LGBTQ Youth and the Promise of the Kennedy Quartet

57 Pages Posted: 22 Jul 2021 Last revised: 8 Oct 2021

See all articles by Michael J. Higdon

Michael J. Higdon

University of Tennessee College of Law

Date Written: July 19, 2021

Abstract

The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to those sexual minorities who are still children. In so doing, they have passed laws that, among other things, punish adolescent sexual activity more harshly when it involves two people of the same sex, prohibit discussions in public schools that portray homosexuality in anything other than a negative light, and deny transgender youth the ability to compete in school athletics or use restrooms that correspond to their gender identity. These laws are harmful enough in their own right but are particularly pernicious in light of the harms those children already face simply by virtue of being a sexual minority in a homophobic society. Looking at the Kennedy Quartet in conjunction with the Supreme Court’s jurisprudence regarding the constitutional rights of children, this Article argues that such laws are unconstitutional. It does so by, first, challenging the argument that the Kennedy Quartet pertains only to adults. Second, and more importantly, this Article then distills from those cases three key protections applicable to the entire LGBTQ community—children included—that these current laws violate. The hope is that this analysis will assist judges, legislators, and policy makers alike as they look for ways to put an end to this wave of discriminatory laws and, in their place, lobby for more inclusive legislation.

Keywords: law & sexuality, juvenile law

Suggested Citation

Higdon, Michael J., LGBTQ Youth and the Promise of the Kennedy Quartet (July 19, 2021). Cardozo Law Review, Forthcoming, University of Tennessee Legal Studies Research Paper No. 417, Available at SSRN: https://ssrn.com/abstract=3889501 or http://dx.doi.org/10.2139/ssrn.3889501

Michael J. Higdon (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

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