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After 303 Creative: Inequality and the Harm to Children

The U.S. Supreme Court’s June ruling in 303 Creative v. Elenis was “profoundly wrong,” wrote Justice Sonia Sotomayor in her dissent, where she also pointed to the harmful message the ruling sends to children with same-sex parents. Anti-LGBTQ+ individuals and organizations have been trying for decades to own the idea that they are acting in defense of children, even as their actions in fact cause harm. LGBTQ+ families and other advocates have made some progress against this — but as this case and other recent events make clear, we need to redouble our efforts.

The majority in 303 Elenis ruled that a web designer may refuse to create custom wedding websites for same-sex couples, despite state nondiscrimination laws. LGBTQ+ legal experts from Lambda Legal, the National Center for Lesbian Rights, and GLBTQ Legal Advocates & Defenders (GLAD) have all released statements emphasizing that the decision is a narrow one, limited to businesses doing custom, creative work. Yet as Lambda Legal Chief Legal Officer Jennifer C. Pizer said, “The door has been opened for potential future cases to expand this limited carve-out.”

Even before that might happen, however, the harm is evident. Justice Sotomayor’s dissent, in which she was joined by Justices Elena Kagan and Ketanji Brown Jackson, explained, “Imagine a same-sex couple browses the public market with their child. The market could be online or in a shopping mall. Some stores sell products that are customized and expressive. The family sees a notice announcing that services will be refused for same-sex weddings. What message does that send? It sends the message that we live in a society with social castes. It says to the child of the same-sex couple that their parents’ relationship is not equal to others’.”

In the past few years, anti-LGBTQ+ people and organizations across the country have continued to use a purported concern for children to ban LGBTQ-inclusive children’s books from schools and libraries, to block discussion of LGBTQ+ identities and history in classrooms, to stop transgender youth from using facilities and playing on sports teams aligned with their genders, and to stop them from accessing proven, gender-affirming health care. Most recently, Casey DeSantis, wife of virulently anti-LGBTQ+ Florida Governor and presidential candidate Ron DeSantis (R), on July 6 helped launch the campaign’s “Mamas for DeSantis” program “to protect the innocence of our children and to protect the rights of parents.”

As study after study of LGBTQ+ youth and children of LGBTQ+ parents has shown, however, what harms children is stigma, bias and exclusion, or forcing them to deny or hide their identities and/or families and bullying them if they don’t. In other words, everything the DeSantises and their ilk, along with the Supreme Court majority, seem bent on doing.

We LGBTQ+ people have been fighting for a long time to prove we are no harm to children, and we’ve made progress in many ways. I want to focus on one such battle here. During the Proposition 8 conflict in California, marriage equality opponents tried to scare people by saying that marriage equality would require that children learn about “homosexuality” in schools, as if that were a bad thing. Prop 8 passed, and same-sex couples were barred from marriage. 

Marriage equality advocates, however, then worked hard to transform “think of the children” from an argument against marriage equality into one for it. Some of the transformation came from statements by major medical, psychological and sociological organizations that brought a growing swell of scientific evidence to bear. Much came from same-sex parents and their children (some grown) speaking out about their families.

By 2013, this evidence and many of these family stories were part of briefs before the Supreme Court. Justice Anthony Kennedy then wrote for the majority in United States v. Windsor that the Defense of Marriage Act “humiliates tens of thousands of children now being raised by same-sex couples…. [and] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Variations of that argument were then used to win almost every other federal decision on marriage equality, including the 2015 Obergefell v. Hodges ruling that established marriage equality nationwide. More than half of the Obergefell plaintiffs were parents. Justice Kennedy reiterated in Obergefell, “Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser…. The marriage laws at issue thus harm and humiliate the children of same-sex couples.” 

Justice Sotomayor, in her 303 Creative dissent, is reminding us of the stigma and harm that inequality inflicts on children — and perhaps she is also signaling a way forward. We LGBTQ+ parents, our grown children, and parents of LGBTQ+ children can play a vital role in stopping the current wave of bias by being visible and outspoken about our own family stories — in our communities, in direct communication with our elected officials, on social media, in partnership with LGBTQ+ organizations, and elsewhere. If we cannot do so without risking our safety or our children’s privacy, we can help elevate the stories of others.

Some talking points? “Parents’ rights” include our rights. “Parents’ rights” should never come at the cost of harm to children. Anti-LGBTQ+ discrimination harms children. Pass it on.

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