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 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
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 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 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
“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
“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
“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
“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
“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 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
“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 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 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
“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
“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
“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
“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 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.
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, 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.”
Kelley Robinson, a Black, queer woman, named president of Human Rights Campaign
Progressive activist a veteran of Planned Parenthood Action Fund
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.”
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.
Former Ambassador Daniel Baer explains it all on Ukraine crisis
Expert downplays strategic thinking behind Putin’s move
Daniel Baer, who worked on LGBTQ human rights and transatlantic issues as one of several openly gay U.S. ambassadors during the Obama administration, answered questions from the Washington Blade on Ukraine as the international crisis continues to unfold.
Topics during the interview, which took place weeks ago on Jan. 27, included Putin’s motivation for Russian incursions, the risk of outright war, predictions for Russia after Putin and how the crisis would affect LGBTQ people in Ukraine.
Baer was deputy assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor and U.S. ambassador to the Organization of Security & Cooperation in Europe.
The full interview follows:
Washington Blade: What’s your level of engagement with this affair? Are you doing any consulting work? Is the administration reaching out to you at all?
Daniel Baer: I actually think the White House is doing a pretty good job of recognizing that they need to not only have press conferences, but also talk to other people who are trying to figure out how to be constructive critics, idea generators from the outside.
Blade: OK, so you’re being solicited and engaging on this issue. My next question for you is why do you think Putin is doing this at this time?
Baer: So, I guess taking a step back from the whole thing, one of the things about a problem like this is that everybody is searching for the right answer assuming that there is a like comfortable or compelling or intellectually accurate answer, and I actually think we’re just in a really hard moment.
I don’t know why he’s doing it now. And in fact, I think that one of the puzzles that we haven’t solved yet is that all the things that he says are the reasons that he’s doing it — that he feels encirclement by NATO, … or that the situation in Ukraine is untenable — none of those things have changed. Setting aside the fact that they’re spurious, it’s not like there’s been some new move in the last 12 months that has precipitated [a reaction] on any of those fronts that you can say, “Oh, well, he’s responding to the recent meeting where Ukraine was offered membership in NATO, or he’s responding to a change in government in Ukraine that it’s clearly anti-Russia, or any other move that we’ve done.” The explanation just doesn’t hold water, and so I think we need to look for alternative ones.
The best I can come up with is actually just a broad — it doesn’t actually explain this particular moment, but I think you could look at the timing of his life. He has, I don’t know, 10 years left. And during those 10 years, it’s unlikely that Russia is going to grow more powerful; it’s much more likely that it’s going to become at least relatively and probably nominally less powerful. And so, if you’re unhappy with the status quo, and you feel like you’re a declining power, and you don’t have endless time, there’s no time like the present. And you’ll make up whatever reasons you need to in order to justify it.
I also think there’s a tendency on our part to attribute far more “strategery” to Putin than there necessarily is. I mean, he’s a bully and a thug. I think the whole Putin’s playing chess and we’re playing checkers is actually completely inverted. We’re in our own heads that there’s some kind of nuanced position that would mollify him. He’s just a gangster and he’s taking a punch because he has one. And I don’t think it gets much more complicated than that. And so, I guess the answer to why he’s doing this now, because the international conditions are such that he feels like the United States is focused domestically, the Ukrainians are not moving forward with succeeding to build — they’re kind of in stasis on building a European state— and he has, you know, he has the space to take a punch, so he’s contemplating doing it, or he’s already decided to do it. And he’s just extracting as much as possible before he takes it.
Blade: That leads me to my next question: What is your judgement of the risk of out and out war?
Baer: I don’t know because I have two hypotheses that cut both ways. One is that I think Putin is vastly underestimating the degree of resistance. On the other hand, I think that nothing short of domination is satisfactory. And so, I don’t know. I guess I think there’s a 90 percent chance that he does something, and I think there’s a 75 percent chance that what he does is not an all out invasion or ground invasion, at least not at first, but rather something that is aimed at confusing us. So some sort of hybrid or staged or false flag kind of attack in tandem with a political coup in Kiev, where he works to install a more Russia-loyal leader.
The thing with the ground invasion is that Russian soldiers’ moms are one of the only, like, powerful political forces in civil society in Russia. I just don’t see any way that a ground invasion doesn’t involve massive Russian casualties, even if they will be dominant. The people who are going to impose the consequences on him will be the Ukrainians, not the rest of us, and he should not invade, and if he does, we should, frankly, work hard to make it as painful and difficult for him as possible.
Blade: What will that look like?
Baer: I think we should at that point continue — we shouldn’t pause, we should continue to send the defensive equipment and backfill as much as possible their ability from an equipment basis to resist.
Blade: So if we were to look at a model for past U.S. engagements. I’m thinking Greece under President Truman, which was so successful that nobody really knows about it, I don’t think. Is there any model we should be looking toward, or not looking toward?
Baer: No, I guess. I’m not sure there’s any good historical model because obviously, any of them you can pick apart. I do think that one thing that has gotten lost in a lot of the analysis — and this goes back to Putin being a gangster thug, and not being such a genius — is there’s a moral difference between us. The reason why Putin gets to control the dialogue is because he’s willing to do things that we aren’t willing to do — as gangsters are, as hostage-takers are — and so yes, they get to set the terms of what we discussed, because we’re not holding hostages. We’re trying to get hostages released. And the hostage-taker has an upper hand and asymmetry because they are willing to do something that is wrong.
We shouldn’t lose the kind of moral difference there. Nor should we lose sight of the fact that Ukraine is being menaced. And I’m not saying it’s our obligation [to intervene militarily], certainly not our obligation. They aren’t a treaty ally. We have neither a political obligation nor a moral one to necessarily risk our own lives, our own soldiers in defense of Ukraine. But if Ukraine wants to defend themselves, there’s a strong moral case to be made that anything, short of risking our own lives, is something that is morally good. We generally believe that self-defense from lethal threat is a reasonable moral cause and assisting others in defending themselves is too — I think there’s a lot of back and forth that get glossed over whether that’s a provocation or whatever, and I want to say to people stand back, look at this: we’ve got one party that is attacking another. And the question is, does the other have a right to defend itself? Yes. And if they have a right to defend themselves, and they also have a right to have whatever assistance people will offer them in defending themselves.
That doesn’t mean that they get to demand that we show up and fight in the trenches with them, of course, and I don’t think there’s any serious people who are recommending that but it’s a good thing to help them. It’s not like a technical thing. It’s a good thing to help
Blade: Getting into that moral background, one thing I want to ask you was about the significance of what would happen in this concept of democracy versus autocracy. First of all, how much is Ukraine a functional democracy, in the sense that if we’re defending Ukraine, we are defending a democracy, and what signal do you think it would send if that Ukrainian government fell to Russian autocracy?
Baer: I think the institutions of government that the Ukrainian people have are not worthy of the Ukrainian people’s own demonstrated commitment …
They are not worthy of the Ukrainian people’s own demonstrated commitment to the idea of democratic institutions. So the answer is today’s Ukrainian government is a mixed bag and it’s very hard to build, on the rot of a Russian fiefdom, a functioning democracy, so I think it’s a mixed bag. I don’t want to sound like I’m minimizing [the changes], or that they’ve completely bungled an easy project. It was always going to be a hard project, and it was never going to be linear.
But I think that what we’ve seen from the Ukrainian people — by which I mean not Ukrainian people, but people of Ukraine — is that there is a broad part of society that a) does not want to live under a Russian thumb and b) sees its future in kind of European style democracy. And so I think that if there was, there’s no question that the Russian attack would be in part about subjugating the people of Ukraine and forcing them to live under some sort of new Russian satellite. And I think that there’s little space for serious argument that that’s something that the people of the country wish to have.
Blade: But I’m just kind of getting at — you’re kind of minimizing that this is a strategic move by Putin, but if he were to successfully dominant Ukraine it becomes a Russian satellite isn’t that saying like, “Well, ha ha West, you thought the Cold War was over and there’s going to be just be a unipolar world in the future but no, we’re gonna we have this we’re back and we’re gonna create a multipolar world for the future.”
Baer: Yeah, I mean, my answer to the Russians who always raise the multipolar world to me is, “Fine, it’s going to be a multipolar world. What makes you think that Russia is one of the poles?” Poles by definition draw people to them, they are compelling and a pole attracts, magnetically or otherwise, and there is nothing attractive about the model that Russia is pursuing. And if the only way that you can be a pole is by subjugating, to force your neighbors, you are proving that you are not one.
I think the benefits for Russia are far smaller than Putin thinks and I think the consequences for the rest of the world of allowing a violation of international order to go forward are much larger than many people recognize.
Blade: But that was their approach when they were the Soviet Union. They were subjugating the Eastern Bloc through Russian force. They did have, in theory, the concept of their worldview of you know, of socialism, or whatever you want to put it charitably, was going to be the right way to go. Is there really that much of a difference?
Baer: Yeah, however disingenuous it was, they did have an ideology . So you’re right, that was a key distinction. The other thing is that the Soviet Union in relative size — its economy and population etc. — was much larger than Russia is today. And Russia is shrinking, and its economy is less diverse than the Communist one was. I think it’s a delusion to think that they’re going to kind of rebuild an empire, even if yes, because of their willingness to do awful things, they could potentially for a time politically control through violence, their neighbors. I just don’t — in a multipolar world, I don’t see Russia being one of the poles, at least not on its current path.
Blade: How would you evaluate the U.S. diplomatic approach to this issue?
Baer: There’s been very clear over-the-top effort to include the Europeans at every step — meetings with them before each meeting and after each meeting, to force conversations into fora that are more inclusive and stuff like that. And I think that Secretary Blinken is rightly recognizing the need to kind of play a role of kind of keeping everybody on the side while we test whether diplomacy whether there’s anything to do, whether there’s any promise with diplomacy.
I think there’s kind of, sometimes kind of, two camps in U.S. foreign policy circles. One is like: We should give the Russians what they want because it just doesn’t matter that much. War is much worse than anything that we would give them. And another is that we can’t give them an inch and we have to punch them in the face whenever we can. And I think both of those are kind of knee-jerk positions that have become a bit religious for people and neither of them is paying attention to the practical challenge that’s in front of the administration, which is like this guy’s threatening to invade and we need to identify whether there’s any opportunity for a functional off ramp, and that doesn’t mean we do that in a vacuum and ignore the long-term consequences, but our problem is not a religious one, it’s a practical one. And I think they’re doing a pretty good job of threading the needle on that and being not too far forward and not too far back.
Blade: Do you see any significant daylight between the United States and Europe?
Baer: No, I mean, no more than the minimum that is possible. There’s a lot of talk about Germany these days. Look, I think some of the things they say are not particularly helpful, but I don’t actually think that in the long run, if Putin invaded, I don’t think that they would hold up sanctions or anything like that. So I think they’re on our side, even if they’re talking out of both sides, in some cases.
Blade: I am wise to the fact that this is a nuclear power. It might be a little old school, but could escalation get that far?
Baer: There can’t be war. There can’t be war between NATO and Russia. It should be avoided. Obviously, there can be, but it should be avoided.
Blade: How committed do you think President Biden is to protecting Ukraine?
Baer: Reasonably so. I think he’s enough of an old school trans-Atlantist that he understands that this isn’t just about Ukraine.
Blade: I was wondering because he had those comments from his press conference about “minor incursion” and I’m just wondering if you’re reading anything into that or not.
Baer: No, I think that was that was a — I think broadly speaking, everything he says is in line with the kind of view that you would expect. And of course, one sentence can catch [attention]. That wasn’t what he meant. What he meant was that he didn’t want to draw a “red line” that would prejudge policy in response to something short of the most extreme scenario.
I think it is a good caution to not obsess over a single sentence and to look at the broad considered policy statements.
Blade: What do you think if you were looking for developments, like what would you be looking out for is significant in terms of where we are going to be going in the near future? This is one thing to keep an eye out for but is there anything else that you are kind of looking out for in terms of the near future?
Baer: I guess I would look out for whether or not the United States joins meetings of the so-called Normandy Format, which is the France, Germany, Ukraine and Russia grouping, which has so far been unsuccessful, but I think can only be successful as the United States joins it, but the Russians, I think have misgivings with the idea of our joining it.
Blade: I’m not at all familiar with that. What makes this forum particularly so —
Baer: So it was started in the summer in like June of 2015, on the margins of some meeting between Merkel and Hollande. The French and the Germans are very committed to the idea that they might be able to mediate peace between Ukraine and Russia. It was supposed to implement the Minsk Agreement, and it just hasn’t been productive so far. I don’t think that the Russians will do anything — I don’t think the Ukrainians feel comfortable negotiating anything without the Americans at the table. And I don’t think the Russians feel like anything is guaranteed without the Americans at the table. So I just, I’m fine with France and Germany taking the lead, but I think the U.S. has to be there.
And there was a meeting of this group in Paris yesterday, and which the U.S. was supportive of, and so I’m watching to see whether or not the United States gets added in some ad hoc way, whether there are future meetings. I guess the reason I would watch it, if the U.S. were to join future meetings that would signal to me that it’s actually there’s some diplomacy happening there.
That’s meant to be focusing mainly on the existing Russian invasion, the occupation of the Donbas, so that’s not about the threat of the new invasion, but it would be interesting to me if there was forward movement on other parts of Ukraine. The announcement of the American ambassador is one. I think that last week movement of troops into Belarus was a game changer for the U.S., because there are all kinds of new implications if you’re using a third country as your launchpad for war, and so it complicates things and it also looks more serious if you’re starting to deploy to third countries and stuff like that. So I think that was that last week, you noticed a difference in the U.S. tone and tenor in response to that.
So things like that. But in general, like what I would do and I don’t think people always catch this is because there’s a boiling frog aspect to it. There are statements coming out from the White House or State Department. Almost every day on stuff related to this and like last week, there was a noticeable change in the tenor as the U.S. became less, I think more pessimistic about the prospects of diplomacy and those I don’t have anything better to look for in those statements as tea leaves, in terms of what the U.S. assessment is of the prospects of the escalation are, so it’s bad.
Blade: Right. That’s very sobering.
There’s a lot of talk, and I’ve just been seeing some like about in terms of, there’s like comparisons to Afghanistan and making sure that all Americans are able to get out of Ukraine. Is that comparing apples to oranges?
Blade: And could you unpack that a little bit? I mean, I can kind of guess the reasons why. How is that apples to oranges?
Blade: Well, the level of development in Ukraine in terms of infrastructure and transport and stuff like that is not comparable to Afghanistan. I think it would be– if there were a Russian invasion–you would definitely want to, obviously, for safety reasons, it’s not safe to be in a war zone, so you would want people to be able to evacuate and you’d have to plan for that.
A major concern [in Afghanistan] was also that there were tens of thousands, if not hundreds of thousands of locals who had worked for the Americans. The Americans that are in Ukraine are not a departing occupying power. There’s just not the same footprint there — the Americans are in Ukraine or there as business people or young [people working on] democracy assistance or whatever. And it’s just it’s a different context.
Blade: Why do you think the Russians put up with Putin? I mean, this is a country that was a world power and I would think has some economic potential just given its sheer size, first of all, and they do have oil to offer people. So why aren’t the Russians like angry at him for obstructing their participation in the global order as opposed to just putting up with him for years and years and years.
Baer: Successful instrumentalisation of cynicism. The lack of a belief in an alternative will keep you from fighting for it.
Blade: That’s pretty succinct.
Baer: I mean, I don’t think there’s any question that the people of Russia could be better off or different in terms of kitchen table issues, and ease of navigating the world, prospects for their future for their children’s future. The amount of money that Putin has invested into military modernization that Russia can ill afford, while he’s cut pensions and social services and health care. It’s just it’s objectively true that the average Russian person would be better served by a different leader. But he’s done a very good job of effectively selling off the country for profit and persuading people through repression and propaganda that there is no alternative.
Blade: And Putin won’t be around forever. Once he finally goes, is an alternative going to emerge, or will it be the next guy in Putin’s mold?
Baer: I think it’s far from clear that what comes after Putin isn’t worse and bloody. Regimes like this don’t reliably have stable transitions.
Blade: Wow, okay.
Baer: Yeah, we shouldn’t… we should be careful about wishing… wishing for his demise.
Blade: That’s good to know. It’s kind of a frightful note for me to end my questions. But actually before I sign off, there’s one more thing too because I do kind of want to talk about the intersection about your old job in democracy and human rights and then a Venn diagram of that with your experience in Eastern Europe in particular. Do you have a sense of what’s at stake for LGBTQ people in Ukraine or if they’re in more danger right now than they would be otherwise?
Baer: That’s a good question. I mean, my knee jerk reaction is yes. That — as mixed of a picture as Ukraine has been in the last seven years, or eight years — there have been meaningful steps forward, and certainly, in terms of visibility.
I guess, in the sense that Ukraine is better than Russia today, if you’re gay, if Russia is going to occupy or control Ukraine we can expect that it will get worse because it will become more like Russia.
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