“Congress in December passed the Respect for Marriage Act, granting formal federal recognition to same-sex and interracial marriages. President Joe Biden quickly signed the bill into law.
While both types of marriages were already protected under federal law, that protection was afforded by the Supreme Court, not Congress. In the wake of Dobbs v. Jackson Women’s Health Organization, the 2022 case in which the Supreme Court overturned the federal abortion protection established by its 1973 decision in Roe v. Wade, supporters of gay marriage worried that the Court might also revisit that subject.”
“The Respect for Marriage Act does not require states to legalize same-sex marriage. Many states still have bans on the books. If the Supreme Court ever decides to overturn Obergefell v. Hodges, the 2015 decision mandating legal recognition of gay marriages, those bans could take effect again.
The new law does require states to recognize same-sex marriages legally performed in other states. While that provision may seem contrary to federalist principles, states historically have recognized marriages performed in other states with different rules (regarding minimum ages or marriages of cousins, for example). Although the courts have not yet resolved the issue, such accommodation is arguably mandatory under the Constitution’s requirement that “full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
The Respect for Marriage Act says houses of worship, religious groups, and faith-based social agencies “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” It adds that “any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.””
“Conservative government scolds in Florida are making good on a Christmas threat against an Orlando performance venue and are trying to revoke its liquor license because it let minors attend a bawdy drag show with their parents.
Florida’s Department of Business and Professional Regulation filed an administrative complaint Friday against the Orlando Philharmonic Plaza Foundation, which operates The Plaza Live theater in Orlando. In December, The Plaza Live hosted A Drag Queen Christmas, a touring stage show of risqué drag performances with holiday themes.”
“For naughty Christmas lyrics, the state is threatening a business’s liquor license. The complaint charges six counts of violating state indecency regulations, all based on allowing children to attend.
The scant photo evidence the state includes in the complaint further substantiates the claim that the war on drag queens is a politically driven moral panic. To the extent that the show is indeed sexual, as with any other form of entertainment with adult content, parents and venues are well-equipped to decide for themselves whether to bring their children. It’s not a role the state should be deciding, and in so many other cases, the state does not.
Despite making a big deal about supporting parents’ rights in education, Gov. Ron DeSantis does not think parents should have the right to decide what kind of entertainment their children should consume.”
“Of course, Florida Gov. Ron DeSantis and his administration would contribute to the latest Christmas-themed targeting of drag queens as some existential threat.
The state’s Department of Business and Professional Regulation sent a letter..to the Orlando Philharmonic Plaza Foundation in Orlando, Florida, because their venue was hosting A Drag Queen Christmas, a touring stage production crossing the country that’s been around for eight years.
The letter warns the venue that they have “reason to believe that this drag show is of a sexual nature, involving the exposure or exhibition of sexual organs, simulated sexual activity, and/or the sexualization of children’s stories.” The department says it has “become aware” that the show has been marketed to and attended by children. The agency warns that the drag show may be considered a “public nuisance” if minors are allowed to attend, provided that any of these claims of sexual activity are true. Thus, the venue could have its license revoked. “In short, if you allow children to attend the Drag Fans drag show at your facility,” the letter warns, “you are putting your license in jeopardy.” The letter concludes that if the venue allows minors in at all, “the Department will take any and all actions available to make sure you do not pose a threat to minors in the future.” (Emphasis added.)
Note that this letter doesn’t actually say that there is any nudity or simulated sexual activity at this show, only that the department believes there is. It probably consulted this Twitter thread by Tayler Hansen, who provides images and clips of the show from its stop in Austin, Texas. A Drag Queen Christmas is a pretty raunchy show in the way that’s familiar to anybody who has watched drag performances. But the only “nudity” found in Hansen’s clips and images is a pair of absolutely fake boobs being worn by a drag queen. There is a lot of overtly sexualized behavior and gyrating from people who are not actually naked or having sex.
Essentially, this is a Madonna concert, circa her Blonde Ambition World Tour days. Madonna, of course, is famously beloved by gay men and drag queens in particular for her wild looks and deliberately sexualized persona. She was threatened with arrest in Toronto back in 1990 for simulating masturbation during her live performance of “Like a Virgin,” though police eventually backed down. There was a moral panic then that children exposed to Madonna’s antics were being sexualized at a young age. Funny how some things don’t change.
If I had small children, I probably would not take them to this show. But what’s clear from Hansen’s clips is that several parents did, voluntarily, and seemed to know that this was going to happen. The website Florida Politics notes that while the company says that “all ages” are welcome at the show, it also notes that local regulations may vary. At some venues, minors must be accompanied by an adult in order to attend (which was the case at the Austin show in Hansen’s clips). At others, minors are banned entirely.
It doesn’t appear that there’s actual nudity in the show. And the amount of sexualization would put it at maybe an R rating if it were a movie. What we have here is a lot of screaming and politicization about families making entertainment decisions other adults do not like. This is, flat out, a moral panic.”
“Politicians are happy to sow fear in others in order to advance their careers. DeSantis has made it clear that he’s happy to perpetuate the culture war, treating those with progressive politics as public enemies and fighting against the “woke” crowd, going so far as to endorse and encourage laws that clearly violate the First Amendment, all for the purpose of cultivating and benefitting from the moral panic.”
“Madonna and the moral panics of pop and rap music of the 1980s and early 1990s come to mind. Florida is the state that attempted to ban 2 Live Crew from selling a rap album by deeming it obscene, until the group won the battle in court. When we look back at those days, it may all seem absurd. Gen Xers did not grow up to be any more sexualized or out-of-control than the baby boomers.
Claiming that drag shows are different is a subjective evaluation based on how a person feels about exposure to drag performances. It is an attempt to force one group of people’s parental choices on the collective. And the mindless tossing around of the word “groomer” is just an epithet designed to shut down opposition on the belief that nobody wants to be accused of supporting child sexual abuse. It’s a reminder of back during the 1970s through the 1990s when anybody who was not heterosexual was regularly accused of trying to recruit kids. Moral panics about gay people interacting with children are hardly new.
We have laws about minors and nudity and sexually explicit live performances. And we have parents to make decisions for stuff that falls just on the legal side of that line. That’s how it has been for the longest of times, and drag queens don’t change that calculus. If you don’t want your children to see this stuff, don’t take them. Leave everybody else alone.”
“LGBTQ advocates chafe at the fact that the bill does not truly codify a national right to same-sex marriage, instead repealing the Defense of Marriage Act and requiring all states to recognize marriages performed in other states should the high court reverse its earlier ruling. Supportive Republicans may not have gone further than they did, and the bill only squeaked by Tuesday, 61-36.”
“The year was 1952, and Sen. Clyde R. Hoey (D–N.C.) was investigating how many gay people worked for the federal government and whether these workers were a security threat. In what would eventually be called the Lavender Scare, the government launched a purge of gay and lesbian employees, aided by a 1953 executive order by President Dwight Eisenhower. The witch hunts soon spilled over into the private sector, as workers lost jobs that required security clearances.”
“The year was 2004, and one state—Massachusetts—had started legally recognizing same-sex marriages. President George W. Bush, facing re-election, called for Congress to pass a constitutional amendment “defining and protecting marriage as a union of a man and a woman as husband and wife.” The Republican Party added the idea to its platform. While the national amendment was never adopted, 11 states passed their own constitutional bans against recognition that fall.”
“DeSantis and allied lawmakers have barred Florida educators from any instruction on sexual orientation and gender identity with young students at all, and they have restricted how teachers can approach those subjects in the higher grades. Parents are authorized to seek financial damages from school districts if they believe teachers or staff are discussing LGBT topics inappropriately—and what’s inappropriate is defined so vaguely that all sorts of unobjectionable conversations could prompt a suit. Some Florida schools have even started removing children’s books like I Am Jazz from their libraries because they featured trans characters. It’s not clear that the law actually requires such removals, but the possibility of lawsuits encourages districts to interpret the restrictions broadly.
Meanwhile, politicians in several states have introduced aggressive laws that attempt to stop minors from getting any sort of trans-affirmative medical treatment for gender dysphoria, even when parents and doctors support it. In Texas, Attorney General Ken Paxton has declared that giving minors any such treatment counts as “child abuse” and Gov. Greg Abbott has ordered officials to start investigating families. One of the first targets investigated was a parent who worked for the state’s own Department of Family and Protective Services. (Following a lawsuit by the American Civil Liberties Union, a Texas court has put Abbott’s order on temporary hold.)
Contrary to their supporters’ rhetoric, these laws aren’t about preserving parents’ right to shape their children’s educations or protecting vulnerable young people from threats. After all, if you think families should make decisions about children’s education and care, that means accepting that families will make different decisions. Rules like these don’t establish a neutral position. They let one group of Americans tell another group of Americans that they don’t get a say in what their kids are taught or what treatments they can pursue.”
“The existence of detransitioners does not discredit trans-affirming treatments. The dramatically increased acceptance of gay and trans people in the U.S. has undoubtedly made young people more comfortable with questioning their gender identities. And the science of identifying gender dysphoria is complex and still being heavily researched, so it is inevitable that a certain number of people who believe they are trans might eventually decide otherwise and have regrets. (A survey from 2015 of more than 27,000 transgender Americans found that 8 percent had at least temporarily detransitioned at some point. Just 0.4 percent of all those surveyed had done so because they had concluded that they were not transgender after all, as opposed to stopping because of pressure from others, because they found the process to be too hard, or because of harassment.)
None of that justifies political intervention, even when we’re talking about minors. If you doubt that, consider the other optional surgeries that young people pursue. According to 2020 data from the American Society of Plastic Surgeons, doctors performed more than 87,000 cosmetic surgical procedures on teenagers.
It’s considered controversial in some quarters to let teens get surgery to change their appearance. Certainly some adults would love for legislators to pass laws stopping minors from getting many of these procedures. But neither federal nor state governments have done so. As a culture, we accept that decisions about these surgeries are properly made by the teens, consenting parents, and medical professionals. You may think these are reckless decisions that the teens may someday regret, and probably some of them do. Some of them might go wrong, might not be as beautiful or as affirming as the teens hoped. But that isn’t our decision to make, and embracing liberty means accepting that people will make decisions that we might not choose for ourselves. (And if the doctor commits actual malpractice, there are civil courts to resolve that.)
That doesn’t change when the surgeries involve teen genitals rather than teen noses. Critics of these treatments believe youths are permanently disfiguring their bodies, but supporters retort that denying trans kids the treatments they want (not all of which are surgical) can lead to worsening mental health, even suicide. Either way, the stakes are higher—and that makes it more important that families be able to make these decisions without political interference.”
“The state is an expression of political will, not ethical medicine. The attorney general of Texas has no idea what treatments are best for kids who believe they may be transgender, but he has the power to investigate and jail parents for making decisions the government deems to be “abusive.” And we have a lengthy history of child welfare agencies harassing families for behavior that offends officials but does not cause actual harm to children.”
“Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.”
“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”
“Florida’s education law is couched in the language of parental rights and uses vague language to implicitly threaten LGBTQ teachers and allies with lawsuits. Though supporters had said the law bans inappropriate conversations about sexual activity with young students, the text never explicitly references discussions of sex — only explicitly forbidding conversations about “sexual orientation or gender identity.” The ban applies from kindergarten through third grade but leaves an opening for “age-appropriate” restrictions beyond those grades, while also not defining what “age-appropriate” means.
The legislation never uses the words “gay” or “trans,” but advocates argue that queer and trans Americans would be the primary targets of lawsuits by parents and officials behind the restrictions. Echoing the model of Texas’s abortion ban, Florida’s law deputizes parents as watchdogs, providing a path through the courts to punish schools and staff that violate the statute.
Legislatures in Alabama, Ohio, and Louisiana have since advanced similar proposals; Texas’s lieutenant governor is looking at introducing a bill when its next legislative session starts, and lawmakers in six other states, mostly in the South, have supported iterations of restrictions on LGBTQ identity in schools.
Some of these proposals are more explicit than Florida’s — Tennessee’s proposal seeks to ban books or material that support or promote LGBTQ “issues or lifestyle” altogether — but all offer a window into how social conservatives see opportunities to roll back protections for queer and trans people: score victories in the courts and make the cultural fight more extreme.”
“Radical right-wing activists and commentators in recent weeks have been making literal accusations of pedophilia (in a callback to a trope from the 1970s and earlier) and grooming (which in its true sense means to “gain access to a potential victim, coerce them to agree to the abuse, and reduce the risk of being caught,” according to the Rape, Abuse, and Incest National Network). But they’ve also been increasingly using “grooming” as a casual insult to try to create a vague link between all LGBTQ people and cases of child abuse.
What started on the fringes, with conservative activists riding the coattails of last year’s anti-critical race theory moral panic, crossed over into mainstream media during the Supreme Court confirmation hearings for Judge Ketanji Brown Jackson last month. Sens. Josh Hawley (R-MO), Ted Cruz (R-TX), and Marsha Blackburn (R-TN) questioned the future justice’s thinking on gender, child abuse, and race. As Georgetown professor Don Moynihan wrote about Hawley’s line of attack, the point was “to create an association between Jackson and this broader trope” of child predators running rampant in public institutions. That spawned a universe of outrage in conservative media, further buoying the legislative action underway in Republican states.”
““It’s very frustrating to see that we are having the same fight over and over again … but I believe that these folks are desperate. They have lost every fight they have picked on LGBT issues. They lost on trying to criminalize sodomy, they lost on marriage equality, they lost on bathroom bills, they lost on wedding services refusal — and we’re at 75 to 80 percent support for nondiscrimination laws,” she said.
Some of the loudest supporters of this effort have admitted this: “The alternative to the culture war is a culture surrender. There is no neutral option,” one reads. “The right needs to go scorched earth with ‘groomer,’” says another. “We are building a new model of conservative activism” with the grooming messaging, argues Christopher Rufo, a leading anti-critical race theory activist.
The rhetoric complements the institutional work that conservative think tanks are doing in pushing these bills. Lawmakers in these states have consulted organizations like the Alliance Defending Freedom, the Heritage Foundation, and American Principles Project in crafting proposals, Vice reported. (The Alliance Defending Freedom confirmed its involvement in a statement to Vox.) The progressive advocates I spoke with told me they see this feedback loop among radical activists, lawmakers, and think tanks as part of a more desperate ploy to use transgender people as a wedge issue to open the door to more mainstream attacks on trans and queer people in public life.”
“”They pick on trans kids in the first place, because there are lots of well-meaning people who don’t totally understand what it means to be trans.””