Do You Like Girls? –A Backlash to Obergefell: The Legal Challenge to Florida House Bill 1557

-- By SamuelPittman - 06 Apr 2023

No Substantial Federal Question

I remember being outed in front of my entire sixth grade math class. My math teacher had the audacity to turn to me in front of the class and ask if I “liked girls.” The sixth-grade version of myself knew truth but ran with the lie. That lasted for about three more years.

Today, I have no shame in my identity. With this pride comes the reckoning of the significant historical consequences the law has specifically had on LGBTQ+ community.

While I grew up in a pre-Obergefell world, the history of the same-sex marriage movement is indicted in the history of the U.S. Supreme Court.

In the span of fifty-one years, the Supreme Court went from finding no “substantial federal question” raised when the state of Minnesota prohibited the marriage between two men (Baker v. Nelson) to finding a ban on federal recognition of same-sex couples as unconstitutional (United States v. Windsor).

The last fifty-one years are only a tiny fraction illustrating the shift in judicial attitude regarding the same-sex marriage movement. But I cannot help but feel concerned with the rise in anti-LGBTQ+ legislation we see today.

I Thought Obergefell Fixed Everything

I remember watching the live news footage of the news interns running down the steps of the Supreme Court. The Obergefell decision felt like such a victory. It was and still is a historical landmark in the progress the United States has come in recognizing marriage equality.

The Due Process Clause of the Fourteenth Amendment guarantees right to marry as one of the fundamental liberties it protects. End of story, right? Absolutely not.

LGBTQ+ rights in the year of 2023 would alter without the holdings of Obergefell. In a world where Obergefell is taken off the books as law, states then will retain the right to kick in constitutional amendments that would stifle the historical process this country has witnessed regarding marriage equality.

Completing my undergraduate degree in Georgia, it was not uncommon to hear classmates saying that Obergefell redefined marriage. This is the view of Chief Justice Robert’s dissent– the right to marry does not include a right to force a State to change its definition of marriage. I never know what to say to this. On its face, I see it as a resistance to change. It is a resistance to the court giving legal protections to same-sex couples.

Obergefell is queer history. But it is also now the target of very real legal attacks.

Who is Really the One Talking? – House Bill 1557

Republican sponsors of Florida House Bill 1557: Parental Rights in Education, also known as the “Don’t Say Gay” bill, have now ignited a new debate and placed progress at risk.

The Florida governor signed HB 1557 in the name of parental rights. The bill proports an extremely dangerous fiction. It places live restrictions on discussions of sexual orientation and gender identity in schools.

Placing the freedom of speech issue aside for a moment, I have always felt so confused by this. The only people who ever taunted me for being openly gay in high school, were my teachers. My Spanish teacher, the weightlifting coach, and my math teacher, all make up the list of people who made it their objective to tell other students not to associate with me.

The only ones talking about my queerness and pushing it into the spotlight were the adults in the room, the teachers in the building, and it all goes to show that the conversation has already been happening. The governor of Florida ignites homophobic rhetoric wants his constitutes to buy into the fiction that it’s the queer community pushing an agenda onto others. When the only one overreaching is now the State.

The governor of Florida is now acting on behalf of the State to sensor curriculum. H.B. 1557 aims to deter educators from even addressing discussions and support for lesbian, gay, bisexual, and transgender students. H.B. 1557 does not specify what age would be considered appropriate to have conversations regarding gender identity and sexuality.

H.B. 1557 is crafted with dangerously vague language. Provisions in the bill create new liability for school districts. Under H.B. 1557 parents now can sue school districts for damages and attorney’s fees. The bill further creates the fiction that conversations regarding sexuality were so prevalent within primary schools that such legislation was needed.

H.B. 1557 stigmatizes the LBTGQ+ community, invites intolerance, and educators now face punishment if they assure a student, it is okay to be LGBTQ+. What follows? Fear within the queer community that the world is in regress, along with the ripple effect of analogous House Bills being passed in states such as Arizona, Utah, and South Carolina.

State Action in the Spotlight– Creating a Legal Challenge to H.B. 1557

With such a display of State action, I believe that there is a solution to challenging the grounds of H.B. 1557. However, the scope anti-LGBTQ+ legislation is not limited to Florida alone. One of the primary objectives in creating a solution to the parade of anti-LGBTQ+ legislation must be prevention of further harm. A litigation strategy should address how to mitigate the legal repercussions of state House Bills on the progress made in Obergefell. It should also center its focus onto the action of the State.

Queerness has always been around and will not be erased.

Yes, that's right. Indeed, your mode of framing the history makes it a little harder to see that point. Refusal of access to marriage was less of an effort to erase than the laarge-scale use of state violence resulting from the criminalization of "sodomy." So the legal history runs from Bowers v. Hardwick (handed down on the first day I worked there; the dissent Harry Blackmun read from the bench was written by my dear friend and later practice partner Pam Karlan) to Lawrence v. Texas. Just as what is happening in the US at the moment reaches into strata of legal mistreatment to which marriage rights are altogether orthogonal, as you point out. So treating the history a little more broadly might be both more succinct and more insightful.

It's worth your pointing out that the Florida legislation is flatly unconstitutional. There are no conceivable five votes on the Supreme Court for it. Grandstanding in Republican presidential primaries on prohibiting ideas in school demonstrates something about the nature of the political party to whose activists one is appealing, but it is not a program for governing the United States, or even Florida, as a constitutional democracy. This doesn't lessen the significance of your point, but it is important to how your reader understands it.

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