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.

Theorists who contend that tort is designed to do justice cannot explain strict liability. The strict sector plagues these scholars because it extracts payment from defendants who have acted reasonably and are therefore considered innocent. If tort is about wronging and recourse, then strict liability makes no sense. Stymied, justice theorists have ceded the sector to economically minded counterparts who are concerned primarily with efficient market outcomes. As this theory has taken hold, some have declared strict liability “dead.” This Article offers a justice theory of the interpersonal wrong that permits liability in the absence of traditional fault—namely, the delegation of relational labor to inanimate, care-insensitive instrumentalities. These delegations may be efficient and low risk, but they are genuine wrongs because they treat relational counterparts as unworthy of authentic human care. This theory not only explains long-standing strict liability for activities like blasting, but it also has the power to address the modern wrong of injury-by-algorithm. Indeed, as the regulatory state permits market scions to replace real relationships with artificially intelligent ones, tort may be the only body of law able to guarantee that technology serves society and not the opposite.

Specialized criminal courts were created in an effort to offer nonpunitive responses to the commission of crime. The promise of these courts was that they would remove select populations from the traditional legal system and offer them something different, and perhaps better, than mere punishment and incapacitation. Utilizing the framework of procedural fairness, this Article suggests that the presence of discretionary bias in the selection process for specialized courts threatens their continued legitimacy. Because specialized courts rely upon the freely-given cooperation of outside criminal legal stakeholders—such as social service providers and community organizations—in order to function, the courts must be perceived as a legitimate enterprise operating in an unbiased manner. Unless these courts begin to impose transparent, consistent, and procedurally just criteria for defendant selection, the entire project may cease to exist.

When one’s home is stripped away, the consequences are dire. Housing insecurity can trigger instability in every aspect of a person’s life—employment, physical and emotional health, family and personal relationships, and financial security, among a cascade of others. And because people who rely on informal housing are disproportionately low-wealth people of color, the lack of protection following an extrajudicial ouster can be particularly bleak. For some, that displacement is a pipeline to homelessness. Being relegated to the streets means disparate exposure to illness, substance use, and indiscriminate policing. Homeless shelters—notoriously crowded and unsafe—are a far cry from a baseline of secure, dignified housing that should be a fundamental guarantee to every human being in a civilized society. The exclusion of such broad swaths of residential occupants ignores the realities of housing in the modern urban economy. The law can and should prevent the needless human suffering that necessarily flows from a self-help eviction. To date, however, jurisdictions across the country continue to permit landlords to weaponize extrajudicial evictions as a tool to oust non-tenant residential occupants from their homes.