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Shutting down Hill’s ‘gayest’ office

Sen. Udall’s staff packing up, looking for new jobs after GOP wave



Mark Udall, gay news, Washington Bladee
Mark Udall, gay news, Washington Blade

From left, David McCoy, John Fossum, Jake Swanton and Mike Sozan (Washington Blade photo by Michael Key)

Take a look inside the Capitol Hill office of Mike Sozan and you get the sense that everything is business as usual.

On a Thursday just weeks after Election Day, the chief of staff for U.S. Sen. Mark Udall (D-Colo.) is typing away at his Mac. On the wall to his left is a shelf covered in photos of family and friends; on the wall to his right is a framed copy of an article from the New York Times on the Senate voting to repeal “Don’t Ask, Don’t Tell.”

You have to step outside his office amid piles of boxes lining the hall to recognize something is amiss. His boss was among the Democratic casualties in the Republican wave on Election Day, which led the GOP to win eight seats in the U.S. Senate and control of Congress.

In addition to the legislative work during the lame duck session of the 113th Congress, Sozan, 45, and other staffers are tasked with closing down Udall’s office. That includes archiving Udall’s work— a process that normally takes a about a year for U.S. senators, but as a result of the loss, must be condensed to the span of six weeks.

On top of that, staffers are assisting each other with finding new jobs, which Sozan said amounts to “operating a head-hunting firm at the same time you’re doing everything else.”

Among the 28 people in Udall’s D.C. office now looking for work are at least four openly gay staffers — three senior members who’ve been with the senator since he took office in 2009 and one junior member — who have worked with the senator on pro-LGBT initiatives.

In addition to Sozan, who works as chief of staff for Udall, the staffers are Jake Swanton, legislative director; John Fossum, administrative and systems director; and David McCoy, a legislative aide.

Having one-seventh of the staff identify as gay has earned Udall’s Senate office the distinction of being one of the most LGBT-friendly on Capitol HIll.

Swanton, 33, who helped drive LGBT policy as part of his legislative work, said that distinction is a source of competition in some circles on Capitol Hill.

“I think there’s very friendly competition among other Senate staff about who has the gayest staff,” Swanton said. “Obviously, it rotates because staff come and staff go, but we have permanently been up there in the highest spot or the top three, I would say.”

It’s also a source of humor. According to Sozan, Udall said during remarks at a closed-door meeting with the Human Rights Campaign’s board of directors in March 2011: “Some of my staffers tell me that I’m considered to have the gayest staff on Capitol Hill. I’m not sure exactly what that means, but it sounds great to me.”

Fossum, 39, said in his role managing Udall’s staff, that efforts were made to include LGBT people, which is why the office procedures manual has a non-discrimination policy inclusive of sexual orientation and gender identity.

“It’s one of the few Senate offices that has done that from the get-go,” Fossum said. “When Mike and I were developing the office policy, it was reflective of the senator, of being accepting for all people regardless of who they are. In some sense, it’s been a non-issue because everyone’s welcome and treated equally here, but it’s also a reflection of the senator on being a good person willing to welcome all people.”

A veteran of Capitol Hill, Fossum helped found the Gay, Lesbian & Allies Senate Staff Caucus, a decade ago when he was working for Harry Reid. Calling that era a “scary time,” Fossum noted the significant changes over the course of 10 years.

“I was knocking on doors in ’04 for the Kerry-Edwards campaign,” Fossum said. “And that was the era of the constitutional amendment to ban same-sex marriage. And to have that dramatic switch in a decade is remarkable. I remember coming out to my boss; I was working for Harry Reid. And he’s like, ‘It’s not a big deal.’ I remember I was really nervous about it.”

Udall’s loss is being felt by staffers and LGBT supporters alike. The wide consensus on the Hill is that any work important to the LGBT community is likely on hold now with Republicans in charge. Udall stood out as a champion of LGBT rights despite his reputation as a moderate and constituency in the “purple” state of Colorado.

McCoy, 29, said that work in part compelled him to join Udall’s office, where his portfolio consists of LGBT issues, education, immigration and agriculture.

“When I started looking into coming to this office, a lot of his work on LGBT issuers really stood out to me,” McCoy said. “I saw numerous statements and press releases, so it definitely made it a very exciting prospect to come join a team and serve a member who has been so forward thinking on these issues for such a long time.”

Mark Udall, gay news, Washington Blade

Jake Swanton and John Fossum (Washington Blade photo by Michael Key)

Shortly after taking office in 2009, Udall took a lead role against “Don’t Ask, Don’t Tell.” Calling on President Obama in 2009 to speed up the repeal process, the senator voted for open service at each opportunity in committee and on the Senate floor.

Sozan, who served as Udall’s point person for efforts to repeal the law, recalled the decision to take the lead on the issue wasn’t universally accepted among staff because some deemed it risky for a new senator from a “purple” state.

“And to his credit, he heard that out and said ‘I’m going to do it, anyway, because I feel the country is catching up to where it needs to be on this. Things are moving forward, and the sign of a good leader is someone who’s willing to take a little bit of risk, step out in front of something and help galvanize public opinion,'” Sozan said. “So, he made a pretty calculated choice in that instance to kind of ignore some of the political advice he was getting about what we would be the safest thing to do, especially to set him up for re-election.”

In 2011, Udall came out in support of marriage equality, beating Obama to the punch, and cosponsored legislation to repeal the Defense of Marriage Act in addition to celebrating the U.S. Supreme Court ruling against the law.

In a video statement at that time, when only six states had legalized same-sex marriage, Udall said, “I support marriage equality. We have work to do. Let’s go do it.”

“I think the way in which it’s unfolding has lessons for all of us,” Udall said. “Let’s work in our states, let’s work with our neighbors, let’s work with our communities, let’s work with our elected officials. And I have no doubt that we’ll soon reach marriage equality in states and across the nation.”

More recently, Udall has worked on ensuring gay veterans living in non-marriage equality states have access to federal spousal benefits guaranteed to former members of the armed forces in opposite-sex marriages.

After the ruling against DOMA, the Obama administration extended benefits to gay married couples to the widest extent possible, but determined current law prohibits the flow of spousal veterans benefits to individuals in same-sex marriages if they live in states without marriage equality.

Udall has called on the administration to reconsider that position, saying refusing those benefits violates the spirit of the DOMA ruling, and in the meantime he co-sponsored legislation to change U.S. code to ensure gay veterans receive equal benefits.

The senator continues work on this effort to make sure it’s done before he leaves office. Just last week, he had a conversation about it with Senate Majority Leader Harry Reid (D-Nev.), Swanton said.

Although he’s optimistic, Swanton was tight-lipped on the actual strategy, saying, “There’s a number of different avenues for that, but we’re going to do it however we can.”

Senator-elect Cory Gardner, who beat Udall, is among the Republican politicians who is less supportive of LGBT issues. Having voted as a state legislator against LGBT non-discrimination protections and adoption rights for same-sex couples, Gardner, a two-term U.S. House member, earned a score of “0” on the Human Rights Campaign congressional scorecard.

When marriage equality became legal just last month in Colorado, the candidate said the issue belongs to the courts “and we must honor their legal decisions,” but sought to change the subject.

“While others might seek to divide Coloradans, I will not do that,” Gardner said. “Coloradans are tired of politicians who spend all their time on partisan hot-button issues that divide our state. We need leaders who are focused on bringing people together on the economic issues that we all agree on.”

Despite the views that Gardner has articulated, Sozan said he can envision Gardner becoming more supportive of LGBT rights based on “just a sense of optimism.”

“In order to represent Colorado well and to have longevity there, at the very least you have to be able to have a viewpoint that is not extremist in either direction,” Sozan said. “I think that if the new senator wants to be successful, he’s going to have to have some views that are in line with where Coloradans are on these issues, or I think there will be some unhappiness with that.”

The day-to-day work load for the staffers isn’t for the feint of heart. It’s a 24/7 gig full of surprises with new legislative work each day and responses to the latest media coverage, which can cripple a social life.

Even though each of the staffers has a list of things to accomplish as they head into work, Swanton said it isn’t really necessary because those plans often go by the wayside.

“You can just go sit down on your desk, and then all of a sudden, it’ll be 7 o’clock and you can think about maybe going home in an hour because things are just constantly happening to you and being thrust on you. And it’s kind of like you’re sitting there and things are just rushing by you like 100 miles per hour, and your job is to figure out which ones to grab and work on those.”

Each of the staffers working in Udall’s office was part of the on-the-ground effort to get Udall re-elected.

Fossum, who used up vacation time to campaign for his boss, said he never before worked for a congressional office where every staffer wanted to participate — even the interns.

“We had interns here, and they got positions as field organizers and they were on our staff,” Fossum said. “And I worked with them when I was out knocking on doors.”

Swanton directed get-out-the-vote efforts in Arapahoe County, the suburbs south of Denver where he grew up; McCoy worked on college campuses in Greeley; Sozan worked throughout the state, including riding on a bus tour with Udall.

“By and large, it was really positive and actually pretty inspirational, especially when you can find somebody who wasn’t going to vote and turn them into a voter,” Sozan said. “You get doors slammed in your face sometimes; you get people who say, ‘No way am I voting for Mark Udall; I’m voting for his opponent.’ Those aren’t the most pleasant of conversations, but you move on to the next door and find an enthusiastic supporter.”

For McCoy, one of the biggest problems with on-the-ground campaign work was countering the negative campaign ads, much of which were funded by outside money.

“Colorado had some of the most outside money flooding into the state, flooding our airwaves,” McCoy said. “A lot of people were just kind of sick of the whole thing. We were trying to return to that person-to-person contact.”

Polls had consistently showed a small lead for Gardner right up until Election Day, but optimism persisted until the very end.

It was relatively early in the night when Gardner was declared the victor. Fox News was the first to call the race in favor of the Republican, followed about a half-hour later by the Associated Press. Udall called Gardner to concede at around 10 p.m. When the dust cleared, Gardner had won 48.5 percent of the votes, compared to the 46 percent won by Udall.

Watching the returns come in at a hotel event in Denver intended to be Udall’s victory celebration, Sozan said the declaration that Udall had lost the election was a “sad moment.”

“It’s never easy to lose a race, of course, especially when you put your heart into it for several years, but Colorado is losing a really terrific senator, the Senate is losing a world-class guy, and we’re all losing the opportunity to continue work on issues that he cares so much about,” Sozan said.

Fossum said he received a text message from his mother that night saying the election results were “so sad for Colorado.”

What went wrong for Udall? Two days before the polls closed, Cokie Roberts on ABC News said Udall ran a “terrible campaign” because of his reliance on women’s issues.

“Going after women on abortion and birth control and all of these things is pandering in a way that women start to just resent,” she said.

The blame for Udall’s loss is a touchy subject among staffers.When asked about it, Swanton attributed the loss to a combination of things, saying, “The election’s over and we need to move on.”

“If everybody in Colorado knew Mark Udall and who he was one-tenth like we do, then he would’ve won in a landslide,” Swanton said. “And so, I don’t think that they did know. Campaigns are tough. It’s tough to communicate a person and their values and what they really believe when everything is done in sound bites.”

In the meantime, his staff is busy looking for new work. Pursuing new work on Capitol Hill is tough thanks to the Democratic losses on Election Day. As they review each other’s resumes, they take calls from people expressing condolences for the loss of their jobs — and the loss of Udall from the Senate.

Drawing on Udall’s experience as a mountaineer who has climbed the highest peaks in Colorado, including the fourteeners (or mountains over 14,000 feet), Fossum put it succinctly: “This ’14 election was a fourteener that he didn’t summit.”

Mark Udall, gay news, Washington Blade

Mike Sozan (Washington Blade photo by Michael Key)


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Honoring the legacy of New Orleans’ 1973 UpStairs Lounge fire

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



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

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

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

“United we stand,” the men would sing together, “divided we fall” — the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to today’s queer safe havens. 

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

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

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

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

As the fire raged, police denigrated the deceased to reporters on the street: “Some thieves hung out there, and you know this was a queer bar.” 

For days afterward, the carnage met with official silence. With no local gay political leaders willing to step forward, national Gay Liberation-era figures like Rev. Troy Perry of the Metropolitan Community Church flew in to “help our bereaved brothers and sisters” — and shatter officialdom’s code of silence. 

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

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

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

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

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

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

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

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

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

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

When a local gay journalist asked in April 1977, “Where are the gay activists in New Orleans?,” Esteve responded that there were none, because none were needed. “We don’t feel we’re discriminated against,” Esteve said. “New Orleans gays are different from gays anywhere else… Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.” 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Business owner seeks to decline services for same-sex weddings



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Progressive activist a veteran of Planned Parenthood Action Fund



Kelley Robinson (Screen capture via HRC YouTube)

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

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

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

Kelley Robinson IS NAMED as The next human rights Campaign president

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

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

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

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