Invisible to the law: Queer identity in Romer v. Evans

The case of Romer v. Evans (1996) is examined through close textual analysis to explicate the ways in which the language of the United States court system frames sexual preference and sexual orientation in favor of heteronormativity. The language of the Supreme Court, as well as the language of local courts, excludes the sexual orientations of gays, lesbians, bisexuals, transgender, and queer persons (GLBTQ) while simultaneously giving preference to the sexual identity of homosexual persons, recognized secondarily to heterosexual identities. Despite the pro-queer rights ruling in Romer, Justice Kennedy’s majority opinion and Justice Scalia’s dissenting opinion construct a negative queer identity. Justice Kennedy’s opinion, in an initial reading, seems to support queer persons, however, a close reading reveals his exclusion of certain sexual minorities from the legal precedent and establishes instances in which the State can harm queer persons. Justice Scalia’s opinion creates queer identity as a sin, which breaks both secular and religious covenants and risks the destruction of United States’ culture; thus utilizing the rhetorical tool of the jeremiad. As a result of excluding queer persons, implications include the dehumanization of queer individuals, the lack of a coherent rhetorical strategy for the queer rights movement, and a reinforcement of the power hierarchy between heterosexual persons and queer individuals.