Hiltzik: An anti-LGBTQ+ judge stands up for DeSantis

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On the face of it, Florida Gov. Ron DeSantis achieved an important victory Wednesday in his two-year battle with Walt Disney Co., as a federal judge tossed Disney’s lawsuit contending that DeSantis moved against the company in retaliation for its criticism of an anti-gay state law.

DeSantis certainly thought so. “The Corporate Kingdom is over,” his spokesman crowed. “The days of Disney controlling its own government and being placed above the law are long gone …. In short — as long predicted, case dismissed.”

Disney was circumspect about its loss. As my colleagues Christi Carras and Ryan Faughnder reported, the company said it was determined to “press forward” with an appeal. “This is an important case with serious implications for the rule of law, and it will not end here. If left unchallenged, this would set a dangerous precedent and give license to states to weaponize their official powers to punish the expression of political viewpoints they disagree with.”

Yet there’s more to the story than that. Although most reports on the judge’s decision noted that the judge, Allen Winsor, was appointed to the federal bench by Donald Trump, they didn’t take a closer look at his record. And that record suggests he came to the case with a preconceived notions that worked strongly against Disney.

Assessing judges’ decisions by citing the presidents who appointed them hasn’t always been a useful approach; it hasn’t been uncommon for appointees to confound the politics of their appointers.

But it’s been more useful with Trump appointees, because on the whole they’ve been more openly ideological than their colleagues on the bench, and less qualified too. That may be the case here.

Before turning to Winsor’s record, let’s delve into the lawsuit itself.

As I’ve reported before, the issue was a law pushed by DeSantis and enacted by his supine GOP-controlled state legislature that effectively liquidated the special district that the state created in 1967 to give Disney near-dictatorial control over the 43-square-mile site of Walt Disney World and its related theme parks and resorts outside Orlando.

The Reedy Creek Improvement District, governed by a board hand-picked by Disney, kept the site in manicured comeliness for more than a half-century.

But the Parental Rights in Education law, which was signed by DeSantis in March 2022, created a breach between DeSantis and the company that is his state’s largest public employer.

The law, dubbed “Don’t Say Gay” by its critics, suppresses, even outlaws, discussions about “sexual orientation or gender identity” in Florida schools through third grade and places limits on those discussions in upper grades.

The law was part of DeSantis’ campaign to eradicate what he called “woke” ideology from Florida, a stance plainly designed to appeal to a conservative voting bloc as he prepared an ultimately fruitless campaign for the GOP nomination for president. After some hesitation and goaded by its own diverse workforce, Disney came out publicly against the Don’t Say Gay law.

DeSantis and his legislative henchpersons were perfectly candid about their motivations in dissolving the Reedy Creek district: It was retaliation for Disney’s outspokenness.

In its lawsuit challenging the dissolution, the company quoted a sponsor of the Reedy Creek dissolution bill as saying, “This bill does target one company. It targets the Walt Disney Company.”

In his campaign autobiography, “The Courage to Be Free,” DeSantis called Disney’s position on the Don’t Say Gay law “a textbook example of when a corporation should stay out of politics.” He added, “Disney … clearly crossed a line in its support of indoctrinating very young schoolchildren in woke gender identity politics.”

Anyway, the law passed, Reedy Creek was refashioned as the Central Florida Tourism Oversight District, and DeSantis replaced Disney’s board of hand-picked corporate functionaries with his own hand-picked Republican functionaries.

Amusingly enough, one of the new board members is Bridget Ziegler, a co-founder of the notoriously bluenosed book-banning organization Moms for Liberty and the wife of the then-chairman of the Florida Republican Party, Christian Ziegler.

As it happens, the Zieglers have since become embroiled in a sex scandal involving a three-way tryst and resulting in possible criminal charges against Christian Ziegler. He has been ousted as GOP chairman, but his wife is still on the district board.

That brings us back to Winsor and his ruling on the Disney lawsuit. In a letter opposing his 2018 nomination to the federal bench, the Leadership Conference on Civil and Human Rights called him “a young, conservative ideologue who has attempted to restrict voting rights, LGBT equality, reproductive freedom, environmental protection, criminal defendants’ rights, and gun safety.”

That’s quite a litany, but it falls entirely within the wheelhouse of typical Trump appointees and the ideology of the Federalist Society, the right-wing lawyers organization that placed many candidates for judicial appointments on Trump’s desk. Winsor joined the Federalist Society in 2005, according to a questionnaire he submitted to the Senate upon his judicial nomination.

As Florida’s solicitor general during the governorship of Republican Rick Scott, Winsor submitted a federal court brief defending the state’s ban on same-sex marriage asserting, among other arguments, “a clear and essential connection between [heterosexual] marriage and responsible procreation and childrearing.” The judge in that case called the arguments “an obvious pretext for discrimination” and ruled the ban unconstitutional.

Winsor also defended a Florida election law that obstructed voter registration in a way that cost 14,000 Floridians their right to vote, with the burden falling mostly on minorities. The law was ultimately enjoined by a federal judge as a violation of the 1st and 14th amendments.

Winsor also defended a Florida law mandating a 24-hour waiting period before an abortion could be performed. He argued that, due to the law, “rather than facing a rushed decision in the presence of a provider standing ready to abort the pregnancy immediately … a woman has an opportunity to consider her decision in private, away from the potentially coercive environment of a clinic.”

Asked at his confirmation hearing what evidence supported his assertion about the “coercive environment” of an abortion clinic, he acknowledged that “there was not an evidentiary record developed on that assertion.”

In his Disney ruling, Winsor found that Disney had no grounds to challenge the state law as motivated by an attack on free speech because the state law was “facially constitutional.” He asserted that the law dissolving Reedy Creek doesn’t “explicitly” single out Disney or Reedy Creek as its targets; even though Disney cited “the clear, consistent, and proud declarations” of legislative leaders that their goal was to punish the company, that wasn’t enough, he ruled, to prove their motivations were “constitutionally impermissible.”

The law, Winsor wrote, citing an earlier judicial ruling, “is not pinpointed against a named individual or group; it is general in its wording and impact.”

To the layperson, that sounds like Winsor has failed to notice what is near at hand, which is the essential element of farce, and in this case amounts to the triumphalist boasting by legislators and DeSantis that they scored a direct hit on Disney as a political adversary.

From Disney’s standpoint, the unfortunate irony is that its lawsuit was originally assigned to an Obama appointee on the federal bench in Florida who had ruled against DeSantis in other matters, but he recused himself on the grounds that he owned some Disney stock. The wheel turned and Winsor inherited the case.

It’s been said that bad cases make bad law, but so can bad luck. DeSantis has won this first skirmish against Disney, but where things go from here is anyone’s guess.



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