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Lesbian Miss. minister inspires people to live ‘authentic lives’

Says Old South continues to haunt LGBT residents

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Brandiilyne Dear, Dandelion Project, gay news, Washington Blade
Mississippi, We Don't Discriminate, gay news, Washington Blade

Dandelion Project founder Brandiilyne Dear (Washington Blade photo by Michael Key)

LAUREL, Miss. ā€” Rev. Brandiilyne Dear, an ordained minister who grew up in a small town in Mississippiā€™s Pine Belt, was 11 years old when she had her first “experience with a girl.ā€

Their parents found out they had been together because they could not hide the hickies on their necks.

ā€œThat was my best friend,ā€ Dear told the Washington Blade during a July 9 interview at a coffee shop in Laurel, a city of about 18,000 residents that is roughly 90 miles southeast of Jackson, the state capital. ā€œI was not able to see her anymore after that. We got in a lot of trouble.ā€

Dear has struggled and confronted personal demons throughout most of her life.

She began to smoke marijuana shortly after her first same-sex sexual encounter with her then-best friend.

Dear took ecstasy and other drugs when she lived in Birmingham, Ala., in her mid-20s. She told the Blade she began taking crystal meth once she returned to Mississippi.

ā€œWhen I was 28 years old, I had lost everything,ā€ Dear told the Blade. ā€œI woke up in a hotel room; a cheap hotel and I didnā€™t have anywhere to go. I had lost everything and I had to call my mother. Iā€™m 28 years old, Iā€™m having to call mom. I didnā€™t have anywhere to go and she came and got me.ā€

‘I had an experience with Godā€™

Dearā€™s son was 11 years old when they moved into her motherā€™s home.

ā€œIf you live under mommaā€™s roof you live by mommaā€™s rules,ā€ Dear told the Blade. ā€œThatā€™s just how it is in the South. You have to do what momma says; I donā€™t care if youā€™re 40 or 14.ā€

Dear said her mother, whom she described as a ā€œbig Christian,ā€ made her go to church.

ā€œI walked into this church and these people were a little hyper,ā€ she said, noting she had grown up Methodist. ā€œI laid on the back pew and drew in the books. And so I go in here and they were raising their hands and theyā€™re doing the thing and theyā€™re amen and hallelujah.ā€

Dear was still living with her crystal meth addiction when she first went to the church.

ā€œIā€™m just sitting there going these people are nuts, and mind you Iā€™m a junkie at the time,ā€ she said. ā€œIā€™m a complete drug addict and Iā€™m sitting in the church saying these people are nuts.ā€

Dearā€™s mother had volunteered her to paint a childrenā€™s mural inside the church.

A youth pastor insisted that she attend a weekend-long retreat known as an ā€œencounterā€ in September 2003.

Dear resisted, even hiding in another room to avoid him. She finally relented and said she would go as a way to get him to leave her alone.

ā€œI went to this encounter and I had an experience with God, I mean a genuine experience with God,ā€ Dear told the Blade. ā€œI never wanted another drug, never used another drug.ā€

ā€œAfter that weekend, I just knew I wanted to help people,ā€ she added. ā€œI just felt the call of God and it was very strong.ā€

Dear in 2005 established a ministry for drug addicts in Laurel called Dying to Live Ministries.

ā€œI thought my life was a mess,ā€ she said. ā€œI thought I had this horrible addiction, and I was a terrible drug addict. But I started working with drug addicts and I thought wow, Iā€™m Mother Teresa compared to these people. I mean they would come in and they were just in horrible shape. I connected with people and I was able to help them.ā€

Dear met the couple that currently runs the ministry when they were struggling with their own addiction ā€” the woman was in jail where she had been put on house arrest and her husband participated in the program as an alternative to prison. Dear married the couple.

ā€œI saved a lot of people from prison,ā€ she said.

She opened a center for recovering drug addicts in 2012 after a 19-year-old man who had joined her ministry died in a car accident.

Chris McDaniel, a local lawyer who challenged incumbent U.S. Sen. Thad Cochran (R-Miss.) in the stateā€™s June primary, is among those who attended the groundbreaking.

ā€œIt was really tragic,ā€ said Dear, referring to the manā€™s sudden death. ā€œI decided I wanted to do more. I was having meetings every week and I had the jail ministry. I had all this going on, but I wanted to do more.ā€

ā€˜Trying to pray the gay awayā€™

Dear told the Blade that many of those who sought help through her ministry were gay men and lesbians.

ā€œA lot of the LGBT people did cope through drugs and alcohol, so I had a lot of gay people in my ministry,ā€ she said. ā€œOf course I was trying to pray the gay away and rehabilitate, so I was involved in reparative therapy to a degree.ā€

She described the impact of reparative therapy as ā€œdevastating.ā€

ā€œYouā€™re telling people that you know God can deliver you through homosexuality, you just have to believe, you have to have faith,ā€ said Dear. ā€œWhen God doesnā€™t heal you or make you straight, you must have gone too far. God doesnā€™t love you and youā€™re not worth saving. Your self-worth is just depleted, completely depleted. Itā€™s just a big thing. I started to see that in the last two years of my ministry.ā€

Dear said a judge referred a lesbian to her ministry during the time she had begun to grapple with her own sexual orientation.

The recovering drug addictā€™s partner, Brandi, attended meetings with her.

ā€œShe came in with her partner,ā€ said Dear. ā€œSheā€™s like ā€˜Iā€™m here to support her. I donā€™t want to be here.ā€™ā€

ā€œSheā€™s completely against church and against pastors and understandably so because of the way LGBT people have been treated in the church,ā€ she added.

Brandiā€™s partner subsequently died from an aneurism.

Dear became ā€œkind of closeā€ with Brandi after she presided over her partnerā€™s funeral.

ā€œShe came into the ministry and she started working toward getting straight, and she just didnā€™t,ā€ said Dear. ā€œShe wasnā€™t straight. Of course it didnā€™t work.ā€

Brandi soon began to date another woman, and Dear told the Blade the church ā€œblackballed her.ā€

ā€œIt was really, really bad,ā€ she said. ā€œShe was very vocal about it on social media and we were very vocal about it on social media. We were bullying her.ā€

Dear fell ā€˜head over heelsā€™ for partner

Brandiilyne Dear, Susan Mangum, The L Word Mississippi, Dandelion Project, gay news, Washington Blade

Brandiilyne Dear and Susan Mangum (Photo courtesy of Dear)

It was during this period that Dear met her current partner Susan Mangum when she approached her at the womenā€™s gym she owns ā€” and where the lesbian who had just been kicked out of her church worked out ā€” to see if the business would donate memberships for those in her ministry.

ā€œIā€™m standing kind of behind my secretary and giving her my spiel and telling her what I needed and what I wanted,ā€ said Dear. ā€œSheā€™s just looking at me and Iā€™m thinking lord, sheā€™s going to kick my ass. Sheā€™s going to get up out of this chair and kick my ass.ā€

Mangum was initially skeptical of the request, but she eventually agreed.

Dear also bought a membership for herself and began to work out at the gym.

ā€œI started going to the gym and I thought Susan was just cute,ā€ she told the Blade, noting Mangumā€™s partner of eight years had recently left her and took their children. ā€œSusan wasnā€™t doing real well at the time. And Pastor Brandiilyne goes into minister mode. Iā€™m trying to minister to her and I listened to her a lot. She talked a lot, so I listened and we really just became great friends.ā€

Dear was married to her then-husband, but she soon began to ā€œfall head over heels in love with her.ā€

ā€œHere I am, freaking out at this point, Iā€™m like I donā€™t know what to do,ā€ she said. ā€œIā€™m married first of all and Iā€™m Pastor Brandiilyne and this is Mississippi and this canā€™t happen. Thatā€™s when I started to think and go back. Thatā€™s when I remembered my little 11-year-old affair.ā€

‘I lost everythingā€™

Dear nearly passed out during a boxing class one day, so Mangum brought her to her home.

ā€œShe went upstairs to get a shower and get changed,ā€ Dear told the Blade. ā€œShe came back down and I was just like Iā€™ve got to do something about this. Itā€™s making me physically sick. I canā€™t function. Iā€™ve got to do something about this.ā€

Dear said she told Mangum that she is ā€œcrazy about youā€ and she is ā€œfalling in love with you.ā€

ā€œShe was sitting on the other end of the couch,ā€ said Dear. ā€œShe raised up and said hell no. I was just like, well, that is not what I had envisioned.ā€

ā€œShe said no, hell no, you have this great life,ā€ she added. ā€œYouā€™re Pastor Brandiilyne, Iā€™m not going to let you screw up your life. You donā€™t understand what this is going to do with you.ā€

Dear and Mangum agreed to remain friends, but a couple of weeks later decided they were ā€œjust going to pursue it.ā€

Dear told the Blade that she had already decided to leave her church because she ā€œdidnā€™t like the wayā€ it treated people.

ā€œI didnā€™t like the way they treated the LGBT community,ā€ she said. ā€œI was just as bad, but you do what youā€™re told to do. You follow the leader.ā€

Dear told the Blade that she decided to tell the couple who are now running her ministry because ā€œthey were my best friends, very close to me.ā€

ā€œI came out to them and told them,ā€ she said. ā€œThey outed me to my pastor and my pastor resigned me from the pulpit the next day.ā€

Dear described the day she came out as ā€œthe most liberating moment of my lifeā€ that ā€œwas quickly becoming the most devastating.ā€ She lost her ministry, her family and her husband.

ā€œMy pastors were like my father and my mother,ā€ said Dear, noting she spent every major holiday with them as she became emotional. ā€œI literally spent all of my time with them. So I lost everything. It was a rejection that went so deep and it was so painful. Itā€™s indescribable.ā€

LGBT people ā€˜so much more than our sexualityā€™

Dandelion Project, gay news, Washington Blade

Members of the Dandelion Project meet in Dear and Mangum’s Mississippi home. (Washington Blade photo by Michael Key)

Dear founded the Dandelion Project, a support group for LGBT people who live in Laurel and the surrounding areas.

ā€œThereā€™s so much more to it than just a weed,ā€ she told the Blade, noting how she began studying the dandelion after she saw one while driving down a local road. ā€œA dandelion is a beautiful thing and itā€™s a great thing and itā€™s a good thing. Theyā€™re everywhere and you canā€™t stop them.ā€

The group has more than 50 members, many of whom meet weekly at her Laurel home.

The Dandelion Project has produced a number of video campaigns that promote acceptance of LGBT people.

Dear and other members of the Dandelion Project also appear in ā€œL Word Mississippi: Hate the Sin,ā€ a documentary that premiered on Showtime on Friday.

ā€œWeā€™re so much more than our sexuality,ā€ said Dear. ā€œI donā€™t know how it is everywhere, but here in the South when people find out your sexuality, the rest of your identity is overshadowed by stereotypes. Itā€™s the first thing they see. Itā€™s like ā€˜hi lesbianā€™ and thatā€™s it. They canā€™t get beyond that.ā€

ā€œThey canā€™t see that youā€™re intelligent; they canā€™t see that you’re professionals; they canā€™t see that youā€™re business owners,ā€ she added. ā€œThey only see your sexuality and immediately itā€™s a negative thing. Youā€™re a pervert, youā€™re demon-possessed.ā€

The Dandelion Project was also involved in the campaign against a law ā€” Senate Bill 2681 ā€” that opponents contend allows businesses to deny services to LGBT people based on their religious beliefs.

ā€œYou donā€™t have to have a law that says you can do it because of religious beliefs,ā€ said Dear. ā€œYou can just do it because youā€™re a business owner. You can say you know Iā€™m not going to serve you because you donā€™t have on your shirt or you donā€™t have on your shoes or whatever reason. It was basically weā€™re going to stand up and tell the gays how we really feel. Thatā€™s how we feel. Thatā€™s how I feel about it.ā€

Dear said the American Family Association, a Mississippi-based anti-LGBT organization the Southern Poverty Law Center lists as a hate group, said in an article that her gym is among the businesses that are ā€œdiscriminating against Christianity.ā€ The AFA removed the reference after Dear threatened to sue and her lawyer sent a cease and desist letter.

ā€œWeā€™re battling with them,ā€ she said. ā€œTheyā€™re calling us bullies. The fact of the matter is theyā€™re bullies.ā€

Old South ā€˜still haunts usā€™

Dear told the Blade she feels the ā€œold South still haunts us like a ghost of the past.ā€

ā€œThe Confederate flag is the centerpiece of our state flag,ā€ she said, referring to SB 2681. ā€œWe just canā€™t seem to get away from it. In the South people are proud; people are very proud and theyā€™re proud of their heritage. That includes that mindset.ā€

She is nevertheless proud of Mississippi.

ā€œMississippi is moving to the front in the fight for equality, and Iā€™m very proud of where itā€™s going,ā€ said Dear. ā€œI donā€™t think anybody expected Mississippi to progress so quickly and for people to stand up and say, hey, you know weā€™re not going to take this anymore and weā€™re not going to be quiet and weā€™re not going to be your sweet Southern girl and weā€™re not going to keep our mouths shut and weā€™re not going to be the Southern belles. Weā€™re standing up for our rights.ā€

Dear told the Blade she and other members of her group are ā€œvery excitedā€ about the growing momentum behind marriage rights for same-sex couples, the Employment Non-Discrimination Act and other LGBT issues across the country. She nevertheless said nuptials for gays and lesbians will not become legal in Mississippi until the U.S. Supreme Court rules on it.

ā€œThatā€™s how weā€™re going to get it here,ā€ said Dear.

She also said she welcomes the Human Rights Campaign ā€” with whom she interviewed for a job she did not receive ā€” and other national LGBT advocacy groups that want to work in Mississippi.

ā€œI think a lot of people feel like they just swooped in and took the reigns away from us,ā€ said Dear. ā€œWeā€™ve been working a lot and I think a lot of people feel that way. I think theyā€™re handling themselves pretty well here.ā€

Group encourages members to ā€˜live authentic livesā€™

Brandiilyne Dear, Mississippi, Dandelion Project, gay news, Washington Blade

Brandiilyne Dear, on right, leads a protest in Jackson, Miss. against SB 2681. (Photo courtesy of Dear)

Dear said the Dandelion Project encourages people to come out and ā€œlive out.ā€

ā€œSociety needs to see us and our hometown needs to see us,ā€ she told the Blade. ā€œThey need to see us in Walmart and holding hands or just walking close to one another.ā€

Susan was initially reluctant to hold Dearā€™s hand in public places, but she has subsequently changed her mind.

ā€œIā€™m not willing to live quietly,ā€ said Dear. ā€œWe need to live authentic lives and our communities need to see us and so we really encourage people to live authentic lives, especially in this area.ā€

Dear told the Blade she ā€œwould love to leave Mississippi,ā€ but has decided to remain in her state and fight.

ā€œIf I donā€™t stay here and fight, I leave it to the next generation and I feel thatā€™s irresponsible,ā€ she said. ā€œSo if I can make a change and make a difference than Iā€™ll just stay. This is my state and you know what Iā€™ve just decided that youā€™re not going to run me off. Iā€™m going to live my life and Iā€™m going to do everything I possibly can to change things.ā€

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Honoring the legacy of New Orleansā€™ 1973 UpStairs Lounge fire

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

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Fifty years ago this week, 32 gay men were killed in an arson attack on the UpStairs Lounge in New Orleans. (Photo by G.E. Arnold/Times-Picayune; reprinted with permission)

On June 23 of last year, I held the microphone as a gay man in the New Orleans City Council Chamber and related a lost piece of queer history to the seven council members. I told this story to disabuse all New Orleanians of the notion that silence and accommodation, in the face of institutional and official failures, are a path to healing.  

The story I related to them began on a typical Sunday night at a second-story bar on the fringe of New Orleansā€™ French Quarter in 1973, where working-class men would gather around a white baby grand piano and belt out the lyrics to a song that was the anthem of their hidden community, ā€œUnited We Standā€ by the Brotherhood of Man. 

ā€œUnited we stand,ā€ the men would sing together, ā€œdivided we fallā€ ā€” the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to todayā€™s queer safe havens. 

Around that piano in the 1970s Deep South, gays and lesbians, white and Black queens, Christians and non-Christians, and even early gender minorities could cast aside the racism, sexism, and homophobia of the times to find acceptance and companionship for a moment. 

For regulars, the UpStairs Lounge was a miracle, a small pocket of acceptance in a broader world where their very identities were illegal. 

On the Sunday night of June 24, 1973, their voices were silenced in a murderous act of arson that claimed 32 lives and still stands as the deadliest fire in New Orleans history ā€” and the worst mass killing of gays in 20th century America. 

As 13 fire companies struggled to douse the inferno, police refused to question the chief suspect, even though gay witnesses identified and brought the soot-covered man to officers idly standing by. This suspect, an internally conflicted gay-for-pay sex worker named Rodger Dale Nunez, had been ejected from the UpStairs Lounge screaming the word “burn” minutes before, but New Orleans police rebuffed the testimony of fire survivors on the street and allowed Nunez to disappear.

As the fire raged, police denigrated the deceased to reporters on the street: ā€œSome thieves hung out there, and you know this was a queer bar.ā€ 

For days afterward, the carnage met with official silence. With no local gay political leaders willing to step forward, national Gay Liberation-era figures like Rev. Troy Perry of the Metropolitan Community Church flew in to ā€œhelp our bereaved brothers and sistersā€ ā€” and shatter officialdomā€™s code of silence. 

Perry broke local taboos by holding a press conference as an openly gay man. ā€œItā€™s high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,ā€ Perry said. 

Two days later, on June 26, 1973, as families hesitated to step forward to identify their kin in the morgue, UpStairs Lounge owner Phil Esteve stood in his badly charred bar, the air still foul with death. He rebuffed attempts by Perry to turn the fire into a call for visibility and progress for homosexuals. 

ā€œThis fire had very little to do with the gay movement or with anything gay,ā€ Esteve told a reporter from The Philadelphia Inquirer. ā€œI do not want my bar or this tragedy to be used to further any of their causes.ā€ 

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

ā€œPhil said the cash register, juke box, cigarette machine and some wallets had money removed,ā€ recounted Esteveā€™s friend Bob McAnear, a former U.S. Customs officer. ā€œPhil wouldnā€™t report it because, if he did, police would never allow him to operate a bar in New Orleans again.ā€ 

The next day, gay bar owners, incensed at declining gay bar traffic amid an atmosphere of anxiety, confronted Perry at a clandestine meeting. ā€œHow dare you hold your damn news conferences!ā€ one business owner shouted. 

Ignoring calls for gay self-censorship, Perry held a 250-person memorial for the fire victims the following Sunday, July 1, culminating in mourners defiantly marching out the front door of a French Quarter church into waiting news cameras. ā€œReverend Troy Perry awoke several sleeping giants, me being one of them,ā€ recalled Charlene Schneider, a lesbian activist who walked out of that front door with Perry.

(Photo by G.E. Arnold/Times-Picayune; reprinted with permission)

Esteve doubted the UpStairs Lounge storyā€™s capacity to rouse gay political fervor. As the coroner buried four of his former patrons anonymously on the edge of town, Esteve quietly collected at least $25,000 in fire insurance proceeds. Less than a year later, he used the money to open another gay bar called the Post Office, where patrons of the UpStairs Lounge ā€” some with visible burn scars ā€” gathered but were discouraged from singing ā€œUnited We Stand.ā€ 

New Orleans cops neglected to question the chief arson suspect and closed the investigation without answers in late August 1973. Gay elites in the cityā€™s power structure began gaslighting the mourners who marched with Perry into the news cameras, casting suspicion on their memories and re-characterizing their moment of liberation as a stunt. 

When a local gay journalist asked in April 1977, ā€œWhere are the gay activists in New Orleans?,ā€ Esteve responded that there were none, because none were needed. ā€œWe donā€™t feel weā€™re discriminated against,ā€ Esteve said. ā€œNew Orleans gays are different from gays anywhere elseā€¦ Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.ā€ 

(Photo by H.J. Patterson/Times-Picayune; reprinted with permission)

An attitude of nihilism and disavowal descended upon the memory of the UpStairs Lounge victims, goaded by Esteve and fellow gay entrepreneurs who earned their keep via gay patrons drowning their sorrows each night instead of protesting the injustices that kept them drinking. 

Into the 1980s, the story of the UpStairs Lounge all but vanished from conversation ā€” with the exception of a few sanctuaries for gay political debate such as the local lesbian bar Charleneā€™s, run by the activist Charlene Schneider. 

By 1988, the 15th anniversary of the fire, the UpStairs Lounge narrative comprised little more than a call for better fire codes and indoor sprinklers. UpStairs Lounge survivor Stewart Butler summed it up: ā€œA tragedy that, as far as I know, no good came of.ā€ 

Finally, in 1991, at Stewart Butler and Charlene Schneiderā€™s nudging, the UpStairs Lounge story became aligned with the crusade of liberated gays and lesbians seeking equal rights in Louisiana. The halls of power responded with intermittent progress. The New Orleans City Council, horrified by the story but not yet ready to take its look in the mirror, enacted an anti-discrimination ordinance protecting gays and lesbians in housing, employment, and public accommodations that Dec. 12 ā€” more than 18 years after the fire. 

ā€œI believe the fire was the catalyst for the anger to bring us all to the table,ā€ Schneider told The Times-Picayune, a tacit rebuke to Esteveā€™s strategy of silent accommodation. Even Esteve seemed to change his stance with time, granting a full interview with the first UpStairs Lounge scholar Johnny Townsend sometime around 1989. 

Most of the figures in this historic tale are now deceased. Whatā€™s left is an enduring story that refused to go gently. The story now echoes around the world ā€” a musical about the UpStairs Lounge fire recently played in Tokyo, translating the gay underworld of the 1973 French Quarter for Japanese audiences.

When I finished my presentation to the City Council last June, I looked up to see the seven council members in tears. Unanimously, they approved a resolution acknowledging the historic failures of city leaders in the wake of the UpStairs Lounge fire. 

Council members personally apologized to UpStairs Lounge families and survivors seated in the chamber in a symbolic act that, though it could not bring back those who died, still mattered greatly to those whose pain had been denied, leaving them to grieve alone. At long last, official silence and indifference gave way to heartfelt words of healing. 

The way Americans remember the past is an active, ongoing process. Our collective memory is malleable, but it matters because it speaks volumes about our maturity as a people, how we acknowledge the pastā€™s influence in our lives, and how it shapes the examples we set for our youth. Do we grapple with difficult truths, or do we duck accountability by defaulting to nostalgia and bluster? Or worse, do we simply ignore the past until it fades into a black hole of ignorance and indifference? 

I believe that a factual retelling of the UpStairs Lounge tragedy ā€” and how, 50 years onward, it became known internationally ā€” resonates beyond our current divides. It reminds queer and non-queer Americans that ignoring the past holds back the present, and that silence is no cure for what ails a participatory nation. 

Silence isolates. Silence gaslights and shrouds. It preserves the power structures that scapegoat the disempowered. 

Solidarity, on the other hand, unites. Solidarity illuminates a path forward together. Above all, solidarity transforms the downtrodden into a resounding chorus of citizens ā€” in the spirit of voices who once gathered ā€˜round a white baby grand piano and sang, joyfully and loudly, ā€œUnited We Stand.ā€ 

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

Robert W. Fieseler is a New Orleans-based journalist and the author of ā€œTinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.ā€

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

Business owner seeks to decline services for same-sex weddings

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The U.S. Supreme Court is to set consider the case of 303 Creative, which seeks to refuse design services for same-sex weddings. (Blade file photo by Michael Key)

The U.S. Supreme Court, after a decision overturning Roe v. Wade that still leaves many reeling, is starting a new term with justices slated to revisit the issue of LGBTQ rights.

In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a website designer in Colorado who wants to opt out of providing her graphic design services for same-sex weddings despite the civil rights law in her state.

Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.

“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person ā€” if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”

The upcoming arguments and decision in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had no lawsuit to directly address the issue in its previous term, although many argued the Dobbs decision put LGBTQ rights in peril and threatened access to abortion for LGBTQ people.

And yet, the 303 Creative case is similar to other cases the Supreme Court has previously heard on the providers of services seeking the right to deny services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both of those cases, however, the court issued narrow rulings on the facts of litigation, declining to issue sweeping rulings either upholding non-discrimination principles or First Amendment exemptions.

Pizer, who signed one of the friend-of-the-court briefs in opposition to 303 Creative, said the case is “similar in the goals” of the Masterpiece Cakeshop litigation on the basis they both seek exemptions to the same non-discrimination law that governs their business, the Colorado Anti-Discrimination Act, or CADA, and seek “to further the social and political argument that they should be free to refuse same-sex couples or LGBTQ people in particular.”

“So there’s the legal goal, and it connects to the social and political goals and in that sense, it’s the same as Masterpiece,” Pizer said. “And so there are multiple problems with it again, as a legal matter, but also as a social matter, because as with the religion argument, it flows from the idea that having something to do with us is endorsing us.”

One difference: the Masterpiece Cakeshop litigation stemmed from an act of refusal of service after owner, Jack Phillips, declined to make a custom-made wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past, however, is present in the 303 Creative case. The owner seeks to put on her website a disclaimer she won’t provide services for same-sex weddings, signaling an intent to discriminate against same-sex couples rather than having done so.

As such, expect issues of standing ā€” whether or not either party is personally aggrieved and able bring to a lawsuit ā€” to be hashed out in arguments as well as whether the litigation is ripe for review as justices consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to lead the court to reach less sweeping decisions (sometimes successfully, and sometimes in the Dobbs case not successfully) to push for a decision along these lines.

Another key difference: The 303 Creative case hinges on the argument of freedom of speech as opposed to the two-fold argument of freedom of speech and freedom of religious exercise in the Masterpiece Cakeshop litigation. Although 303 Creative requested in its petition to the Supreme Court review of both issues of speech and religion, justices elected only to take up the issue of free speech in granting a writ of certiorari (or agreement to take up a case). Justices also declined to accept another question in the petition request of review of the 1990 precedent in Smith v. Employment Division, which concluded states can enforce neutral generally applicable laws on citizens with religious objections without violating the First Amendment.

Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking exemptions based on the First Amendment, such as the Masterpiece Cakeshop case.

Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a decision in favor of 303 Creative boils down to a clear-cut violation of the First Amendment.

“Colorado and the United States still contend that CADA only regulates sales transactions,” the brief says. “But their cases do not apply because they involve non-expressive activities: selling BBQ, firing employees, restricting school attendance, limiting club memberships, and providing room access. Coloradoā€™s own cases agree that the government may not use public-accommodation laws to affect a commercial actorā€™s speech.”

Pizer, however, pushed back strongly on the idea a decision in favor of 303 Creative would be as focused as Alliance Defending Freedom purports it would be, arguing it could open the door to widespread discrimination against LGBTQ people.

“One way to put it is art tends to be in the eye of the beholder,” Pizer said. “Is something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember ‘soup and art’? We have had an understanding that whether something is beautiful or not is not the determining factor about whether something is protected as artistic expression. There’s a legal test that recognizes if this is speech, whose speech is it, whose message is it? Would anyone who was hearing the speech or seeing the message understand it to be the message of the customer or of the merchants or craftsmen or business person?”

Despite the implications in the case for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who consider themselves proponents of free speech.

One joint friend-of-the-court brief before the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who’s written in favor of LGBTQ rights, and Eugene Volokh, a First Amendment legal scholar at the University of California, Los Angeles, argues the case is an opportunity to affirm the First Amendment applies to goods and services that are uniquely expressive.

“Distinguishing expressive from non-expressive products in some contexts might be hard, but the Tenth Circuit agreed that Smithā€™s product does not present a hard case,” the brief says. “Yet that court (and Colorado) declined to recognize any exemption for products constituting speech. The Tenth Circuit has effectively recognized a state interest in subjecting the creation of speech itself to antidiscrimination laws.”

Oral arguments in the case aren’t yet set, but may be announced soon. Set to defend the state of Colorado and enforcement of its non-discrimination law in the case is Colorado Solicitor General Eric Reuel Olson. Just this week, the U.S. Supreme Court announced it would grant the request to the U.S. solicitor general to present arguments before the justices on behalf of the Biden administration.

With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block. After the U.S. Tenth Circuit Court of Appeals ruled against 303 Creative in the lawsuit, the simple action by the Supreme Court to grant review in the lawsuit suggests they are primed to issue a reversal and rule in favor of the company.

Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.

“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”

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

Progressive activist a veteran of Planned Parenthood Action Fund

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Kelley Robinson (Screen capture via HRC YouTube)

Kelley Robinson, a Black, queer woman and veteran of Planned Parenthood Action Fund, is to become the next president of the Human Rights Campaign, the nation’s leading LGBTQ group announced on Tuesday.

Robinson is set to become the ninth president of the Human Rights Campaign after having served as executive director of Planned Parenthood Action Fund and more than 12 years of experience as a leader in the progressive movement. She’ll be the first Black, queer woman to serve in that role.

ā€œIā€™m honored and ready to lead HRC ā€” and our more than three million member-advocates ā€” as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,ā€ Robinson said. ā€œThis is a pivotal moment in our movement for equality for LGBTQ+ people. We, particularly our trans and BIPOC communities, are quite literally in the fight for our lives and facing unprecedented threats that seek to destroy us.”

Kelley Robinson IS NAMED as The next human rights Campaign president

The next Human Rights Campaign president is named as Democrats are performing well in polls in the mid-term elections after the U.S. Supreme Court overturned Roe v. Wade, leaving an opening for the LGBTQ group to play a key role amid fears LGBTQ rights are next on the chopping block.

“The overturning of Roe v. Wade reminds us we are just one Supreme Court decision away from losing fundamental freedoms including the freedom to marry, voting rights, and privacy,” Robinson said. “We are facing a generational opportunity to rise to these challenges and create real, sustainable change. I believe that working together this change is possible right now. This next chapter of the Human Rights Campaign is about getting to freedom and liberation without any exceptions ā€” and today I am making a promise and commitment to carry this work forward.ā€

The Human Rights Campaign announces its next president after a nearly year-long search process after the board of directors terminated its former president Alphonso David when he was ensnared in the sexual misconduct scandal that led former New York Gov. Andrew Cuomo to resign. David has denied wrongdoing and filed a lawsuit against the LGBTQ group alleging racial discrimination.

Kelley Robinson, Planned Parenthood, Cathy Chu, SMYAL, Supporting and Mentoring Youth Advocates and Leaders, Amy Nelson, Whitman-Walker Health, Sheroes of the Movement, Mayor's office of GLBT Affairs, gay news, Washington Blade
Kelley Robinson, seen here with Cathy Chu of SMYAL and Amy Nelson of Whitman-Walker Health, is the next Human Rights Campaign president. (Washington Blade photo by Michael Key)
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