Academic journal article Harvard Law Review

Sexual Orientation & Gender Identity

Academic journal article Harvard Law Review

Sexual Orientation & Gender Identity

Article excerpt



A central feature of the Supreme Court's recent gay rights jurisprudence has been an awareness of--and antagonism toward--government actions fueled by animus toward sexual minorities. While the Court sporadically found animus in decisions predating its gay rights cases, anti-gay animus has played a recurring and pivotal role in the landmark trio of Romer v. Evans, (1) Lawrence v. Texas, (2) and, most recently, United States v. Windsor, (3) helping the Court to invalidate the challenged legislation in each case. When animus provides a lurking explanation for state action, the government's proffered justifications must be all the more compelling to assuage judicial suspicions. Animus has thus proven to be a powerful and nimble trope for framing and assessing negative attitudes toward sexual minorities by the political majority; it gives substance to unspoken, often affective motivations that may otherwise escape constitutional scrutiny, despite their real-world role in driving legislation. Importantly, the Court has analyzed underlying animus without invoking traditional tiered scrutiny or hewing to a specific standard of review, thereby avoiding doctrinal hurdles that may have otherwise frustrated judicial intervention.

Section A of this Chapter tracks the evolution of anti-animus sensibilities leading up to, and then through, the Supreme Court's gay rights jurisprudence, showing that animus-based concerns have been invoked in a variety of constitutional contexts and factual scenarios. This Chapter then proceeds to explore the potential role of animus-centered arguments for the LGBT rights movement going forward; to the extent that animus-centered critiques have been useful and appropriate in adjudicating gay rights disputes, there is potential to apply this analytic trope to other areas of sexual regulation--including issues that do not exclusively affect the LGBT community. Section B of this Chapter attempts one exercise in this vein: it argues that laws criminalizing broad forms of HIV exposure may be uniquely vulnerable to an animus-centered challenge. This section argues that invoking animus may give legal significance to critiques of HIV criminalization that have, so far, been limited to the policy sphere. Using this illustrative example, the Chapter concludes by arguing that animus may provide a maturing LGBT rights movement with a powerful thematic thread for identifying and embracing legal priorities outside of the contemporary mainstream.

A. Invoking Animus: Lessons from Existing Jurisprudence

Early examples of animus-centered jurisprudence can be found in United States Department of Agriculture v. Moreno (4) and City of Cleburne v. Cleburne Living Center, Inc. (5) Moreno involved Congress's 1971 decision to amend the Food Stamp Act of 1964 (6) to exclude households containing unrelated adults from food stamp eligibility. (7) The Court concluded that the "unrelated adults" restriction was little more than a veiled attempt to exclude "hippies" and "hippie communes" from federal benefits. (8) It held that the classification "clearly cannot be sustained by reference to this congressional purpose. For 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 governmental interest." (9) The Court also rejected the government's argument that the exclusion was "rationally related to the clearly legitimate governmental interest in minimizing fraud in the administration of the food stamp program." (10) It noted, as a threshold matter, that prior to the challenged amendment, the statute already contained provisions aimed at preventing fraud. (11) The Court then criticized the classification for being both under- and over-inclusive for vindicating the government's asserted fraud-prevention interests: individuals attempting to defraud the program could easily restructure their living arrangements to remain outside of the "unrelated adults" exception, while many legitimate recipients--like mothers in shared housing arrangements--would be disqualified. …

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