marriage and the rationality of marriage equality are both economic and noneconomic,69 one
wonders whether the Court would have been moved to reach the same result if the right at issue
were not an economic right (e.g., hospital visitation rights) or if the right at issue had less absolute
economic value (e.g., Social Security survivor benefits).
Discrimination against LGBTQ youth and youth with disability have remarkable
similarities. First, both groups are overrepresented in the foster care system.70 Second, both
groups are more likely to be crime victims.
71 Third, their sexuality is repressed and denied
because persons with disability are often culturally and legally rendered as nonsexual, especially
those with significant disabilities.
72 Likewise, LGBTQ youth face a culture in which ‘no child
can be gay’ is still a commonly-held belief.
73 Fourth, disability and sexual orientation/gender
identity are often viewed as illnesses subject to treatment and recovery notwithstanding that
homosexuality is no longer considered a mental disorder.
74 Some parts of society still consider
being LGBTQ as akin to being a person with a disability, resulting in some LGBTQ being
referred to special education for “treatment,”
75 committed to hospitals or mental institutions76
(including electroconvulsive therapy77) or subjected to disproved and harmful reparative
78 The anger of some in the autism self-advocacy community toward methods to “cure”
autism79 is similar to the anger in the LGBTQ community among those who have survived
69 See, e.g., Patricia A. Cain, Imagine There’s No Marriage, 16 QUINNIPIAC L. REV. 27 (1996).
70 Compare CHILD WELFARE LEAGUE OF AMERICA, supra note 2, at 2 (discussing LGBTQ youth), with Patricia M.
Sullivan & John F. Knutson, Maltreatment and Disabilities: A Population-Based Epidemiological Study, 24 CHILD
ABUSE & NEGLECT 1257 (2000) (discussing children and youth with disabilities).
71 Compare Sullivan & Knutson, supra note 70, at 1265–66 (stating children with disabilities are more than three
times more likely than children without disabilities to be physically or sexually abused), and Thomas A. Mayes,
Persons with Autism and Criminal Justice: Core Concepts and Leading Cases, 5 J. POSITIVE BEHAV.
INTERVENTIONS 92 (2003) (discussing higher risks of victimization of persons with autism), with Emily F. Rothman
et al., The Prevalence of Sexual Assault Against People Who Identify As Gay, Lesbian, or Bisexual in the United
States: A Systematic Review, 12 TRAUMA VIOLENCE & ABUSE 55 (2011) (based on a review of seventy-one peer-reviewed studies, concluding that sexual assault against LGB persons is prevalent and likely higher than that rate of
sexual assault against straight individuals), and DOUG MEYER, VIOLENCE AGAINST QUEER PEOPLE: RACE, CLASS,
GENDER, AND THE PERSISTENCE OF ANTI-LGBT DISCRIMINATION (2015) (discussing anti-queer violence through
the multiple lenses of race, class, and gender).
72 Holly Ann Wade, Discrimination, Sexuality and People with Significant Disabilities: Issues of Access and the
Right to Sexual Expression in the United States, 22 DISABILITY STUD. Q. 9 (2002).
73 See generally Ruskola, supra note 2 (discussing the social construct that persons under the age of majority cannot
74 DUDLEY CLENDINEN & ADAM NAGORNY, OUT FOR GOOD: THE STRUGGLE TO BUILD A GAY RIGHTS MOVEMENT
IN AMERICA 199–217 (1999) (discussing the successful effort to remove “homosexuality” from the Diagnostic and
Statistical Manual, the American Psychiatric Association’s catalogue of “mental disorders”).
75 Mayes, supra note 2, at 663.
76 Id. See also Miye A. Goishe, Unlocking the Closet Door: Protecting Children from Involuntary Civil Commitment
Because of their Sexual Orientation, 48 HASTINGS L.J. 1137, 1138 (1997).
77 Catherine A. Lugg, No Trespassing: U.S. Public Schools and the Border of Institutional Homophobia, at 14, Paper
Presented at the Annual Convention of the University Council for Educational Administration (Oct. 26–28, 1997).
78 CHILD WELFARE LEAGUE OF AMERICA, supra note 2, at 4; GETTING DOWN TO BASICS, supra note 1, at 32–33.
79 See, e.g., Amy Harmon, How About Not “Curing” Us, Some Autistics Are Pleading, N. Y. TIMES (Dec. 20, 2004),