Scott Skinner-Thompson (University of Colorado Law School) has posted The Court’s Queer Erasure on SSRN. Here is the abstract:
This Article examines the treatment of LGBTQ lives by the Roberts Court. That examination reveals not just predominately anti-LGBTQ outcomes, but how the Court’s deep skepticism regarding the validity of queer identities has fueled several ideological interpretations that threaten not just queer lives, but the rights of many. This new doctrine, paradoxically built on the backs of queer people while at the same time ignoring their lives, includes at least three tenets: (1) a grossly broad (and yet inconsistently applied) interpretation of First Amendment Free Speech and Free Exercise doctrine, (2) an impoverished and formalistic view of equality law, and (3) the diminution of substantive due process fundamental rights for those who do not adhere to the Court’s gender normative worldview.
But in addition to analyzing how the lives of queer folk have been a vehicle for the Court to advance these ideological changes in constitutional doctrine, this Article also highlights the ways in which the Court’s analysis and rhetoric regarding LGBTQ people is deployed, at times, to delegitimize and deny queer existence—existence which ought to be celebrated, not stigmatized. This dehumanization and erasure occur along several reinforcing axes, including (a) substantive doctrinal erasure (that is, anti-LGBTQ outcomes that evince differential judicial treatment of LGBTQ people compared to other groups), (b) discursive erasure (that is, language that denies or diminishes the existence of queer people and the rich texture of their lives), (c) procedural erasure (aggressive use of the shadow docket and standing doctrine to consider LGBTQ rights cases and then oppress LGBTQ people).
In short, this failure to see LGBTQ people as they are—people—in turn has served as one of the underlying rationales justifying some of the Court’s regressive doctrinal turns. This Article tracks the ways in which queer lives have been used as tools to fuel the Court’s regressive doctrinal turns, while in the process documenting and theorizing the many ways the Court has erased and dehumanized queer existence.
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