular groups. These cases are notable because they each recognized an end-run around the tiers of scrutiny and extended constitutional protections to unpopular groups – hippies, persons with mental disabilities, and LGBT persons – with a record of limited success under the classic equal protection framework. In each case, the Court struck down the law in question despite the groups’ ‘non-suspect’ status because “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate interest.”

This article is the first to argue that when the government denies children basic rights because of its disdain for their parents, such state action should be recognized as evidence of a bare desire to harm the children’s politically unpopular parents (e.g., single or unmarried parents, immigrant parents, LGBT parents, incarcerated parents). State action that penalizes children in order to control or punish adults should be considered an illegitimate means to achieve an end, antithetical to equal protection values, and a harbinger of anti-parent animus.

Suggested Citation

Smith, Catherine E., State Action that Penalizes Children as Evidence of a Desire to Harm Politically Unpopular Parents (July 11, 2018). Suffolk University Law Review, Vol. 51, No. 439, 2018; U Denver Legal Studies Research Paper No. 18-21. Available at SSRN: https://ssrn.com/abstract=3212295

Catherine E. Smith (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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