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Praise, calls for more action after DOMA ruling review

Administration won’t say whether it backs litigation to ensure Social Security, veterans can flow

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Eric Holder, U.S. Attorney General, Barack Obama Administration, United States Department of Justice, gay news, Washington Blade
Eric Holder, Tammy Baldwin, Melissa Etheridge, United States Department of Justice, United States Senate, Democratic Party, Wisconsin, gay news, Washington Blade, LGBT Pride

U.S. Attorney General Eric Holder announced on Friday the conclusion of the administration’s review of the DOMA decision (Washington Blade photo by Michael Key).

As the one-year anniversary approaches of the U.S. Supreme Court’s decision against the Defense of Marriage Act, the Justice Department’s interpretation of the ruling is inspiring mixed reactions among LGBT advocates, but most are happy with the results so far.

On Friday, U.S. Attorney General Eric Holder announced in the form of a memo to President Obama the Justice DepartmentĀ has finished its year-long review of the Supreme Court decision striking down Section 3 of DOMA, a law that prohibited recognition of same-sex marriages at the federal level.

The DOMA decision, which was handed down alongside the Supreme Court’s ruling on California’s Proposition 8 on June 26, 2013, will see its one-year anniversary on Thursday. Some advocates say they’re happy with the administration’s interpretation of the decision, and others want more action in terms of support with litigation and legislation.

Kate Kendell, executive director of the National Center for Lesbian Rights, praised Obama for his “unparalleled leadership,” but called on him to support litigation to extend marriage rights to same-sex couples nationwide.

“Todayā€™s announcement that same-sex spouses in states that refuse to respect their marriages will be denied the Social Security benefits they have paid for and earned, and that LGBT veterans who have served this country will be treated as second-class citizens, underscores how far we have yet to go to achieve true equality,” Kendell said. “We call on the administration to redouble its efforts to stand up for these families and to support litigation to challenge discriminatory and unconstitutional state laws that exclude same-sex couples and their children from the protections of marriage.”

The administration has afforded many benefits to married same-sex couples following the decision last year, ensuring they flow to gay couples regardless of whether they live in a jurisdiction where same-sex marriage is legal. Among those were benefits related to immigration, taxes, employer-provided pensions and federal employee benefits.

But in the memo, Holder says the Justice Department concluded as part of its review it cannot extend certain Social Security and veterans benefits to these couples if they live in one of 31 states where same-sex couples cannot legally marry.

Because federal law governing certain Social Security and veterans benefits looks to the place of residence, not the place of celebration, in determining whether a couple is married, the administration determined Congress must pass additional legislation to extend these benefits to married same-sex couples living in non-marriage equality states.

Despite the denial of these benefits, most LGBT advocates praised the Obama administration for its response to the court’s ruling.

Rea Carey, executive director of the National Gay & Lesbian Task Force, gave the Obama administration a grade of “A” for the extension of benefits to married same-sex couples.

“The U.S. Attorney General and the administration deserves an ‘A’ grade for their efforts to fully implement the Supreme Court’s Windsor decision, a long list of changes that deeply and positively impacts the lives of millions of same-sex couples and their families,” Carey said. “Moreover, it speaks volumes about the values of inclusion and diversity that underpins President Obama’s approach to delivering freedom and justice for all Americans.”

Also happy on the day the completion of the review was announced was Tico Almeida, president of Freedom to Work.

On Friday, Labor Secretary Thomas Perez announced his department is issuing a new rule to ensure individuals in same-sex marriages can take leave from an employer to care for a spouse under the Family & Medical Leave Act. This new rule builds off an earlier announcement that this benefit would be available in the wake of the DOMA decision, but only for same-sex couples applying for the benefit in states with marriage equality.

Almeida, who had pushed the administration to make the rule change, said the new policy “will let employers in all 50 states know that gay and lesbian married couples must be treated with respect when they seek workplace leave to take care of a same-sex spouse that gets into an accident or is diagnosed with an illness.

“There is no doubt that this administration has already done and continues to do more to promote LGBT fairness than any other in our nationā€™s history,” Almeida concluded.

Certain benefits won’t extend to gay couples

But that sense of satisfaction wasn’t shared by everyone, particularly LGBT groups that were pressuring the Obama administration to enforce Social Security and veterans laws in such a way that married same-sex couples could receive related benefits in non-marriage equality states.

Vickie Henry, a staff attorney with Gay & Lesbian Advocates & Defenders, expressed general satisfaction with the implementation of the DOMA decision, but acknowledged her group had previously said all Social Security benefits should flow to married same-sex couples regardless of where they live.

“We have advocated with the White House and the Department of Justice that there was room for them to interpret the Social Security Act to allow the extension of benefits,” Henry said. “They’ve reached the conclusion that they’ve reached. We thought that they had some room, and they are pursuing a legislative solution.”

Henry advised same-sex couples that live in non-marriage equality states and think they’re entitled to Social Security benefits to “keep those claims alive” and apply despite the administration’s post-DOMA policy.

“We’ve had people here who’ve called us because they had a spouse and they couldn’t continue to live in their home, and they lost their home, because they weren’t immediately able to access their Social Security benefits,” Henry said. “The harm here for real people can be quite significant.”

Despite the general rule about withholding Social Security benefits for married same-sex couples in non-marriage equality states, the Justice Department found limited workaround.

If a married same-sex couple applies for benefits in a marriage-equality state, but moves to another state that doesn’t recognize the marriage, the agency won’t withhold benefits based on the place of residence standard during or after the application process.

Further, same-sex couples living in states with domestic partnerships or civil unions, but not marriage equality, would be eligible for Social Security benefits. Those states are Colorado, Wisconsin and Nevada.

Stephen Peters, president of the LGBT military group known as American Military Partner Association, called on Congress to take action, saying he’s “saddened and frustrated” that the Justice Department has decided it cannot afford to extend spousal veterans benefits to same-sex couples in states without marriage equality.

“While the administration has made great efforts in providing legal recognition to married same-sex couples wherever they determined it legally possible, it simply isn’t enough,” Peter said. “Our LGBT veterans have served, sacrificed, and in some cases died right alongside their heterosexual counterparts, and our nation cannot allow this injustice to continue.”

As with Social Security, veterans benefits would still be able to flow to married same-sex couples in non-marriage equality states for the purposes of 1) transfer of GI-Bill education benefits to dependents; 2) access to group life insurance and family insurance group life insurance programs; 3) and eligibility for dependent and survivor education assistance.

Moreover, the VA recently instituted a rule change to allow joint burial for the same-sex partners of veterans in domestic partnerships or civil unions.

But according to the American Military Partner Association, veterans in non-marriage equality states still won’t have access to important benefits like ChampVA (health care for spouses of disabled veterans), higher disability compensation for disabled veterans with dependents, full access to VA home loans, and many survivor benefits for widows.

One piece of legislation that would extend all of these benefits is the Respect for Marriage Act, sponsored by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate, which has a “certainty” principle that would ensure the federal benefits of marriage would flow to married same-sex couples regardless of where they live.

The Social Security & Marriage Equality Act, introduced by Sen. Patty Murray (D-Wash.), would address issues related to Social Security benefits, while an amendment introduced by Sen. Jeanne Shaheen (D-N.H.) and Mark Udall (D-Colo.) along the lines of the Charlie Morgan Act would address veterans benefits. The Veteran Spouses Equal Treatment Act, sponsored by Rep. Dina Titus (D-Nev.) in the U.S. House, would also address issues related to veterans benefits.

But movement on any of these bills would be extremely difficult in the Republican-controlled U.S. House, and even in the Democratic-controlled U.S. Senate given the limited time remaining in the legislative calendar this Congress. Moreover, whether President Obama would work to guide them toward passage remains to be seen.

Shin Inouye, a White House spokesperson, enumerated the bills that could address the situation when asked if President Obama would call for a vote on them in the U.S. Senate by year’s end.

“We look forward to working with lawmakers to pass legislation like the Respect for Marriage bills introduced by Sen. Dianne Feinstein and Congressman Jerrold Nadler, the Social Security & Marriage Equality Act introduced by Sens. Mark Udall and Patty Murray, and the Veterans Affairsā€™ amendment proposed by Sens. Mark Udall and Jeanne Shaheen earlier this year,” Inouye said.

Another ruling from the U.S. Supreme Court instituting marriage equality throughout the country would also address the situation. Litigation continues to percolate through the judiciary, so a final ruling from the Supreme Court on the marriage issue is expected by the middle of next year.

Dena Iverson, a Justice Department spokesperson, emphasized the importance of legislation as a means to address the issue when asked about the pending litigation.

“I will refer you to our release today that said, ‘The administration looks forward to working with Congress to fix these parts of the law to ensure that Americans who rely on these programs can obtain these essential benefits no matter where they live,'” Iverson said.

Another solution could be additional litigation from same-sex couples against the federal government in these non-marriage equality states seeking Social Security and veterans benefits.

GLAD’s Henry, however, said she’s unaware of any such litigation in the works, and the process for that to happen with Social Security benefits would take an inordinate amount of time.

“It can be more than a year, which is why once you got your initial denial, you can seek an expedited review and permission to go to court, which can take a long time,” Henry said.

Henry acknowledged a nationwide ruling from the Supreme Court in favor of marriage equality would also address the situation. Although there’d be a question about retroactivity, Henry said GLAD believes such a ruling would apply to couples who had previously sought benefits.

Despite some dissatisfaction with the continued withholding of benefits, no LGBT advocate is outright criticizing the Obama administration for enforcing the place of residence standard under current law for certain Social Security and veterans benefits.

Doug NeJaime, a law professor at University of California, Irvine, said the administration’s interpretation of the relevant statutes makes sense even in the wake of the DOMA decision.

“Given the governing laws relating to social security and veterans benefits, and specifically use of residence or domicile as the determinant of marital status, it is not surprising that the administration has been unable to extend spousal benefits to same-sex couples merely through regulatory changes,” NeJaime said. “What exactly lawfully married means depends on the statutes and regulations in particular contexts, and the administration has done a lot to implement a place of celebration rule as widely as possible.”

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Honoring the legacy of New Orleansā€™ 1973 UpStairs Lounge fire

Why the arson attack that killed 32 gay men still resonates 50 years later

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Fifty years ago this week, 32 gay men were killed in an arson attack on the UpStairs Lounge in New Orleans. (Photo by G.E. Arnold/Times-Picayune; reprinted with permission)

On June 23 of last year, I held the microphone as a gay man in the New Orleans City Council Chamber and related a lost piece of queer history to the seven council members. I told this story to disabuse all New Orleanians of the notion that silence and accommodation, in the face of institutional and official failures, are a path to healing.  

The story I related to them began on a typical Sunday night at a second-story bar on the fringe of New Orleansā€™ French Quarter in 1973, where working-class men would gather around a white baby grand piano and belt out the lyrics to a song that was the anthem of their hidden community, ā€œUnited We Standā€ by the Brotherhood of Man. 

ā€œUnited we stand,ā€ the men would sing together, ā€œdivided we fallā€ ā€” the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to todayā€™s queer safe havens. 

Around that piano in the 1970s Deep South, gays and lesbians, white and Black queens, Christians and non-Christians, and even early gender minorities could cast aside the racism, sexism, and homophobia of the times to find acceptance and companionship for a moment. 

For regulars, the UpStairs Lounge was a miracle, a small pocket of acceptance in a broader world where their very identities were illegal. 

On the Sunday night of June 24, 1973, their voices were silenced in a murderous act of arson that claimed 32 lives and still stands as the deadliest fire in New Orleans history ā€” and the worst mass killing of gays in 20th century America. 

As 13 fire companies struggled to douse the inferno, police refused to question the chief suspect, even though gay witnesses identified and brought the soot-covered man to officers idly standing by. This suspect, an internally conflicted gay-for-pay sex worker named Rodger Dale Nunez, had been ejected from the UpStairs Lounge screaming the word “burn” minutes before, but New Orleans police rebuffed the testimony of fire survivors on the street and allowed Nunez to disappear.

As the fire raged, police denigrated the deceased to reporters on the street: ā€œSome thieves hung out there, and you know this was a queer bar.ā€ 

For days afterward, the carnage met with official silence. With no local gay political leaders willing to step forward, national Gay Liberation-era figures like Rev. Troy Perry of the Metropolitan Community Church flew in to ā€œhelp our bereaved brothers and sistersā€ ā€” and shatter officialdomā€™s code of silence. 

Perry broke local taboos by holding a press conference as an openly gay man. ā€œItā€™s high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,ā€ Perry said. 

Two days later, on June 26, 1973, as families hesitated to step forward to identify their kin in the morgue, UpStairs Lounge owner Phil Esteve stood in his badly charred bar, the air still foul with death. He rebuffed attempts by Perry to turn the fire into a call for visibility and progress for homosexuals. 

ā€œThis fire had very little to do with the gay movement or with anything gay,ā€ Esteve told a reporter from The Philadelphia Inquirer. ā€œI do not want my bar or this tragedy to be used to further any of their causes.ā€ 

Conspicuously, no photos of Esteve appeared in coverage of the UpStairs Lounge fire or its aftermath ā€” and the bar owner also remained silent as he witnessed police looting the ashes of his business. 

ā€œPhil said the cash register, juke box, cigarette machine and some wallets had money removed,ā€ recounted Esteveā€™s friend Bob McAnear, a former U.S. Customs officer. ā€œPhil wouldnā€™t report it because, if he did, police would never allow him to operate a bar in New Orleans again.ā€ 

The next day, gay bar owners, incensed at declining gay bar traffic amid an atmosphere of anxiety, confronted Perry at a clandestine meeting. ā€œHow dare you hold your damn news conferences!ā€ one business owner shouted. 

Ignoring calls for gay self-censorship, Perry held a 250-person memorial for the fire victims the following Sunday, July 1, culminating in mourners defiantly marching out the front door of a French Quarter church into waiting news cameras. ā€œReverend Troy Perry awoke several sleeping giants, me being one of them,ā€ recalled Charlene Schneider, a lesbian activist who walked out of that front door with Perry.

(Photo by G.E. Arnold/Times-Picayune; reprinted with permission)

Esteve doubted the UpStairs Lounge storyā€™s capacity to rouse gay political fervor. As the coroner buried four of his former patrons anonymously on the edge of town, Esteve quietly collected at least $25,000 in fire insurance proceeds. Less than a year later, he used the money to open another gay bar called the Post Office, where patrons of the UpStairs Lounge ā€” some with visible burn scars ā€” gathered but were discouraged from singing ā€œUnited We Stand.ā€ 

New Orleans cops neglected to question the chief arson suspect and closed the investigation without answers in late August 1973. Gay elites in the cityā€™s power structure began gaslighting the mourners who marched with Perry into the news cameras, casting suspicion on their memories and re-characterizing their moment of liberation as a stunt. 

When a local gay journalist asked in April 1977, ā€œWhere are the gay activists in New Orleans?,ā€ Esteve responded that there were none, because none were needed. ā€œWe donā€™t feel weā€™re discriminated against,ā€ Esteve said. ā€œNew Orleans gays are different from gays anywhere elseā€¦ Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.ā€ 

(Photo by H.J. Patterson/Times-Picayune; reprinted with permission)

An attitude of nihilism and disavowal descended upon the memory of the UpStairs Lounge victims, goaded by Esteve and fellow gay entrepreneurs who earned their keep via gay patrons drowning their sorrows each night instead of protesting the injustices that kept them drinking. 

Into the 1980s, the story of the UpStairs Lounge all but vanished from conversation ā€” with the exception of a few sanctuaries for gay political debate such as the local lesbian bar Charleneā€™s, run by the activist Charlene Schneider. 

By 1988, the 15th anniversary of the fire, the UpStairs Lounge narrative comprised little more than a call for better fire codes and indoor sprinklers. UpStairs Lounge survivor Stewart Butler summed it up: ā€œA tragedy that, as far as I know, no good came of.ā€ 

Finally, in 1991, at Stewart Butler and Charlene Schneiderā€™s nudging, the UpStairs Lounge story became aligned with the crusade of liberated gays and lesbians seeking equal rights in Louisiana. The halls of power responded with intermittent progress. The New Orleans City Council, horrified by the story but not yet ready to take its look in the mirror, enacted an anti-discrimination ordinance protecting gays and lesbians in housing, employment, and public accommodations that Dec. 12 ā€” more than 18 years after the fire. 

ā€œI believe the fire was the catalyst for the anger to bring us all to the table,ā€ Schneider told The Times-Picayune, a tacit rebuke to Esteveā€™s strategy of silent accommodation. Even Esteve seemed to change his stance with time, granting a full interview with the first UpStairs Lounge scholar Johnny Townsend sometime around 1989. 

Most of the figures in this historic tale are now deceased. Whatā€™s left is an enduring story that refused to go gently. The story now echoes around the world ā€” a musical about the UpStairs Lounge fire recently played in Tokyo, translating the gay underworld of the 1973 French Quarter for Japanese audiences.

When I finished my presentation to the City Council last June, I looked up to see the seven council members in tears. Unanimously, they approved a resolution acknowledging the historic failures of city leaders in the wake of the UpStairs Lounge fire. 

Council members personally apologized to UpStairs Lounge families and survivors seated in the chamber in a symbolic act that, though it could not bring back those who died, still mattered greatly to those whose pain had been denied, leaving them to grieve alone. At long last, official silence and indifference gave way to heartfelt words of healing. 

The way Americans remember the past is an active, ongoing process. Our collective memory is malleable, but it matters because it speaks volumes about our maturity as a people, how we acknowledge the pastā€™s influence in our lives, and how it shapes the examples we set for our youth. Do we grapple with difficult truths, or do we duck accountability by defaulting to nostalgia and bluster? Or worse, do we simply ignore the past until it fades into a black hole of ignorance and indifference? 

I believe that a factual retelling of the UpStairs Lounge tragedy ā€” and how, 50 years onward, it became known internationally ā€” resonates beyond our current divides. It reminds queer and non-queer Americans that ignoring the past holds back the present, and that silence is no cure for what ails a participatory nation. 

Silence isolates. Silence gaslights and shrouds. It preserves the power structures that scapegoat the disempowered. 

Solidarity, on the other hand, unites. Solidarity illuminates a path forward together. Above all, solidarity transforms the downtrodden into a resounding chorus of citizens ā€” in the spirit of voices who once gathered ā€˜round a white baby grand piano and sang, joyfully and loudly, ā€œUnited We Stand.ā€ 

(Photo by Philip Ames/Times-Picayune; reprinted with permission)

Robert W. Fieseler is a New Orleans-based journalist and the author of ā€œTinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.ā€

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New Supreme Court term includes critical LGBTQ case with ‘terrifying’ consequences

Business owner seeks to decline services for same-sex weddings

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The U.S. Supreme Court is to set consider the case of 303 Creative, which seeks to refuse design services for same-sex weddings. (Blade file photo by Michael Key)

The U.S. Supreme Court, after a decision overturning Roe v. Wade that still leaves many reeling, is starting a new term with justices slated to revisit the issue of LGBTQ rights.

In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a website designer in Colorado who wants to opt out of providing her graphic design services for same-sex weddings despite the civil rights law in her state.

Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.

“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person ā€” if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”

The upcoming arguments and decision in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had no lawsuit to directly address the issue in its previous term, although many argued the Dobbs decision put LGBTQ rights in peril and threatened access to abortion for LGBTQ people.

And yet, the 303 Creative case is similar to other cases the Supreme Court has previously heard on the providers of services seeking the right to deny services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both of those cases, however, the court issued narrow rulings on the facts of litigation, declining to issue sweeping rulings either upholding non-discrimination principles or First Amendment exemptions.

Pizer, who signed one of the friend-of-the-court briefs in opposition to 303 Creative, said the case is “similar in the goals” of the Masterpiece Cakeshop litigation on the basis they both seek exemptions to the same non-discrimination law that governs their business, the Colorado Anti-Discrimination Act, or CADA, and seek “to further the social and political argument that they should be free to refuse same-sex couples or LGBTQ people in particular.”

“So there’s the legal goal, and it connects to the social and political goals and in that sense, it’s the same as Masterpiece,” Pizer said. “And so there are multiple problems with it again, as a legal matter, but also as a social matter, because as with the religion argument, it flows from the idea that having something to do with us is endorsing us.”

One difference: the Masterpiece Cakeshop litigation stemmed from an act of refusal of service after owner, Jack Phillips, declined to make a custom-made wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past, however, is present in the 303 Creative case. The owner seeks to put on her website a disclaimer she won’t provide services for same-sex weddings, signaling an intent to discriminate against same-sex couples rather than having done so.

As such, expect issues of standing ā€” whether or not either party is personally aggrieved and able bring to a lawsuit ā€” to be hashed out in arguments as well as whether the litigation is ripe for review as justices consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to lead the court to reach less sweeping decisions (sometimes successfully, and sometimes in the Dobbs case not successfully) to push for a decision along these lines.

Another key difference: The 303 Creative case hinges on the argument of freedom of speech as opposed to the two-fold argument of freedom of speech and freedom of religious exercise in the Masterpiece Cakeshop litigation. Although 303 Creative requested in its petition to the Supreme Court review of both issues of speech and religion, justices elected only to take up the issue of free speech in granting a writ of certiorari (or agreement to take up a case). Justices also declined to accept another question in the petition request of review of the 1990 precedent in Smith v. Employment Division, which concluded states can enforce neutral generally applicable laws on citizens with religious objections without violating the First Amendment.

Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking exemptions based on the First Amendment, such as the Masterpiece Cakeshop case.

Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a decision in favor of 303 Creative boils down to a clear-cut violation of the First Amendment.

“Colorado and the United States still contend that CADA only regulates sales transactions,” the brief says. “But their cases do not apply because they involve non-expressive activities: selling BBQ, firing employees, restricting school attendance, limiting club memberships, and providing room access. Coloradoā€™s own cases agree that the government may not use public-accommodation laws to affect a commercial actorā€™s speech.”

Pizer, however, pushed back strongly on the idea a decision in favor of 303 Creative would be as focused as Alliance Defending Freedom purports it would be, arguing it could open the door to widespread discrimination against LGBTQ people.

“One way to put it is art tends to be in the eye of the beholder,” Pizer said. “Is something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember ‘soup and art’? We have had an understanding that whether something is beautiful or not is not the determining factor about whether something is protected as artistic expression. There’s a legal test that recognizes if this is speech, whose speech is it, whose message is it? Would anyone who was hearing the speech or seeing the message understand it to be the message of the customer or of the merchants or craftsmen or business person?”

Despite the implications in the case for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who consider themselves proponents of free speech.

One joint friend-of-the-court brief before the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who’s written in favor of LGBTQ rights, and Eugene Volokh, a First Amendment legal scholar at the University of California, Los Angeles, argues the case is an opportunity to affirm the First Amendment applies to goods and services that are uniquely expressive.

“Distinguishing expressive from non-expressive products in some contexts might be hard, but the Tenth Circuit agreed that Smithā€™s product does not present a hard case,” the brief says. “Yet that court (and Colorado) declined to recognize any exemption for products constituting speech. The Tenth Circuit has effectively recognized a state interest in subjecting the creation of speech itself to antidiscrimination laws.”

Oral arguments in the case aren’t yet set, but may be announced soon. Set to defend the state of Colorado and enforcement of its non-discrimination law in the case is Colorado Solicitor General Eric Reuel Olson. Just this week, the U.S. Supreme Court announced it would grant the request to the U.S. solicitor general to present arguments before the justices on behalf of the Biden administration.

With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block. After the U.S. Tenth Circuit Court of Appeals ruled against 303 Creative in the lawsuit, the simple action by the Supreme Court to grant review in the lawsuit suggests they are primed to issue a reversal and rule in favor of the company.

Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.

“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”

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Kelley Robinson, a Black, queer woman, named president of Human Rights Campaign

Progressive activist a veteran of Planned Parenthood Action Fund

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Kelley Robinson (Screen capture via HRC YouTube)

Kelley Robinson, a Black, queer woman and veteran of Planned Parenthood Action Fund, is to become the next president of the Human Rights Campaign, the nation’s leading LGBTQ group announced on Tuesday.

Robinson is set to become the ninth president of the Human Rights Campaign after having served as executive director of Planned Parenthood Action Fund and more than 12 years of experience as a leader in the progressive movement. She’ll be the first Black, queer woman to serve in that role.

ā€œIā€™m honored and ready to lead HRC ā€” and our more than three million member-advocates ā€” as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,ā€ Robinson said. ā€œThis is a pivotal moment in our movement for equality for LGBTQ+ people. We, particularly our trans and BIPOC communities, are quite literally in the fight for our lives and facing unprecedented threats that seek to destroy us.”

Kelley Robinson IS NAMED as The next human rights Campaign president

The next Human Rights Campaign president is named as Democrats are performing well in polls in the mid-term elections after the U.S. Supreme Court overturned Roe v. Wade, leaving an opening for the LGBTQ group to play a key role amid fears LGBTQ rights are next on the chopping block.

“The overturning of Roe v. Wade reminds us we are just one Supreme Court decision away from losing fundamental freedoms including the freedom to marry, voting rights, and privacy,” Robinson said. “We are facing a generational opportunity to rise to these challenges and create real, sustainable change. I believe that working together this change is possible right now. This next chapter of the Human Rights Campaign is about getting to freedom and liberation without any exceptions ā€” and today I am making a promise and commitment to carry this work forward.ā€

The Human Rights Campaign announces its next president after a nearly year-long search process after the board of directors terminated its former president Alphonso David when he was ensnared in the sexual misconduct scandal that led former New York Gov. Andrew Cuomo to resign. David has denied wrongdoing and filed a lawsuit against the LGBTQ group alleging racial discrimination.

Kelley Robinson, Planned Parenthood, Cathy Chu, SMYAL, Supporting and Mentoring Youth Advocates and Leaders, Amy Nelson, Whitman-Walker Health, Sheroes of the Movement, Mayor's office of GLBT Affairs, gay news, Washington Blade
Kelley Robinson, seen here with Cathy Chu of SMYAL and Amy Nelson of Whitman-Walker Health, is the next Human Rights Campaign president. (Washington Blade photo by Michael Key)
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