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from Political News
Law School Student Argues Against 'Minor Exception' In 'Lawrence v. Texas'
January 23, 2006 -
Joseph J. Wardenski, a law school student at Northwestern University School of
Law, argues in the Journal of Criminal Law and Criminology* (JCLC, June 2005)
that the Lawrence v. Texas sodomy decision must be interpreted to include rights
for teenage homosexuals.
According to Wardenski, while the Lawrence decision is considered a "significant
legal advance" in the quest for equality for gays, lesbians, and transgendered
individuals, it has been wrongly interpreted to exclude "minor" gays from full
legal equality.
Wardenski points to Justice Kennedy's statement in Lawrence that says: "the
present case does not involve minors." Wardenski believes this should not be
interpreted to exclude gay teens from full equality, but refers instead to adult
sex offenders who may prey upon gay teens and use Lawrence in justifying their
actions.
The author argues that Lawrence must be interpreted to "render any
discrimination against youth on the basis of sexual orientation constitutionally
suspect."
He asserts that Lawrence found that sexual orientation forms the core of a
person's identity; that gay people are a distinct class with constitutional
interests; that discrimination against gays' basic human liberties is not
permissible; and that traditional morality "cannot trump these basic liberty
interests." Lawrence also lifted "the presumption of criminality" and eliminated
a significant basis for state-enforced discrimination" against gays.
Wardenski is concerned that a misinterpreting of Lawrence on the issue of sexual
liberty and gay teens may be "used to discriminate against LGBT teenagers and to
prevent them from forming critical support networks." He observes: "There can be
no rational basis for 'protecting' youth from themselves, when such protections
actually cause them more harm than good."
The author believes that Lawrence can be used effectively for force courts to
consider whether "anti-gay actions are rooted in animus and societal prejudice"
and "justifies increased judicial scrutiny of policies and practices that treat
LGBT youth in child welfare and juvenile justice facilities differently." He is
optimistic that Lawrence can also be used to justify the placing of troubled gay
teens in gay foster parenting homes.
*This article is not yet available on the JCLC web site, but can be accessed
through Lexis or High Beam Research (both fee-based research databases).
Additional Reading: Adolescent Homosexuality; Working with Teenagers; 'The New
Gay Teenager'
Updated: 8 February 2008
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