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First Amendment
The First Amendment protects citizens from legislative infringement on religion, speech, press, assembly, and petition. Added to the U.S. Constitution within the Bill of Rights in 1791, the amendment’s guaranteed freedoms remain relevant today. Queer discrimination and the rights of LGBTQ+ individuals largely rest on the interpretation of the First Amendment’s protection of religion, speech, and press. Conservative religious-based beliefs can be viewed as manifested into law. Commonly in these cases, freedom of expression (such as clothing) is challenged under the umbrella of freedom of speech. Additionally, freedom of speech and press in the context of obscenity have become a heated debate in recent years with “Don’t Say Gay” laws entering state legislation. The Supreme Court of the United States (SCOTUS) and state courts share uneven decisions in protecting freedom of religion and queer individuals’ freedom of speech and press. These differing decisions come from balancing the freedom of religion (and the ability for religious people to practice their values) while maintaining a space where queer speech and expression are permitted.
Past Cases Regarding Queer Discrimination and the First Amendment
One, Inc. v. Olesen: One of the first cases involving queer rights and the First Amendment was decided in 1958. ONE: The Homosexual Magazine was the first widely distributed magazine that centered around gay media. The magazine included articles and short stories that emphasized a homosexual lifestyle. The Los Angeles postal authorities seized two of their issues (August and October) as a violation of Comstock’s obscenity laws. Comstock’s laws criminalized sending sex toys, obscene material, contraceptives, and sexual personal letters through the postal service. The defendant and appeal court found the story “Sappho Remembered” to be “obscene, lewd, lascivious and filthy,” claiming its illegality to be distributed by U.S. postal mail. However, the Supreme Court used the standards set by 18. U.S.C.A. section 1461 to redefine obscenity. With the new definition, the judges concluded that homosexual material is not inherently obscene and that the printing of the material is protected under the First Amendment. Additionally, the ruling states that queer content is not inherently obscene and is protected constitutionally.
Doe v. Yunits: Doe v. Yunits provides an example of the First Amendment’s freedom of speech including the freedom of expression. In 2001, Pat Doe (a pseudonym) filed an eight-count complaint against Brockton South Junior High School for denying her First Amendment right. Doe was a transgender individual, diagnosed with gender identity disorder (now known as gender dysphoria). Her school denied her the ability to express herself through gender-affirming clothing. Because Doe was assigned male at birth, the school restricted her from wearing clothes typical of female teenagers. Massachusetts Superior Court ruled against Brockton South Junior High, stating that disciplining a male teenager for wearing “female” clothing violates the freedom of expression. Furthermore, the case affirmed that this sort of discipline can be classified as sex discrimination. The case proved important for queer and transgender individuals across the nation as federal courts have applied the logic of this decision to dress codes in the workplace.
303 Creative LLC v. Elenis: The most recent Supreme Court case concerning LGBTQ+ individuals is 303 Creative LLC v. Elenis, decided in 2023. The Colorado Anti-Discrimination Act (CADA) prohibits businesses that provide services or accommodations to the public from discrimination (such as refusal of service) on characteristics such as sexual orientation. Smith, a Christian businesswoman, disagreed with the act and sued before her business encountered an issue. SCOTUS ruled that the First Amendment prohibits the state from forcing a wedding website designer to construct designs against the designer’s beliefs. With a 6-3 majority opinion, they inferred that the First Amendment protects an “uninhibited marketplace of ideas” which implies that a government cannot force a person to proclaim its preferred messages. In their view, Colorado’s CADA law would force the web designer to express something contrary to her beliefs. Decided in late June of 2023, the decision of 303 Creative LLC v. Elenis set a precedent for state and federal rulings for the foreseen future. The decision stated that business owners have the freedom to have their own beliefs and do not have to conform their beliefs to the government’s preferred messages even if the message works against discrimination.
Pressing Upcoming Cases
Kansas SB 149: Under the genre of “Don’t Say Gay,” Kansas SB 149 is working to expand the definition of obscenity. Obscenity or material that appeals to prurient interest is defined as materials having the inclination to evoke excessive lustful thoughts. Kansas’s potential new definition will include drag shows in front of minors. Drag is defined in section 2B as a “display [of] gender identity different from the gender […] assigned at birth,” in which one “sings, lip-syncs, dances, or otherwise performs before an audience of at least two persons for entertainment, whether performed for payment or not.” Drag is associated with queer culture because drag performers have historically been gay, cisgender men. Kansas’s new bill is unaccommodating to the LGBTQ+ community for a variety of reasons. Because drag culture is part of queer culture, the bill infringes on the community’s freedom of speech and expression as the bill significantly restricts where drag may be performed. Drag is typically performed at parades, nightclubs, and pageants. In more recent years, drag has evolved to be in other public spaces such as libraries, schools, and stores. Kansas SB 149 would prohibit drag performances in these locations. Moreover, non-binary and trans individuals (along with others that do not conform to the gender binary) typically dress in fashions different from their gender assigned at birth. This bill could be used to target any non-cisgendered individual that does not present themselves as the gender assigned at their birth. If they perform, this bill will find the performance illegal if it was done with minors present in the room. This bill does not define what each gender is supposed to wear, leaving a gray zone of what clothes drag performers can and cannot wear. Kansas’s legislature has adjourned this bill until 2024.
Tennessee HB800: Tennessee’s legislation is considering a bill (HB800) that deals with queer media coverage in public schools. The proposed bill calls for a ban of library books and “instructional materials that promote, normalize, support or address lesbian, gay, bi-sexual or transgender issues or lifestyles.” The bill works to restrict the queer community’s literature in schools and redefine what the public views as appropriate. The bill overlooks the precedent set by One, Inc. v. Olesen and the current definition of obscenity. Banning books that educate the public on queer identities could infringe on First Amendment rights. Freedom of speech and press is constitutionally protected. In the past few years, public schools across the country have banned books that did not seem to adhere to the school’s beliefs. Banning queer books would prohibit queer speech and queer press. This bill entered a subcommittee on March 23, 2022.
Equality Act: The Equality Act, created in 1974, remains in Congress. The bill aims to amend the Civil Rights Act of 1964 that prohibits discrimination on the basis of color, race, religion sex, and national origin. The goal of the Equality Act is to add sex, sexual orientation, and gender identity to the list of prohibited discriminations. For queer individuals, the bill would ensure protection in housing, employment, public education, federally funded programs, public spaces, and jury service. As of today, twenty-three states have laws that already prohibit discrimination based on these characteristics; the bill demands all states to adapt their practices to prevent LGBTQ+ discrimination. This bill works to protect queer individual’s speech and expression that would lead the public and employers to assume a queer identity. This bill was reintroduced in the 118th Congress on June 21, 2023.
Expectations for the Future of LGBTQ+ Rights
In 2023, the U.S. Congress was controlled by the Republican party. Democrats had 213 seats while Republicans occupied 221 seats. Furthermore, the majority of the members of the Supreme Court lean toward conservative theory. In the past, the Democratic party has been in favor of gaining more rights for the LGBTQ+ community. The party is invested in ending LGBTQ+ discrimination and violence (such as hate crimes) against the queer community through legislation. Due to the current demographics of the legislature and Supreme Court, it is unlikely that bills such as the Equality Act, which protects and writes into law freedoms for the queer community, will pass. The “Don’t Say Gay” genre of bill has continued to be passed by states and will probably continue to pass as government officials in high office lean more Republican and conservative. If put into legislation, Tennessee HB800 and Kansas SV149 will restrict queer individuals of their First Amendment rights. This may permit the Supreme Court to redefine obscenity and clarify the nature of queer identities and content surrounding those identities. A new definition of obscenity could either greatly censor queer individuals or protect queer freedom of speech and press. The upcoming presidential and congressional elections may have an impact on the passing of bills related to queer rights and the future of the First Amendment.
While the LGBTQ+ community may be disheartened with the Supreme Court’s present First Amendment interpretation, the First Amendment is not the lone protection for queer individuals. The Fourteenth Amendment comes into consideration with discrimination cases. The amendment states “No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” SCOTUS and state courts will have to investigate the precedent of the case 303 Creative LLC v. Elenis, as it affects queer individual’s rights and a deprivation of their rights would be unconstitutional.
Arguments under Due Process and Equal Protection may prompt SCOTUS to provide further guidance on protections afforded to LBGTQ+ individuals under the Constitution. As discrimination continues to affect queer communities, the Court must decide how to treat LGBTQ+ identities as a class and consider the constitutionality of queer censorship.