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Voices from LGBT Catholics in Western Africa

Faithful in Ghana, Togo, Benin and Nigeria face persecution, discrimination

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Baptist, gay news, Washington Blade
Baptist, gay news, Washington Blade

LGBT Catholics in Western Africa continue to face discrimination and persecution from the church and their countries’ respective governments.

Editorā€™s note: This report was commissioned by the European Forum of LGBT Christian Groups being concerned, that the voices of LGBT Christians from Western Africa were not well heard in the on-going discussion about the Family Synod of the Roman Catholic Church. It presents current experiences of LGBT Catholics living in the region and their opinions on the Family Synod. The findings are based on interviews conducted by Davis Mac-Iyalla with Catholic LGBT people in Ghana, Togo, Benin and Nigeria held from 14āˆ’31 March 2015.

Ghana

I arrived safely in the city of Accra, Ghana, on the 14th of March 2015. The last time I was in Ghana was in 2008 and I still have many friends there. The day after my arrival was Sunday and Motherā€™s Day, and I went with some friends to Mass in Accra. After Mass I was introduced to some of the LGBTI people present at church, some of whom sing in the choir. Some were very happy to share their stories with me, while others were more reticent out of fear that the information might find its way to the authorities and bring trouble for them. Under Ghanaian criminal law, same-sex sexual activity among males is illegal and can result in long prison sentences. The situation with lesbians is less clearly defined, but still highly problematic.

Rosebud, a Christian, lesbian and midwife who works for the government hospital, leads an informal group of Catholic lesbians. It started among fellow lesbians at her church, but women from other churches are discovering her group. She currently has members from the Anglican, Presbyterian as well Pentecostal churches. Although the group is based in Accra, it is growing to be Ghana wide. They have not given the group a name, but come together once a month to pray and listen to each otherā€™s stories. With little support from their churches on the issues that their sexuality raises in society, the group has become their only means of support as they discuss and help each other on LGBT issues. They organize parties and social events, but have to be very discrete, so as not to incur the wrath of the authorities.

Rosebud thinks that in a homophobic society, ā€œthe churches should be the first places to welcome LGBT people, not persecute them.ā€ She commented that lesbians cannot immediately identify each other, ā€œpeople usually become friends first, and then when it is appropriate, a friend will ā€˜come out.ā€™ ā€She was not aware of the on-going Family Synod in the Catholic Church, explaining that in Ghana people only hear what the church leaders want them to hear. ā€œChurch matters are conveyed in an authoritarian manner as orders rather than issues up for discussion.ā€œ Although the Internet is available in Ghana, it is not cheap and frequent electricity blackouts make its use problematic for many people ā€” making international media unavailable to most.

Rosebud has a son who is 14-years old. She has brought him up a Catholic and feels strongly that the church should see her and her son as a normal family, despite the fact she is a lesbian. ā€œI know that God loves me. If I was standing face to face with any of the bishops who preach discrimination against LGBT people, I would look them in the eyes and tell them that I did not choose my sexuality.ā€ She believes that God made her gay and trying to change her sexuality is like changing the will of God.

Still in Ghana, I met Kelly, who identifies himself as a Christian Charismatic, bisexual man. Kelly let me record him, and concluded by telling me that he hopes support and education can be given to Ghanaā€™s LGBT community, and particularly education regarding blackmail. Blackmail of LGBT people is on the rise because of an increase in the use of gay dating websites. Sometimes people pretend to be LGBT online, setup a victim and then blackmail them for money. With unemployment on the rise, youths in Ghana are being driven to raise money in this manner and sometimes, even LGBT people have raised money in this way. Sometimes the Ghana police have gone undercover to trap and arrest LGBT people in a similar manner. He said that the decriminalization of homosexuality would be the best way forward to providing safety for LGBT people, but he has no idea how it can be achieved. He also thinks that education in areas of inclusive theology would be useful for the Ghanaian context.

Togo

Arriving in Togo was emotional for me, as this is a place I lived for many years, a place where I experienced much joy and also much sorrow. After settling into a guesthouse, I went to see the place where I was attacked in 2008. It had changed a lot.

LomĆ©, the capital of Togo, is a lively city, but the police there are particularly merciless when dealing with LGBT locals and tourists, especially during the recent period of presidential elections. However, the law against homosexuality is not very clear, although homosexuality can be punishable by 3āˆ’5 years in prison. Harassment and blackmail are on the rise.

Additionally, so Sheba (23), a Christian and a lesbian currently studying law in LomĆ©, there have been an increase in reports of men raping underage boys. These men are labelled gay, and the LGBT community become scapegoats for these crimes. Accusations of rape accompanied by blackmail are a common means of extorting money from rich locals and foreign tourists. Most LGBT people in Togo live in fear because they donā€™t want to be disowned by their family, so they go underground. In Togo, LGBT people are called by the abusive term ā€œadowe.ā€

Sadly, the biggest threat to the Togo LGBT community is the church and religious leaders. The Catholic Church is very powerful there, strongly influencing moral, political and other issues. Specifically the Catholic Church and its bishops are highly regarded by people of the country. She reflects that bishops and religious leaders in Togo frequently come on air to blame any mishap or natural disaster that happens in the country on homosexuals. Therefore, she would appreciate support and work with the LGBT community in the area of lobbying at the wider international/church level.

This anti-LGBT stance drives Catholics away from the Church. Edenedi, a bisexual woman who was baptized and brought up Catholic, is now worshiping in the charismatic faith. She feels she can no longer go to church on Sunday, sit down and listen to unchristian preaching about LGBT people. Despite this she still identifies herself as Catholic.

Because of her work as an activist, she is sometimes invited as a guest on radio or TV shows. When a priest or pastor is a fellow guest, they always say negative things against LGBT people such as ā€œhomosexuality is not the will of Godā€ and ā€œthose that indulge in it are living a sinful life.ā€ It upsets her as a Christian to hear such things coming from the mouths of people who should be representing the loving embrace of Christ.

LGBT people in prison face appalling discrimination. There are reports of rapes by fellow prisoners, and LGBT prisoners do not have access to treatment for HIV and AIDS. Prison chaplains have refused to administer communion to LGBT people in prison services, asking them to repent of their sin of being homosexual. Edenedi is presently negotiating with the prison authorities to allow LGBT prisoners access to condoms; she said they are refused because the authorities say LGBT people should not be having sex. Because of these problems, training of activists who will act as Christian counsellors, visiting prisons and supporting the community, is needed. ā€œChristian literature in French, which talks of an inclusive family and church, would be greatly appreciated here in Togo.ā€

Aziable is a well-known, prominent gay Catholic activist from Atapkame. Until recently, he was a knight of the church. Knighthood is an honour and invested upon those that the Bishop feels are actively contributing to the life of the diocese. Knights are charged by the church to utilize their potential for mission and evangelism. However, Aziable was dismissed from his knighthood once his sexuality became known. ā€œI will never leave the church because doing so is giving victory to my oppressors,ā€ he emotionally states. He feels that church leaders need help and education to understand properly the gospel that they are claiming to represent.

Benin

In Benin, I met with three people who identify as transsexuals and are also Christians from different backgrounds. They wanted to be interviewed together. Their words were heartfelt as they told me that all they wanted from the society and the church is acceptance. Benin does not have any anti-gay laws, but LGBT people are often disowned by their families, if their sexuality becomes known. People who are known to be LGBT are seldom employed.

The three explained that the Catholic Church, which is the dominant faith in the country and holds great power, influences social attitudes and fuels homophobic prejudice. The thing, which saddened me the most, was to hear that if a known homosexual dies, he or she is buried in a different cemetery from everyone else, a place where outcasts are buried. Marginalized and hated in life, marginalized and hated in death. The three interviewees wept as they spoke. One of them named Abib asked me to be honest in my reply and to tell them that if they died would they go to hell or heaven? “Priests say that transsexuals are demons in the kingdom of the devil.” This was very shocking for me to hear. In my years living in Nigeria and Togo I have heard much homophobia, and know well the negative attitudes of church and society towards gay people, but this priestā€™s words still shocked me. At this point I stopped interviewing them and spent the rest of our time together teaching and reassuring them of the unconditional love of Christ, and telling them that all baptized members of the church regardless of their sexuality, sex or gender identity are welcomed into the Kingdom of God.

Mary is a parent of a 21-year-old gay man living in Porto Novo. She is a practicing Catholic and told me that she knew that her son was different right from the age of 12. ā€œHe always wanted to play with girls and never with boys, loved wearing girlā€™s clothes and often told me he was a girl.ā€ Initially Mary was worried about his behavior and consulted her priest who advised her to give him time to grow up, but continue to pray for her son. She once was told by a fellow parishioner that her sonā€™s female behavior was because of a lack of a father figure in his life. This was so offensive to Mary that she reported it to her priest, but nothing happened as the priest agreed with what the parishioner had said. She feels angry about the attitudes of the church towards homosexuals and single parents. ā€œI love my church and my country, but I love my child more and I will do everything to protect him.ā€

Many LGTB people fear that their family will disown them if their sexuality was ever known. Many are subjected to pressure from their parents to get married and have children especially if they are the firstborn son. Dossou, a 39-year-old travel agent, is so concerned about this that he is currently trying to get a job in Nigeria where nobody knows him. He understands that Nigeria is also a difficult place to live if you are homosexual, but is not planning to come out any time soon. ā€œI want to stay in Nigeria, improve my English and then find a way to travel to Europe where I can be free to be myself.ā€ He feels that the church, which is supposed to be a place of hope, has taken the lead in discriminating against people like him. He ends by saying, ā€œI will always be a Catholic, just as I will always be a homosexual. I know that I am loved by God.ā€

Nigeria

My next journey was to Nigeria, and I had to be extremely careful at this stage of my journey for my own safety and security. It was not easy crossing the border of Benin and Nigeria since the Nigerian presidential election was coming up in few days time, so security was very high. I had wished to visit northern, southern and eastern Nigeria but could only visit Lagos, which is in the southwest. However I did meet and speak to people from all regions of the country as Lagos is the most diverse cultural city of Nigeria.

In Nigeria, the church and the government both persecute LGBT people. On the 7th of January 2014 the Nigerian president, Goodluck Jonathan, signed The Same Sex Marriage (Prohibition) Act into law. This act imposes lengthy prison sentences of up to 14 years on any person who attempts to enter into a same-sex marriage or civil union; who participates in a gay club, society or organization; or who makes a public display of affection with a person of the same sex.

Rashidi is a trained science laboratory technician and an unapologetic human rights advocate especially for persons marginalized on grounds of sexual orientation and gender identity. He was brought up as Catholic. The strict observance of religion and faith in his family led him to begin to study the Bible at an early age, but the experiences and realization of his sexuality made him more questioning of the scriptures. As a young man, he was scared he was going to be consumed by fire whenever he stepped up to the altar. He feared that his homosexuality would be revealed to the church and he would become an object of mockery amongst his peers. He remarked, ā€œMany homosexuals within the church in Nigeria still have those same feelings and are scared about people finding the truth of who they are.ā€

Rashidi expressed his anger over the Same Sex Marriage Act. Many LGBT Catholics in Nigeria were very disappointed to read in the press that The Catholic Bishops Conference of Nigeria made statements in support of the bill saying that the law was a ā€œstep in the right direction for the protection of the dignity of the human personā€. Rashidi angrily commented, ā€œI cannot understand how the church could support the persecutions of LGBT Nigerians and still call itself Christian.ā€ There had been an increase in violent attacks against Nigerian LGBT people since the bill was signed into law. Painful for him is the lack of pastoral care and support from the Nigerian Catholic Church towards its LGBT members. While the bishop pays ā€˜lip-serviceā€™ to human rights and equality, the Catholic Church does not seem to put these ideals into practice.

Rashidi followed the Catholic Family Synod through the international media. ā€œWhy the Catholic Church canā€™t be more like Christ to give everyone a place, I do not know,ā€ he muses. He hopes to see the Nigerian Catholic Church becoming more open and welcoming to everyone. While the priests and bishops in Nigeria are publicly opposing homosexuality, he asks, “Does this mean that there are no homosexual priests or bishops in the Catholic Church of Nigeria, or are they just too afraid to accept themselves and speak out the truth which is first and foremost their calling?” He would love to see brothers and sisters from Europe and other parts of the world visiting Nigeria, sharing their stories and supporting the LGBT of Nigeria in their journey of faith. ā€œWhat is needed most in Nigeria is material that teaches liberation theology,ā€ he concludes.

I also met Grace, a lesbian from Ojota. She is a Christian who discovered that she is a lesbian at a very young age. She is currently unemployed but does lots of voluntary work to support the LGBT community in Lagos. She is still very much in the closet but friends and family members often comment on how she dresses like a boy and behaves like a man. Her mother constantly reminds her that a womanā€™s place is under her husband and says she is praying for Grace to find a good husband. Since the passing of the anti-gay law in January 2014, Grace has become more careful. She recounts a story about an undercover policewoman who joined an online dating group to trap unsuspecting gay women. The policewoman met a female doctor who she subsequently reported to the authorities. The doctor lost her job and was forced to relocate outside of Nigeria. ā€œMany people are using the anti-gay law to blackmail people for money,ā€ Grace explains. In her eyes, Nigeria is a mob country where people are violently persecuted for being homosexual. She said, ā€œI believe [LBGTIs] are one family and I hope that the worldwide Catholic Church and all Christians will come to realise this truth too.ā€

For many LBGTI persons, the only source of information is the press, which, on most occasions, condemns homosexuality. This can lead to a feeling of self-loathing, an inferiority complex and often a feeling of inadequacy in LGBTs. The condemnation of homosexuality by state and churches as well as the fear of being outed force LGBTs to hide their real sexual identity for a long time. Cynthia was one such person. The acceptance of herself only started when she found an online-group for same gender loving women. Through this group of lesbians, she became aware that love is natural and the greatest commandment of Jesus Christ. She feels that most LGBT Nigerians donā€™t know the full component of the anti-gay law. ā€œThe damaging effects of the anti-gay law are ā€˜crazyā€™: gay bashing, suicide, blackmail, rape and more is on the increase against Nigerian LGBT people since that law came into effect,ā€ she explains. Cynthia wishes there was one bishop in Nigeria who was bold enough to stand up and challenge the church and government on their views and attitudes to homosexuality.

Cynthia explains, ā€œI am born and raised Nigerian, if there is anything Nigeria needs it is answers to why a nation so blessed with natural minerals resources, is lacking and dying in poverty. What Nigeria needs is good roads, steady electricity supply, good healthcare and good social services. The problem for the ordinary Nigerian is how to have a daily meal.ā€ In her eyes, the only people who are asking for anti-gay laws are politicians and religious leaders who are using LGBT Nigerians as a scapegoat for the problems in the country.
She asked to help drive education within the Nigerian LGBT Christian communities. This education should cut across spirituality, self and career development, and include legal and human rights. She wants LGBT Catholics from all over the world to keep close ties with the Nigeria LGBT Christians communities.

Conclusions

From the many interviews conducted, it has become clear that LGBT people in West Africa have a hard life. They are openly persecuted both by the state and the church and feel abandoned. It is sad to say that many LGBTs are “marginalized and hated in life and marginalized and hated in death.ā€

They fear to be excluded and disowned by their families when they come out. Unemployment and blackmailing are often mentioned problems, which turn sexual orientation into a cause for economic losses and poverty.

The anti-gay laws in these countries prevent constructive dialogue between the state, church and LGBTs. These laws are used as ammunition to justify persecution and the refusal of pastoral care and support by religious and community leaders. This isolates LGBTs and propagates fear, hatred and even violence against the LGBT community.

The Catholic Church in West Africa has not initiated the family debate in their churches and parishes. Church leaders are disconnected from reality about their LGBT members. In turn the LGBT members are ignorant of what is going on at the higher level of the Catholic Church both in their own countries and internationally.

Despite all of this, Catholic LGBTā€™s do not want to walk away from the Catholic Church. They want to be accepted, to be welcomed by the church, to have dialogue, and education. Above all, they want equality both in their personal lives and in their church to live in a nurturing environment not one of condemnation. They want to participate in the Family Synod discussions. They want to have a voice, to tell their stories, to relate their situations and to let the world know of their plight and their fight.

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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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