Most American adults still remember the tidal wave of emotion that greeted the U.S. Supreme Court’s decision, nearly 11 years ago, that same-sex couples were entitled to the privileges and protections of marriage. Echoes of that were felt across the nation this week, when the U.S. Supreme Court rejected — without comment — a case that sought to strip those rights away.
This nation has come so far, so fast. There are more than 823,000 legally married same-sex couples nationwide. Nearly 20% of those households are raising at least one minor child. And marriage has been at the forefront of the recognition that LGBTQ+ Americans have achieved.
But there’s an undercurrent of fear to the joy, from those who are struggling to believe that this fundamental right of adults — to love who you love — is truly safe. That trepidation should be particularly potent in a state whose top politicians are leveraging hate and homophobia into weapons of mass distraction. The vast majority of Floridians do not want this state to turn its back on couples who simply wish to live their lives, raise their children and contribute to their communities without the stress of wondering whether it can all be swept away.
Because the brutal truth is this: It can. The case the Supreme Court brushed off last week — brought by a defiant clerk of court in a Kentucky county who refused to register same-sex marriages after the 2015 case Obergefell v. Hodges — is likely just the first.
“We cannot take those protections for granted. Members of this Supreme Court have already told us they are willing to overturn Obergefell. It’s only a matter of time before they do,” said Michigan Attorney General Dana Nessel, who helped litigate the case decided last week. “Today’s victory allows us a reprieve, an opportunity to bring our state Constitution into alignment with the protections our residents are entitled to and have enjoyed for more than a decade. Now is the time to act.”
Floridians, are you listening?
Love and liberty
A brief history of the Obergefell decision, issued in January 2015, is in order.
The outcome was expected. National attitudes about marriage and family were shifting rapidly — and in many states, the laws were keeping pace. In 2004, Massachusetts became the first state to recognize same-sex marriage. By 2014, 70% of states had adopted similar laws. Even states that explicitly restricted marriage to one man and one woman had cobbled together some semblance of rights for gay and lesbian couples in “civil unions.”
The result was an unsustainable patchwork of legalities. In Florida, that raggedness was particularly obvious. Just six years before, voters had passed a particularly cruel ban on same-sex marriage — but as national attitudes rapidly evolved, some counties created domestic-partner registries that gave couples some of the protections and rights of marriage.
Thus, it was possible for a couple to register their union in Daytona Beach and then head to Disney for a celebration and know that their partnership was recognized in both Orange and Volusia counties. But to get there, they’d have to drive through Seminole County — where it was not. As one newly registered couple told the Daytona Beach News-Journal, they were extra-cautious on I-4 around the Sanford and Altamonte Springs exits.
Something had to give. But when the Obergefell decision came down, it turned out to be a far greater gift than many anticipated. The decision, written by Justice Anthony Kennedy, went beyond the dry legalities, issuing a thundering assurance that marriage was a fundamental right, and denying it to same-sex couples was a violation of their right to equal protection under the law. It spoke compellingly of evolving attitudes toward marriage and sexuality — harkening back to eras when women were, legally, subservient to their husbands, and physical intimacy between two people of the same gender was a crime.
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A call to action
In retrospect, it’s clear that Kennedy’s broad pronouncement was written as a bulwark against those who would attempt to undermine its holdings. And it’s one that should have held: Americans are not used to losing fundamental rights, once granted. But the avalanche of assaults on basic liberties proves that safety is an illusion. The Supreme Court’s 2022 decision, unspooling 50 years of protection for women’s reproductive freedom by striking down Roe v. Wade, was quickly followed by confirmation that the court’s conservative majority was ready to reconsider other major decisions regarding personal liberty — with Justice Clarence Thomas singling out Obergefell by name.
Many noted that the “Thomas wing” of the court — those who believe rights are protected only if they are specifically enumerated in the U.S. Constitution or law — did not bother to file a dissent to last week’s wordless refusal to take up Davis’s case. That doesn’t mean they’ve given up.
That’s particularly true in Florida, where the governor wields homophobia as a culture-war cudgel, shrieking about “wokeness” and villainizing drag queens. That attitude is a clear and potent threat to the dignity, freedom and security of nearly 100,000 same-sex couples who make Florida their home. The danger is amplified by the presence of the 2008 ban on same-sex marriage — still embedded in the state Constitution — that was written so broadly that it might be used to outlaw any legal protections for same-sex couples.
The first, most obvious step is to start gathering signatures now for an amendment to cut that cancer out of the state’s foundational legal framework, and another that will protect same-sex marriage going forward. Along the way, Floridians can affirm a truth that the vast majority of us embrace: The love that binds two consenting adults together should not be thwarted by governmental interference, or exploited for political gain.
The Orlando Sentinel Editorial Board consists of Opinion Editor Krys Fluker, Executive Editor Roger Simmons and Viewpoints Editor Jay Reddick. Use insight@orlandosentinel.com to contact us.