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Perez cites history of LGBT support in run for DNC chair

Obama-era official at DOJ, DOL turns attention to political organizing

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Tom Perez is running to become Democratic National Committee chair on an LGBT rights record (Blade file photo by Michael Key).

Tom Perez is running to become Democratic National Committee chair. (Blade file photo by Michael Key).

After high-level service in the Obama administration that included fighting for LGBT rights at both the Labor and Justice Departments, Tom Perez is lookingĀ to become the next Democratic National Committee chair.

In an interview Friday with the Washington Blade, Perez said in a crowded field of contenders his history of support for LGBT rights makes him the best candidate for the LGBT community.

“I have always fought for equality and opportunity for the LGBTQ community, and if I have the privilege of being elected, past is prologue, the best to judge what someone is going to do in the future is look at what theyā€™ve done in the past, and Iā€™m very proud of my history with partnership with the LGBTQ community because everybody in this country deserves to be treated with dignity,” Perez said.

Perez’s work on LGBT rights goes back as far as the 1990s, when as a former staffer for the late Sen. Edward Kennedy he said he drafted an initial version of the Matthew Shepard & James Byrd Hate Crimes Prevention Act and the Employment Non-Discrimination Act.

Working under the Obama administration as head of the Justice Department’s civil rights division, Perez testified before Congress in favor of ENDA and led an effort in which Anoka-Hennepin School District in Minnesota agreed to change practices to stop the anti-LGBT bullying it allowed in school.

As labor secretary, Perez was charged with enforcing President Obama’s executive order barring anti-LGBT workplace discrimination among federal contractors and interpreted an earlier order from President Lyndon Johnson prohibiting employment bias on the basis of sex to apply to transgender workers. Perez also extended federal benefits to same-sex couples, such as those under the Family & Medical Leave Act, in aftermath of the Supreme Court decision against the Defense of Marriage Act.

Also at the Labor Department, Perez hired Dylan Orr, who was the first openly transgender person to be appointed to a presidential administration and now works for the city of Seattle as director of the Office of Labor Standards.

Ed Murray, who’s gay and serves as mayor of Seattle, supports Perez and said the candidate’s background on LGBT rights is exactly what is needed at the DNC.

“Secretary Perez has been a strong partner and advocate on LGBTQ issues,” Murray said. “It is critical that our Democratic Party leader be able to stand up for the needs of the LGBTQ community, and build a national coalition that will continue to protect the civil rights of all in the face of discrimination.”

The election for chair is set to take place Saturday during the DNCā€™s winter meeting in Atlanta.

Here’s the full interview between Perez and the Washington Blade:

WASHINGTON BLADE: Can you tell me what you have to offer the DNC that other candidates arenā€™t offering?

TOM PEREZ: I think the DNC chair needs to be someone who knows how to take the fight to Donald Trump, knows how to win fights, knows how to talk to every stakeholder in our big tent and has a proven track record as a turnaround specialist. The DNC is suffering from a crisis of confidence, a crisis of relevance, and itā€™s a complex organization, and it needs a leader who can turn it around.

Thatā€™s what Iā€™ve done at the Department of Labor; itā€™s what Iā€™ve done at the Department at Justice beforehand. Taking organizations with a critical mission that werenā€™t firing on all cylinders and making sure that we got the best of out of those organizations.

Thatā€™s what Iā€™ve done there. Thatā€™s what I hope to do as the head of the DNC is make sure we are putting our values into action, and we our values into action by among other things turning around this big ship that I think needs a lot of transformation. Thatā€™s how we succeed.

BLADE: Youā€™ve been endorsed by Steny Hoyer and Joe Biden. A lot of a people would say youā€™re the establishment candidate in the race for chair. How would you respond to that characterization?

PEREZ: This is one of the first times Iā€™ve heard of the farm workers referred to as establishment. Theyā€™re supporting me. The UFCW is supporting me, a number of other labor unions are supporting me.

I think itā€™s really important, Chris, to avoid labels and look at the substance of what people have done. I spent my entire life fighting for marriage equality. I worked for Sen. Kennedy in the ’90s when he was one of the lonely voices against the Defense of Marriage Act, then I fought at the Justice Department to make sure we didnā€™t defend it.

I took Wall Street on, negotiated two of the largest fair lending settlements in history of the Fair Housing Act. We took on bullying in the public schools in Anoka-Hennepin on behalf of LGBTQ young students. And we took a lot of grief for that, but we took that fight on. We took on the fight of police reform and negotiated more police consent decrees with police departments with my tenure as the Justice Departmentā€™s head of the civil rights division than had been in the preceding 15 years history of the statute.

So, when you look at the fights Iā€™ve done and you move away from labels, I think the evidence is pretty clear that Iā€™ve taken on some pretty important fights on behalf of long-established principles of the Democratic Party, the principles of inclusion, the principle that every deserves a fair shake and the principle of economic security ā€” that if you work hard and play by the rules you can punch your ticket to the middle class. And Iā€™ll hold my record of accomplishment on these long-established goals and values and principles of the Democratic Party up against anyone.

BLADE: You say youā€™re 44 votes short of getting a majority of the delegates to win the race for DNC chair. How do you envision claimingĀ victory in Atlanta?

PEREZ: Well, that was as of two days ago. So, every day since we reached that mark, we keep moving forward. And Iā€™m out in Chicago right now, was in West Virginia, Pennsylvania yesterday and Iā€™ll be in Iowa later today. And Iā€™ll be criss-crossing the country between now and next week. A lot of undecided voters out there, and weā€™re taking our case directly to them and thatā€™s what grassroots campaign are about, making house calls.

Thatā€™s what the Democratic Party needs to do more of in order to make sure weā€™re winning seats from school board to state houses across this country is make house calls. Thatā€™s what Iā€™m doing and Iā€™m learning a lot on my visits with various people around the country.

BLADE: As chair of the DNC, youā€™ll be doing a lot of political organizing for the upcoming elections. There was a lot of discussion as to why Hillary Clinton lost the last one. Why do you think Hillary Clinton lost the election?

PEREZ: First of all, itā€™s important to remember that she did win the popular vote and there were a lot of factors that led to her not crossing the electoral finish line. Certainly, the Russian hack had something to do with it. Certainly, the Comey letter had something to do with it. And certainly there were mistakes that were made that were absolutely critical, and these were mistakes that have been occurring, frankly, for a number of election cycles.

We have to make house calls. All too frequently now, Democrats across the board have relied on paid analysts to the exclusion of that on-the-ground, 12-month-out-of-the-year organizing presence.

So in places like Milwaukee, we underperformed in Milwaukee, in places like Wisconsin where Romney got more votes in 2012 than Trump in 2016, we underperformed because we didnā€™t do enough to talk to people both in the Milwaukee area and frankly in the rural parts of the state. I did a visit to rural Wisconsin about a week or so ago, and what I heard directly from people is that we feel ignored. Many people in Michigan felt ignored.

And the Democratic Party abandoned its 50 state strategy a number of years ago and weā€™ve ignored whole swaths of zip codes, and weā€™ve got to change that. That wasnā€™t something that simply began in 2016, thatā€™s something thatā€™s been going on for some time. And so, the 57-state strategy of organizing in every zip code ā€” not just the states, but the territories and the District of Columbia. Itā€™s all about making sure weā€™re making house calls again, itā€™s all about getting back to basics, organizing, organizing and organizing.

The Republicans won Florida in no small measure because after they lost for the second consecutive time to President Obama in 2012, they embarked on a joint venture between the RNC, the Koch brothers and mostly the Southern Baptist Church, and it was a four-year, 12-month-a-year grassroots campaign to identify their voters and they identified roughly 125,000, 130,000 [voters] ā€” and that was the difference in the 2016 campaign. Weā€™ve got to do the same thing.

Our values are solid. We didnā€™t lose this election because we have the wrong values. Our values of economic opportunity, good jobs, middle-class security and inclusion and opportunity for everyone ā€” those are timeless values of the Democratic Party. So what we have to do is get back to basics and make sure weā€™re building those strong parties, weā€™re talking to people, weā€™re communicating a consistent message and many people didnā€™t people didnā€™t hear a message sufficiently about the Democratic Party.

And again, itā€™s not just what happened in the presidency that I ask, itā€™s what happened over the last eight years when we lost over 900 seats in state legislatures. That wasnā€™t Hillary Clintonā€™s doing. That was the doing of, I think, a number of systemic mistakes that the party has made, and what Iā€™m all about is getting back to our grassroots organizing everywhere. Supporting the development of strong state parties, making sure that weā€™re supporting candidates from the school board to the Senate. Iā€™ve been talking recently with Democratic attorneys general about how we can support them. Iā€™m meeting with secretaries of state tomorrow.

Weā€™ve got to run candidates up and down the ticket. Weā€™ve got to support them. Iā€™m optimistic we can do this because, I think, in the aftermath of the election of Donald Trump, millions of Americans have awakened to the reality that he does not stand for their values.

BLADE: Whatā€™s your plan for LGBT issues at the DNC?

PEREZ: My plan is what my plan has been for the last 25 years of being a civil rights lawyer and a labor rights lawyer: To continue to make sure that the LGBT community has a meaningful seat at the table.

Thatā€™s what I did when I when I worked with Sen. Kennedy. Thatā€™s what I did at the Justice Department. When I worked with Sen. Kennedy, I was one of the staffers who wrote the original version of what became the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act. I started working on that back in ā€™95.

When I went to the Civil Rights Division, the first hearing I testified at was the Employment Non-Discrimination Act, the bill that I worked on with Sen. Kennedy. When I was back at the Civil Rights Division in 2009, the work we did on bullying, especially the Anoka-Hennepin case was a landmark because we hadnā€™t done a bullying case at the Department of Justice involving the bullying of LGBTQ communities, and when I got to the Labor Department, making we sure that we expended the reach of the landmark executive order, the anti-discrimination order from the 1960ā€™s relating to discrimination by federal contractors that didnā€™t protect the LGBTQ community, and we changed that. It was incredibly important.

So, throughout my life, I have always fought for equality and opportunity for the LGBTQ community and if I have the privilege of being elected, past is prologue, the best way to judge what someone is going to do in the future is look at what theyā€™ve done in the past and Iā€™m very proud of my history with partnership with the LGBTQ community because everybody in this country deserves to be treated with dignity, and I have personally been involved in hate crimes cases where somebody was brutally assaulted or murdered simply because of their gender identity or sexual orientation. And that has no place in the American fabric. None whatsoever. So Iā€™ve seen the impact of discrimination firsthand in the work that Iā€™ve done and itā€™s part of my DNA.

BLADE: In terms of structure, how do youĀ envision getting LGBT people to have ā€œa meaningful seat at the tableā€ at the DNC?

PEREZ: Well, Earl Fowlkes is a very strong leader of the caucus and I certainly would continue our work there. WhatĀ I learned from talking to current voting members in the DNC is that they feel under-utilized. Theyā€™re not alone. Itā€™s not just LGBTQ members of the DNC that feel under-utilized.

When I talked at the outset, you asked why am I uniquely qualified, or why do I think Iā€™m uniquely qualified. This organization, the Democratic Party, the DNC needs culture change. Thereā€™s a command-and-control structure right now. People with tremendous talent, weā€™re not making use of those talents. There are so many members who are chronically under-utilized. We donā€™t ask for their opinions. We donā€™t engage them. And with the activism out there right now, with all the movements that are being established, many just are simply organic movements. Itā€™s more important than ever that we make use of our caucuses, including, but not limited to, the LGBT caucus.

One of the promises Iā€™ve made to every member is you will not feel under-utilized. When I got to the Labor Department, we were second from the bottom on best places to work in the federal government. And when I left, we were in the top third, including two years in a row where we were the most improved federal agency. I understand a bit on how to change culture and agencies. How to take a complex organization and ensure that itā€™s firing on all cylinders. One very important aspect of that is making sure you make the best use of your talent.

How often have you seen in the world of sports a team with talent thatā€™s not performing to its potential because itā€™s coaching leadership is moving the ball down the field? We need to make sure we have a coach who can move the ball down the field, engage and make sure everybodyā€™s included, everybody is being used to their highest and best talents, and thatā€™s what I want to do.

And I want to make sure that we have ā€” Iā€™m a big believer in what I call diversity and inclusion. Itā€™s not simply we got to have X number of members of the DNC who are LGBT. People have to be included in a meaningful way. Diversity is being invited to the dance, but inclusion is being asked to dance, and we need to make sure everybody at the DNC ā€” these are talented people with a great record of accomplishment. But itā€™s remarkably saddening and maddening to me that theyā€™re under-utilized.

BLADE: What role, if any, would President Obama have at a Perez-run DNC?

PEREZ: First of all, I think, the president is going to go down in our nationā€™s history as one of the most impactful presidents in our history. The work that he did for the LGBTQ community especially, but not exclusively, was landmark from the repeal of ā€œDonā€™t Ask, Donā€™t Tellā€ to marriage equality and so many other aspects. And I know President Obama is going to stay involved because he cares very deeply about the ideals and values of the Democratic Party.

And, frankly, a big part of the work of the DNC right now is to protect his legacy because the Affordable Care Act is not a job-killer, itā€™s a life-saver, and people are starting to realize how important the Affordable Care Act is as Republicans attempt to repeal it, and we have to make sure we fight that. And I know President Obama is going to be fighting side-by-side.

It was an honor of a lifetime to work with him and I am confident that he is going to be a strong supporter of our efforts to ensure that the Democratic Party is firing on all cylinders.

BLADE: Letā€™s talk about some recent news related to your old job as labor secretary. What do you make of Andrew Puzder withdrawing his name from consideration and President Trump nominating Alexander Acosta?

PEREZ: Well, Andrew Puzder was unqualified and unsuited for the job. He had a lot of experience with the Department of Labor. I have to acknowledge that, but it was bad experience. He was a chronic defendant in wage and hour and other employment actions. His whole philosophy is to profit off of the hard-earned labor of low-wage workers. His called his own workers ā€œthe worst of the worst.ā€ And he was just unsuited for the job, and not only did Democrats understand that, but because of advocacy of so many in the us, Republicans started to understand this guy was bad news.

And so, the withdrawal of that nomination is a very good example of the power of organizing. People talked about, well, Tom, you donā€™t have the White House, you donā€™t have the Senate, you donā€™t have the House. We have something far more important because while January 20 was undeniably important and we lost some levers of power, January 21 and beyond was far more important because the American people in the millions are rising up and saying to Donald Trump, ā€œAndrew Puzder doesnā€™t stand for our values, Andrew Puzder is antithetical to who we are. You are the president, but you donā€™t stand for our values, you didnā€™t win the popular vote and youā€™re the most unpopular president entering office in our nationā€™s history. And weā€™re going to keep fighting.ā€ And I think the Puzder fight is a great example.

I am going to study the record of Mr. Acosta. I havenā€™t studied it enough, so I think itā€™s important to make sure that Iā€™m studying the record before I offer any opinions. I can say that I studied the record of Mr. Puzder very, very carefully, and he was categorically unsuited for the job. So, frankly, Iā€™m relievedā€¦The day before yesterday was a good day for working people with the withdrawal of that.

But itā€™s another illustration of this ā€œChaos Cabinet.ā€ Lt. Gen. Flynn is an abject danger to our national security, and his resignation is the tip of the iceberg. We need to an independent counsel to take a look at that, and the notion that Jeff Sessions is an independent person to look at what criminal activity Flynn was involved in and who else with him, thatā€™s quintessential fox guarding the hen house. They were out on the campaign trail for Trump, so we go to make sure that thereā€™s something, that thereā€™s an independent counsel or commission thatā€™s looking at this because this is serious stuff what this president has done.

Itā€™s clear that he was involved during the campaign in contact with the Russians. Thatā€™s outrageous. And if Hillary Clinton had won this election with help from Vladimir Putin, they would have already drafted articles of impeachment. They had 15 hearings on Benghazi, and now so many of them have a sock in their mouth on this issue. Itā€™s rank hypocrisy.

BLADE: Despite all the things that President Trump has done, one thing that the White House has said is that he is going to keep the Obama-era executive order barring LGBT discrimination among federal contractors in the workplace. Do you think thatā€™s a good thing and how confident are you that heā€™s going to keep to that promise?

PEREZ: I have no confidence in anything that this president says. Look at who he just nominated for the Supreme Court. If Iā€™m someone who cares about labor unions, if Iā€™m someone who cares about womenā€™s reproductive health, if Iā€™m someone who cares about LGBTQ equality, marriage equality, this nominee is trouble with a capital ā€œT.ā€

And this president has started this administration by going after all of our allies and one thing I learned from working with my colleagues and friends in the LGBT community is that we are all together in coalition. I think we are all under assault because he has made our nation less safe, heā€™s made our democracy less than the envy of the world. Weā€™re the laughing stock of the world. His assaults on immigrant rights, his assaults on refugee rights, his nominations, thereā€™s nothing but trouble ahead.

NOTE: This interview has been edited for length.

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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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