Connect with us

homepage news

State LGBT groups split on ENDA’s religious exemption

Four equality orgs now say they won’t back current version of federal bill



ENDA, Employment Non-Discrimination Act, religious exemptions, gay news, Washington Blade
GetEQUAL, Employment Non-Discrimination Act, ENDA, gay news, Washington Blade, religious exemptions

State LGBT groups are split on support for ENDA and its religious exemption. (Washington Blade file photo by Michael Key)

A number of statewide LGBT groups this week expressed concerns about the religious exemption in the Employment Non-Discrimination Act. Four groups — FreedomOhio, Equality New Mexico, the Transgender Education Network of Texas and Wyoming Equality — now say they won’t support the bill with the current exemption.

Amber Royster, executive director for Equality New Mexico, said her organization won’t support the version of ENDA pending before Congress with the current religious exemption.

“We do not support the proposed religious exemption,” Royster said. “Thus, we do not support the current version of ENDA. We hope our elected officials will see this religious exemption for what it is — a license to discriminate against LGBT people — and decide to remove it.”

Donna Red Wing, executive director of One Iowa, also expressed concerns about the religious exemption and called more conversations about it. The organization wouldn’t outright say it no longer supports the version of ENDA pending before Congress.

“When we move to a place where a religious body can freely discriminate against a staff person in a non-ministerial/non-religious position — a janitor or groundskeeper, for instance — that is problematic,” Red Wing said. “Other protected classes do not have this added burden. One Iowa feels there needs to be more conversation around the nuances and the potential harm of this exemption.”

The Washington Blade polled more than 50 state LGBT groups this week on their position regarding ENDA with its current religious exemption. The language would continue to allow religious institutions, like churches or religious hospitals and schools, to discriminate against LGBT workers in ministerial and non-ministerial positions even if the bill were to become law.

The religious exemption in ENDA is broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.

The most common response from statewide LGBT groups — including Equality Illinois and Equality California — was that they continue to support ENDA, but oppose or have concerns about the bill’s religious exemption.

Including Equality Illinois and Equality California, 15 groups shared that view, including: Equality Alabama, Equality Florida, Equality Hawaii, Gender Rights Maryland, MassEquality, Outfront Minnesota, Equality Missouri, the New York-based Empire State Pride Agenda, Equality North Carolina, Basic Rights Oregon, the Tennessee Equality Project, the Tennessee Transgender Political Coalition and the D.C.-based Gay & Lesbian Activists Alliance.

Dana Beyer, who heads Gender Rights Maryland, noted current political realities in Congress when explaining her organization’s position in support of the legislation.

“We support the current ENDA,” Beyer said. “We also welcome the efforts being made to revise and narrow the exemptions, and hope that those efforts make it more likely that the House will pass the bill that has already passed the Senate. In an ideal world we’d have the same religious exemptions as Title VII, but it’s, unfortunately, no longer 1964.”

Four groups — FreedomOhio, Equality New Mexico, the Transgender Education Network of Texas and Wyoming Equality — said they won’t support ENDA with the current religious exemption in place, while three others — Equality Delaware, the Kentucky-based Fairness Campaign, One Iowa, and the Missouri-based PROMO — didn’t offer an official position on ENDA, but expressed concerns about the bill’s religious exemption.

A total of 11 groups had no comment or no immediate comment on ENDA: One Colorado, the Louisiana-based Forum for Equality, Equality Maryland, Equality Michigan, Equality Ohio, Equality Pennsylvania, South Carolina Equality, Equality Virginia, Vermont Freedom to Marry Task Force, Fair Wisconsin and Fairness West Virginia.

Groups that didn’t respond altogether were Alaskans Together for Equality, Equality Arizona, Georgia Equality, Indiana Equality, Equality Maine, Garden State Equality, the Oklahoma-based Equality Network, Equality South Dakota, Equality Texas, Equality Utah and Equal Rights Washington.

A number of national LGBT groups — including the Human Rights Campaign, Freedom to Work, the National Gay & Lesbian Task Force, the American Civil Liberties Union, the National Center for Transgender Equality, Lambda Legal — have said they continue to support ENDA because of the LGBT non-discrimination protections it affords despite any concerns about the religious exemption. But two legal groups — the National Center for Lesbian Rights and the Transgender Law Center — have dropped support for the bill altogether.

Many of these state equality groups are dependent on or have affiliations with national LGBT groups that are continuing to push for passage of the current version of ENDA. For example, the Human Rights Campaign is partnering with Equality Alabama as part of its $8.5 million, three-year investment in the Project One America initiative in the South.

Additionally, Beyer was named chair of the advisory board for Freedom to Work, a national group pursuing passage of ENDA in Congress that has touted the religious exemption as a way to gain Republican support for the bill.

The Washington Blade will keep this article open for additional or revised comments for state LGBT groups’ positions on ENDA and its religious exemption.

The statements from each of the equality groups that have responded to the survey from the Washington Blade follow:

Equality Alabama

“Equality Alabama strongly supports a comprehensive Employment Non-Discrimination Act — one free of loopholes and licenses to discriminate. Simultaneously, we also strongly support freedom of religion.”

“As we know all too well, little legislation comes from Washington that is perfect. Equality Alabama supports the passage of ENDA, but we are hopeful that the final legislation will protect all LGBT persons in the workplace.” — Ben Cooper, chair of Equality Alabama

Equality California

EQCA supports the passage of the federal Employee Non-Discrimination Act, but we strongly oppose the broad religious exemption that has been attached to it.

“Ensuring that all American employees are judged on the quality of their work, not their sexual orientation or gender identity, is fundamental to achieving full equality. But that protection shouldn’t come with an asterisk or loophole, and that’s what this religious exemption is — a way to promise full protection without delivering it. This exemption undermines the value of ENDA and it must be fixed.” — Rick Zbur, EQCA executive director-elect

One Colorado

“One Colorado doesn’t have any comment at this time.” Jon Monteith, spokesperson for One Colorado.

Gay & Lesbian Activists Alliance

“GLAA has long supported ENDA. Our position was to support the best achievable bill, because we understood the value of strategic compromise — not as an end point but as a way station in the ongoing struggle for equality.”

“But here in DC, as in the marriage equality fight, we have successfully fought against overbroad religious exemptions. Of course religious groups enjoy protections in their core religious functions; outside that sphere is another matter.”

“It is time to push back against the religious bullies. Religious exemptions beyond those applying to discrimination under Title VII should not be accepted in ENDA.” — GLAA President Rick Rosendall

Equality Delaware

“Equality Delaware has not yet taken a position as a board on the religious exemption in the ENDA bill. However, our general position is that discrimination against LGBT people is wrong, and that includes discrimination against those who work for religious entities in non-ministerial roles.” — Equality Delaware chief Lisa Goodman

Equality Florida

“While we are pleased with the progress and momentum behind ENDA, we are very concerned with the sweeping, unprecedented scope of the legislation’s religious exemption.”

“In the current version, ENDA’s religious exemption could provide religiously affiliated organizations – far beyond houses of worship – with a blank check to engage in employment discrimination against LGBT people.” — a Jan. 22, 2014 coalition letter to Rep. Ileana Ros-Lehtinen signed by Equality Florida

Equality Hawaii

“It would depend upon how the exemption is worded, but, in principle, we would hopes that religious exemption language is removed before passage. Considering that religious beliefs were once used to deny women the right to vote, justify segregation and oppose interracial marriage, gutting anti-discrimination laws is a slippery slope that turn back time on anti-discrimination laws. We certainly hope for ENDA’s passage and, if it does pass with this language in tact, hope that judicial and legislative steps will be quickly taken to correct this free pass to discriminate.” — Don Bentz, executive director of Equality Hawaii

Equality Illinois

“We support the proposed federal Employment Non-Discrimination Act, which aims to prohibit workplace discrimination against LGBT Americans, but we strongly oppose including any exemptions that would give LGBT people less protection than other protected groups already enjoy under federal civil rights law.” — Organizational statement from Equality Illnois

One Iowa

“Equality is equality. Unfortunately, we start to diminish that when we make the kinds of exemptions we are seeing in this iteration of ENDA. One Iowa fully respects, appreciates and understands a religious organization’s right to follow the tenets of its own belief system. However, when we move to a place where a religious body can freely discriminate against a staff person in a non-ministerial /non-religious position–a janitor or groundskeeper, for instance–that is problematic. Other protected classes do not have this added burden. One Iowa feels there needs to be more conversation around the nuances and the potential harm of this exemption.” — Executive Director Donna Red Wing

Fairness Campaign

“This exemption seems broader than the religious exemptions we’ve supported on local and statewide legislation in Kentucky. Still awaiting final analysis” — Chris Hartman, director of the Fairness Campaign

Forum for Equality

“We haven’t taken a position yet, we will be meeting next week to discuss. Sorry, at this point we have no position.” — Executive Director Sarah Jane Brady


“MassEquality supports the federal Employment Non-Discrimination Act, which aims to prohibit job discrimination against LGBT workers, as a modest first step in leveling the playing field for LGBT people and their families. However, we strongly oppose ENDA’s current religious exemption, which would provide LGBT people less protection than that afforded other protected groups under existing federal civil rights law. ENDA is about ensuring fairness and equality, both of which are undermined by an exemption that would result in second-class protections for LGBT people.” — MassEquality Executive Director Kara Coredini

Equality Maryland

“Equality Maryland has not taken a position on the current version of ENDA. If and when we do, I will let you know.” — Equality Maryland Executive Director Carrie Evans

Gender Rights Maryland

“We support the current ENDA. We also welcome the efforts being made to revise and narrow the exemptions, and hope that those efforts make it more likely that the House will pass the bill that has already passed the Senate. In an ideal world we’d have the same religious exemptions as Title VII, but it’s, unfortunately, no longer 1964.” — Gender Rights Maryland Executive Director Dana Beyer

Equality Michigan

“We will issue a response and official statement. We are just doing our due diligence. We have every intention of standing by the response we send to you as we consider this extremely important. and are fighting like hell for similar and broader protections statewide here in Michigan. Much respect for the work you are doing as this develops.” — Executive Director Emily Dievendorf

OutFront Minnesota

“OutFront Minnesota supports the proposed federal Employment Non-Discrimination Act, but we oppose including any exemptions that would give LGBT people less protection than other protected groups already enjoy under federal civil rights law.”

“Minnesota passed an LGBT inclusive human rights act in 1993 and it has worked effectively to protect LGBT people. New and broader religious exemptions to LGBT nondiscrimination laws would be a step backward.” — Outfront Minnesota Director Jean Heyer

Equality Missouri

“Equality Missouri supports the passage of the federal Employee Non-Discrimination Act, but we are strongly opposed the broad religious exemption that has been attached to it, the religious exemption is nothing more than a license to discriminate against LGBT people” — Field Director Caleb-Michael Files


“As it currently stands, we have not made a statement either in support or against the current version of ENDA. This isn’t so much to reflect the current controversy but rather the perception that it has a very limited chance of passing the House in any form at this time. If pressed on the religious exemptions, we would likely stand with EQIL, NCLR and the TLC in opposition to the religious exemptions, however our board has not taken up any position at this time. I wager the board would stand with those orgs mainly because the congressional representation from MO would not be persuaded to support ENDA, even with those broad exemptions, so why barter for support when it isn’t available.” — Executive Director A.J. Bockelman

Equality New Mexico

“We do not support the proposed religious exemption. Thus, we do not support the current version of ENDA. We hope our elected officials will see this religious exemption for what it is — a license to discriminate against LGBT people — and decide to remove it.” — Executive Director Amber Royster

Equality North Carolina

“While we oppose the religious exemption it is able to be removed down the line, we’re in a position in North Carolina where just don’t have the luxury of waiting for these protections. There are real-world problems that North Carolinians across the Tar Heel State face, including employment discrimination, so we do support employment non-discrimination as it stands and we will continue to push for it. We will also continue to advocate that religious exemptions will be removed in the future.” — Executive Director Christopher Sgro

Empire State Pride Agenda

“The Pride Agenda supports the swift passage of ENDA and belives that no one should be denied employment or fired from their job simply because of who they are. We also believe the religious exclusion should be consistent with the other protected classes and hope that the final bill is reflective of that and is signed into law soon.” — ESPA spokesperson Allison Steinberg

Equality Ohio

“Don’t have anything for you regarding national legislation at the moment – we’re working night and day working to make progress in Ohio.” — Communications Director Grant Stancliff.


“FreedomOhio believes ENDA can and must be strengthened by eliminating the overly broad religious exemption that permits employers to discriminate based on a person’s real or perceived sexual orientation. FreedomOhio cannot support a version of ENDA that legalizes discrimination in the workplace for non-ministerial workers.” — Executive Director Ian James

Basic Rights Oregon

“The effort to pass ENDA has been a decades-long struggle, and Basic Rights Oregon strongly support passage of ENDA and thanks Rep. Jeff Merkley (D-Ore.) for his leadership. We do have deep concerns about the special exemption that is currently in the bill, as it will result in discrimination against gay, lesbian, bisexual and transgender Americans. We are hopeful that the language will be modified to be consistent with legislation applied to other protected groups, rather than singling out LGBT people for disparate treatment.” — Executive Director Jeana Frazzini

Equality Pennsylvania

“Sorry but we are deep in a legislative session right now and we haven’t had time to review the language and talk to our board about this.” — Equality Pennsylvania spokesperson Levana Layendecker

South Carolina Equality

“The board decided last night to not provide official comment at this time. We reserve the right to weigh in on this issue at a future date once we explore the topic.”

“ENDA has not been our focus this year. We have been a 100 percent focused on SC House bill 4025 in the state legislature which would have banned discrimination in South Carolina laws. Our bill did not contain any religious exemptions because we attempted to update existing human affairs laws which did not include them either. The session just ended but we plan to reintroduce the same bill for next session.” — Executive Director Ryan Wilson

Tennessee Equality Project

“Our position is similar to Equality Illinois. We support the bill, but we are obviously opposed to carving out exemptions for non-clergy positions in religious schools and charities. We’re supporting ENDA because we have no hope of enacting state-level job protections that forbid discrimination based on sexual orientation and gender identity. I get calls every month from people in Tennessee who have been fired, not hired, or denied a promotion because of their sexual orientation or gender identity.” — Chris Sanders, President of the Tennessee Equality Project,

Tennessee Transgender Political Coalition

They are currently in support of the existing ENDA. They’re not happy with the religious exemption, but they’re not going to oppose ENDA because of it. They have “no intention of withdrawing support from the current version.” — Secretary Marisa Richmond

Transgender Equality Network of Texas

“We are in agreement with Transgender Law Center and National Center for Lesbian Rights in that we do not support a bill with the current religious exemption included.”

“We are already seeing an increase of growth in RFRA (Religious Freedom Restoration Acts) around the country, and find Arizona’s SB1062 particularly notable if it becomes a trend.” — Executive Director Katy Stewart

Equality Virginia

“I don’t have an answer for you. I apologize that we will not be able to participate in the poll this time around.” Equality Virginia spokesperson Kirsten Bokenkamp

Vermont Freedom to Marry Task Force

“We’re not commenting on ENDA at this time.” — Board Chair Sheryl Rapée-Adams

Fair Wisconsin

“You might have heard that we have recently won marriage due to a federal ruling on Friday, and things have been busy as we are assisting clerks in Wisconsin with implementation. I will have to get back to you later about ENDA.” — Fair Wisconsin spokesperson Megin McDonell

Fairness West Virginia

“We’re not going to be able to meet your deadline. Typically we can respond faster to reporters for stories but many of our key people are out of reach right now. Best of luck with the poll, we look forward to reading what the results are.” — Fairness West Virginia spokesperson Carling McManus

Wyoming Equality

“Wyoming Equality obviously supports ENDA and making this a reality is one of our top priorities. However, as the proposed bill reads we would not be able to support it due to the broad religious exemption. We believe in freedom of religion and would be supportive of similar wording used in Title VII, but this feels like a religious exemption that would allow discrimination to continue against the LGBT community. No other minority group is subject to such a broad exemption. For example, this exemption would allow a Catholic School to fire a janitor just because they are LGBT! We want to see opinions in the work place develop around hard work and dedicated employees not sexual orientation or gender identity; and equality should never come with a footnote, asterisk or a loophole.” — Board Chair Jeran Artery

Justin Peligri contributed to this report.


homepage news

Honoring the legacy of New Orleans’ 1973 UpStairs Lounge fire

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



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.”

Continue Reading

homepage news

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

Business owner seeks to decline services for same-sex weddings



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.”

Continue Reading

homepage news

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

Progressive activist a veteran of Planned Parenthood Action Fund



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)
Continue Reading

Sign Up for Weekly E-Blast

Follow Us @washblade