Trump-appointed judge assigned to a ‘Don’t Say Gay’ challenge once defended Florida's same-sex marriage ban

On Monday, March 28, far-right Gov. Ron DeSantis signed the controversial Florida House Bill 1557, a.k.a., the “Don’t Say Gay” bill, into law — and three days later, on March 31, an gay rights advocates filed a lawsuit against the State of Florida. But journalist Mark Joseph Stern, in an article published by Slate the day the lawsuit was filed, delivers some bad news about the lawsuit: the federal judge who has been assigned to the case, U.S. District Judge Allen Winsor, is a Donald Trump appointee who once railed against same-sex marriage.

In the lawsuit, the plaintiffs argue that SB 1557 “would deny to an entire generation that LGBTQ people exist and have equal dignity,” adding, “This effort to control young minds through state censorship — and to demean LGBTQ lives by denying their reality — is a grave abuse of power.”

Stern explains, “It’s a strong argument, put forth by some of the nation’s top civil rights lawyers. But the lawsuit almost immediately hit a snag: It has been assigned to U.S. District Judge Allen Winsor, a Donald Trump appointee who is perhaps best known for defending Florida’s defunct ban on same-sex marriage. This assignment illustrates how Trump and Republicans stacked the deck against LGBTQ equality for decades to come by flooding the courts with reactionaries in just four years.”

Critics of HB 1557 have been attacking it as the “Don’t Say Gay” bill because it is obviously designed to intimidate Florida teachers and discourage them from saying anything gay-related in the classroom.

“The bigotry that drove HB 1557 to passage should be clear to anyone who simply reads the text of the bill,” Stern notes. “By its plain terms, the measure strictly limits ‘instruction’ on ‘sexual orientation or gender identity’ in every grade. This ban is absolute in Grades K–3; in Grades 4–12, all such ‘instruction’ must be ‘age appropriate or developmentally appropriate’ — terms that are not defined.”

Stern continues, “The law allows parents to sue school districts for alleged violations, subjecting purported offenders to long, intrusive investigations. When parents win, they collect both monetary damages and attorneys’ fees. If schools win, they collect nothing. The obvious purpose of the bill is to chill a maximum amount of speech by frightening teachers out of discussing LGBTQ families, rights, or history in the classroom. One additional nasty effect is that it will prevent LGBTQ teachers and students from discussing the mere existence of their own families without fear of a lawsuit.”

Florida’s ban on same-sex marriage ended in 2015 with the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, which, in essence, made same-sex marriage the law of the land. Then-Justice Anthony Kennedy, a right-wing Ronald Reagan appointee, was part of the 5-4 majority in that decision. But while Kennedy had a major libertarian streak during his decades on the High Court, Winsor is much more of a social conservative — and he vigorously defended Florida’s ban on same-sex marriage before the Obergefell decision was handed down.

“As solicitor general of Florida…. Winsor fought to preserve the state’s ban on same-sex marriage,” Stern notes. “In the process, he persistently belittled same-sex couples and their children as less deserving of rights than heterosexual families. Winsor’s 2014 briefs argued that outlawing same-sex marriage would promote ‘responsible procreation and childrearing’ because ‘heterosexual couples are the only couples who can produce biological offspring.’”

Stern continues, “Allowing same-sex couples to marry, he asserted, would disrupt ‘family continuity and stability’ by diminishing ‘the likelihood that children will be born to and raised by the mothers and fathers who produced them in stable and enduring family units.’ Excluding same-sex couples from marriage would preserve the primacy of ‘biological offspring’ over adopted children — which was, allegedly, an important state interest.”

Ending Florida’s ban on same-sex marriage, Winsor believed, would “impose significant public harm.” So obviously, Obergefell was not a decision that he welcomed. In 2015, Obergefell not only struck down Florida’s same-sex marriage ban, but also, similar bans all over the United States.

During his years in the White House, Stern notes, Trump made a point of nominating “homophobic extremists” to the lower federal courts — and Winsor was only one example.

“Like Winsor, many of these individuals defended state bans on same-sex couples’ right to marry and have children,” Stern writes. “Others supported legislation designed to denigrate LGBTQ families while serving in elected office…. Trump’s strategy was clear: Seed the federal judiciary with homophobic extremists who would roll back constitutional equality for LGBTQ people for the next half-century.”