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Valerie Jarrett: ‘Be brave, be vigilant, continue to speak out’

Top Obama adviser on eight years of LGBT progress and what’s next

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Valerie Jarrett, Victory Fund National Champagne Brunch, gay news, Washington Blade
National Champagne Brunch, gay news, Washington Blade

Senior White House Adviser Valerie Jarrett gives the keynote address at the 2016 Victory Fund National Champagne Brunch. (Washington Blade photo by Michael Key)

The Obama administration is coming to an end after eight years of historic gains for LGBT rights, including “Don’t Ask, Don’t Tell” repeal, an executive order barring anti-LGBT discrimination in the workforce and the U.S. Supreme Court decision in favor of same-sex marriage — just to name a few highlights.

Overseeing those achievements from the very beginning of the Obama administration to the upcoming end on Jan. 20 — and in many cases coordinating the behind-the-scenes efforts for those initiatives — was Senior Adviser to the President Valerie Jarrett. As head of the White House Office of Public Engagement & Intergovernmental Affairs, Jarrett was responsible for leading the efforts to advance LGBT equality within the Obama administration.

Reflecting on that progress under President Obama during an exclusive interview with the Washington Blade in the West Wing of the White House, Jarrett said LGBT achievements will “quite prominently” figure into Obama’s legacy after he leaves office.

“One of my favorite quotes is Martin Luther King Jr.’s quote where he says the arc of the moral universe is long, but it bends towards justice,” Jarrett said. “And I think that a lot of hard work happened to promote LGBTQ equality before the president took office, but under his watch, it felt like a thunderbolt, and for that the president is extraordinarily proud.”

Although there is widespread fear among many LGBT people that President-elect Trump could undo that progress, Jarrett is skeptical that Trump can reverse the changes because “the progress that we’ve made isn’t simply reflected in the laws that have been passed, although they are very important.”

“What we’ve seen is a shift in public perception and feelings and culture,” Jarrett said. “That is not likely to reverse. And fortunately on issues such as marriage equality, the Supreme Court has ruled and that is unlikely to change.”

Jarrett, 60, said she feels “pretty secure” about changes in the law like the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act, which she said she hasn’t heard anyone question, and “Don’t Ask, Don’t Tell” repeal, which she said “is the law of the land and that has been fully embraced by the Department of Defense.”

But as Republicans gear up to repeal the Affordable Care Act, Jarrett said she has “reason to worry” that protections under the law afforded to LGBT people and others will be undone. Jarrett acknowledged the law’s prohibition on discrimination on the basis of sex, which the Obama administration applied to LGBT people, is one such protection, but said the benefits go beyond that.

“I also think that there are many people in the LGBTQ community who didn’t have health insurance and under the Affordable Care Act, they are among the 20 million-plus who now do,” Jarrett said. “As we have been encouraging enrollment, we have, among other groups, have really reached out to the LGBT community to ensure that they are aware of the benefits that come from health insurance and have been encouraging them to sign up during this last enrollment period during the president’s time in office.”

As those enrollment numbers continue to grow, Jarrett said she’s hopeful “that creates additional disincentive to take important benefits from the American people.”

Jarrett said the Trump transition team hasn’t given her any indication about how the upcoming administration might handle LGBT rights. Jarrett declined to comment on whether the Trump team’s lack of discussion of LGBT issues is a good sign.

LGBT advocates have lauded Jarrett and say she was instrumental in coordinating LGBT achievements under eight years of the Obama administration.

Chad Griffin, president of the Human Rights Campaign, was among those who praised Jarrett.

“Valerie Jarrett’s leadership inside and outside of the White House has been central to advancing our progress under the most pro-equality administration in history,” Griffin said. “She has always been willing to work with us and to fight for us. We could not have had better partners in the West Wing than Valerie and President Obama.”

‘America is at its best when all Americans are treated equally’

Did Obama always believe LGBT rights was a priority for his administration, or did his level of commitment increase over time? After all, Obama didn’t publicly support marriage equality until 2012. Jarrett insisted Obama was committed to advancing LGBT rights from his presidential campaign throughout his White House tenure.

“I think the president came into office with the basic belief that America is at its best when all Americans are treated equally,” Jarrett said. “That includes treating Americans equally no matter who they are and who they love, what their gender identity might be. And we have worked over the course of the last eight years on a whole range of fronts to try to ensure that equality.”

On “Don’t Ask, Don’t Tell,” Jarrett said Obama made a 2008 campaign promise to repeal the law and it was “very important to him to honor that campaign commitment.” For Obama, Jarrett said members of the armed forces who are LGBT and “prepared to make the ultimate sacrifice for their country deserve to be able to be honest and open about who they are and who they love, so that was very important to him.”

Recalling Obama signing the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act in 2009, Jarrett said the president “cared deeply about” a federal hate crimes law and recalled time spent with Judy Shepard, the mother of gay college student Matthew Shepard who was murdered near Laramie, Wyo., because of his sexual orientation.

When former U.S. Attorney General Eric Holder declared in 2011 the Obama administration would no longer defend the anti-gay Defense of Marriage Act in court, Jarrett said Obama “fully supported the Justice Department’s decision,” and when the U.S. Supreme Court decision against the law came down in 2013, ordered a review to ensure spousal benefits would flow to married same-sex couples to the greatest extent possible under the law.

“It was something the president directed from the top on down to make sure we did that as throughly and as completely as possible,” Jarrett added. “It was very important to him.”

But Jarrett acknowledged that LGBT advocates in some cases took the lead in coming to the administration with ideas, such as seeking guidance ensuring transgender students have restroom access consistent with their gender identity.

“That was an issue that advocates brought to us, and when they did, it seemed obvious it seemed something we should do,” Jarrett said. “And I would say we — through our Office of Public Engagement — have had extensive outreach and engagement for the LGBTQ community with the intent of making sure that our priorities reflected their priorities. And as you look back over the last eight years and the progress we’ve made, I think that there is unification of interest there.”

One issue that LGBT advocates criticized the administration for not tackling sooner was the executive order barring federal contractors from engaging in anti-LGBT workplace discrimination. Obama signed the order during his second term in 2014, but that was after years of activism from the LGBT community.

Jarrett attributed the delay in the executive order to the weak economy during Obama’s first term after the 2008 financial crisis, saying the administration during the first term was “reluctant at that point to add additional requirements of any kind, frankly, and we were just at that point, our priority was getting the economy back on track.”

“After the president took office and the economy was in such disarray, in such weak condition — we were cautious about the president signing any executive orders affecting the business community early on, but as the economy began to become more robust, the president looked at both discrimination against the LGBT community, ensuring that contractors were paying equally,” Jarrett said.

Jarrett also said the administration needed to have a groundwork in place before the executive order was handed down, which consisted of surveying the business community as well as collaborating with LGBT advocates and faith organizations about what form the directive would take.

Asked about criticism during the early days of the Obama administration that advances on LGBT rights generally weren’t happening quickly enough, Jarrett said leg work was needed for actions across the board, such as “Don’t Ask, Don’t Tell” repeal.

“While we were working on the economy, Brian Bond, who worked here, for example, did extensive outreach to the community,” Jarrett said. “The president engaged the military and did a survey of its members, working on exactly the parameters of how exactly repeal of ‘Don’t Ask, Don’t Tell’ would work. So, a lot of the work required spade work that laid the foundation for the progress we made.”

Some of this early discontent came in the form of the LGBT march on Washington, activism by GetEQUAL and Dan Choi chaining himself to the White House fence in protest over “Don’t Ask, Don’t Tell.” Jarrett said “it’s always healthy to have the public engaged” when asked if those demonstrations against Obama were effective or whether changes those activists were seeking would have happened anyway.

“They should always advocate for their interests,” Jarrett said. “And it’s our responsibility to listen to all those voices and then do what we think reflects the values of our country, and that’s why I’m so proud of the president’s track record because, in the area of civil rights of the LGBT community, it’s a good example of where advocates pushed hard up on an open door. But that doesn’t mean that they shouldn’t push. They should always push. But our door was open.”

Valerie Jarrett, Freedom to Marry, gay news, Washington Blade, gay marriage, same-sex marriage, marriage equality, Obergefell v. Hodges

White House Senior Adviser Valerie Jarrett spoke at a Freedom to Marry reception at the law offices of Holland & Knight on April 27, 2015. (Washington Blade file photo by Michael Key)

The most memorable day at the White House, Jarrett said, was June 26, 2015, when the U.S. Supreme Court ruled in favor of marriage rights for same-sex couples nationwide. Jarrett said she was the one who informed Obama about the ruling that morning as he was completing his eulogy for Rev. Clementa Pickney, who was among the victims of the mass shooting at a Charleston church.

“We spent the morning traveling to Charleston for the funeral for Rev. Pickney and the other eight who were killed that day,” Jarrett said. “And it was a strange juxtaposition of emotion where we were so elated that the Supreme Court ruled the way that it did. We weren’t even expecting the decision that day. We thought it would be the following week, so it was a gift coming early.”

Jarrett recalled the White House, under the coordination of strategic communications adviser Jeff Tiller, was lit the evening of the decision in rainbow colors to express solidarity with LGBT people. That night, Jarrett said she spent two to three hours on the North Portico as the lights went up along with White House staff “who stayed watching the sun go down and the colors of the White House popping into a more brilliant color.”

“That photograph, which Jeff recognized at the time, would be one that helped define the president’s legacy and would be iconic around the world and, in fact, it turned out to be just that,” Jarrett said.

The worst day? Jarrett contrasted the time after the ruling for marriage equality to the weekend in 2012 after a gunman killed 20 children and six adults at Sandy Hook Elementary School in Newtown, Conn.

“I still remember being in the Oval Office when the president heard the number of children that were killed and I could not process the number 20, and then when I found out how old they were, it was just unimaginable,” Jarrett said. “And then two days later I travelled with the president to Newtown, where he greeted the individual family members and first responders and spoke at the memorial service. And it was absolutely the worst day since I’ve been here.”

One item left undone for LGBT rights that Jarrett said she wished the Obama administration could have achieved is ensuring the U.S. Justice Department’s assertions about transgender rights remain intact.

Jarrett said the administration is “disappointed” by Judge Reed O’Connor’s nationwide injunctions this year against the Obama administration’s guidance assuring transgender students have access to school bathrooms consistent with their gender identity and the Department of Health & Human Services rule prohibiting discrimination against transgender people in health care.

“Having welcomed many transgender children here at the White House and seen how unnecessarily hard we make their lives — when I say ‘we,’ I don’t mean we at the White House, just to be clear, we the greater society — I think we have to do everything we can to make sure that every child has a chance to grow and achieve their dreams without discrimination or stigma and to be who they are,” Jarrett said. “And I think that although we have made progress in that area, we’re not as far along as a society as I wish we were.”

Mara Keisling, executive director of the National Center for Transgender Equality, said even with those setbacks, Jarrett and the Obama administration have been great allies and accomplished a lot for transpeople people.

“The most helpful thing in advancing trans rights in the Obama administration was that the president himself was deeply committed to doing the right thing, and his senior people, including Valerie Jarrett, were tremendously forward in moving things along,” Keisling said. “Valerie Jarrett in particular was always supportive, always interested, always available and she always cared. She is somebody who cares about people and wants to do good policy, and it showed for eight years.”

Another piece of unfinished business is affirming the legal theory that federal laws prohibiting discrimination based on sex, such as Title VII of the Civil Rights Act, also bar sexual orientation discrimination. Although the U.S. Justice Department has asserted those laws apply to transgender people, it has not asserted that for gay, lesbian and bisexual people.

With court cases asserting sexual orientation discrimination is illegal under current law proceeding through the judiciary, Jarrett said “when things go through litigation, we leave it to the Justice Department.”

“But I will say obviously the president believes that we should not discriminate. Period,” Jarrett said. “Our society is better when we’re inclusive and we recognize that we should be treating everybody equally.”

Asked why the Justice Department hasn’t made the formal assertion that anti-gay discrimination is prohibited under laws barring sex discrimination, Jarrett said, “You’ll have to put that question to the Justice Department. I can’t speak for them.” For years, the Justice Department has had no comment in response to the Washington Blade’s requests to comment on whether the sex provision in Title VII bars anti-gay bias.

‘You have to be vigilant’

After leaving the White House, Jarrett said her first priority is “going to sleep,” then figuring out plans for the future. Whatever the next days hold, Jarrett said she’ll “always speak out about the importance of equality.”

“As the president has said quite often lately, he now will assume the most important office of all — and that’s the office of citizen,” Jarrett said. “And it’s one that I now have, and so for the rest of my life, I think part of our responsibility as citizens is to fight for everyone to be treated the same.”

As for whether Obama will continue to be an LGBT advocate after leaving office, Jarrett said the LGBT community hasn’t seen the last of him.

“Not only will he advocate for equality, but he will encourage other Americans to get involved and join that important effort because our society is only as good as we make it,” she said.

What is the Obama administration’s message to members of the LGBT community who fear a Trump presidency? For Jarrett, the plan is simple: “Be brave, be vigilant and continue to speak out.”

Jarrett drew on Obama’s 2012 endorsement of marriage equality in an interview with Robin Roberts after years of evolution as an example of why personal stories can be effective.

“The president when he talked to Robin Roberts about his evolution on marriage equality told a story about his daughters who have friends whose parents are gay and his daughters couldn’t see any difference in why their friends’ parents would be treated any differently than their own parents, and he didn’t have an answer to that,” Jarrett said. “And so, the answer is, there should be no difference.”

With an uncertain time ahead, Jarrett said those are exactly the kinds of stories that can be effective because “if we continue to tell those stories, it helps people put themselves in the shoes of someone else.”

“And it is through that exercise that I think we make our best progress because it’s a change in society, not just simply a change in laws,” Jarrett concluded. “And when society is moving in a direction with momentum, it’s very hard to turn it back, but that doesn’t mean you shouldn’t be vigilant. You have to be vigilant.”

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Honoring the legacy of New Orleans’ 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 Orleans’ 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, “United We Stand” by the Brotherhood of Man. 

“United we stand,” the men would sing together, “divided we fall” — the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to today’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 — 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: “Some thieves hung out there, and you know this was a queer bar.” 

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 “help our bereaved brothers and sisters” — and shatter officialdom’s code of silence. 

Perry broke local taboos by holding a press conference as an openly gay man. “It’s high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,” 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. 

“This fire had very little to do with the gay movement or with anything gay,” Esteve told a reporter from The Philadelphia Inquirer. “I do not want my bar or this tragedy to be used to further any of their causes.” 

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

“Phil said the cash register, juke box, cigarette machine and some wallets had money removed,” recounted Esteve’s friend Bob McAnear, a former U.S. Customs officer. “Phil wouldn’t report it because, if he did, police would never allow him to operate a bar in New Orleans again.” 

The next day, gay bar owners, incensed at declining gay bar traffic amid an atmosphere of anxiety, confronted Perry at a clandestine meeting. “How dare you hold your damn news conferences!” 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. “Reverend Troy Perry awoke several sleeping giants, me being one of them,” 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 story’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 — some with visible burn scars — gathered but were discouraged from singing “United We Stand.” 

New Orleans cops neglected to question the chief arson suspect and closed the investigation without answers in late August 1973. Gay elites in the city’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, “Where are the gay activists in New Orleans?,” Esteve responded that there were none, because none were needed. “We don’t feel we’re discriminated against,” Esteve said. “New Orleans gays are different from gays anywhere else… Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.” 

(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 — with the exception of a few sanctuaries for gay political debate such as the local lesbian bar Charlene’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: “A tragedy that, as far as I know, no good came of.” 

Finally, in 1991, at Stewart Butler and Charlene Schneider’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 — more than 18 years after the fire. 

“I believe the fire was the catalyst for the anger to bring us all to the table,” Schneider told The Times-Picayune, a tacit rebuke to Esteve’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. What’s left is an enduring story that refused to go gently. The story now echoes around the world — 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 past’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 — and how, 50 years onward, it became known internationally — 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 — in the spirit of voices who once gathered ‘round a white baby grand piano and sang, joyfully and loudly, “United We Stand.” 

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

Robert W. Fieseler is a New Orleans-based journalist and the author of “Tinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.”

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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 — 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 — whether or not either party is personally aggrieved and able bring to a lawsuit — 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. Colorado’s own cases agree that the government may not use public-accommodation laws to affect a commercial actor’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 Smith’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.

“I’m honored and ready to lead HRC — and our more than three million member-advocates — as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,” Robinson said. “This 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 — and today I am making a promise and commitment to carry this work forward.”

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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