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Wolfson calls for ‘harnessing’ marriage victory

Longtime marriage advocate says ENDA too narrow, broader bill needed



Evan Wolfson, gay news, Washington Blade

‘I think this is a real epic transformation from a despised minority to the freedom to marry,’ said Evan Wolfson. (Washington Blade photo by Michael Key)

The U.S. Supreme Court ruling last week legalizing same-sex marriage in all 50 states was a “transformative” development that should be seized upon by the LGBT rights movement to secure the passage of a federal LGBT civil rights bill much broader than the one now stalled in Congress.

That’s the assessment of Evan Wolfson, founder and president of Freedom To Marry, the New York-based advocacy organization credited with playing a key role in advancing marriage equality across the country since its launching in 2003.

“We now have won the freedom to marry as a matter of law,” Wolfson told the Washington Blade in an interview on the day the Supreme Court issued its landmark ruling.

“But the conversation is only now arriving to many parts of the country,” he said. “And since we’ve seen its transformative power we want to harness it, to build on it going forward, not turn away from it,” Wolfson said.

“And then while doing that we want to map out and begin calling to action the work of winning non-discrimination protections, particularly a federal civil rights bill that would prohibit discrimination on the basis of sexual orientation and gender identity much like federal civil rights law prohibits discrimination on the basis of race and sex and religion.”

Wolfson pushed for same-sex marriage rights through litigation beginning in 1991 in Hawaii, when many in the gay rights movement said the country was not ready for it. Now, following the sweeping victory on marriage equality, he may once again be ruffling some feathers among the establishment LGBT groups by pushing for legislation far broader than the Employment Non-Discrimination Act, or ENDA, which has long been stalled in Congress.

A number of LGBT rights strategists, including former U.S. Rep. Barney Frank (D-Mass.), have said limiting the initial legislation like ENDA to just employment protections was needed because congressional allies did not have the votes needed to pass a broader bill. Wolfson said he believes LGBT organizations are now ready to push for a broader bill.

“And what we need to be pursuing is not ENDA, not only employment protections but comprehensive civil rights protections,” he said. “And I think there’s this pretty strong agreement amongst most of the major organizations and advocates that what we want is the same kind of explicit federal protections for sexual orientation and gender identity that we have for race and sex, religion and other classifications that should not be used to justify discrimination.”

In keeping with an earlier promise, Wolfson said Freedom To Marry will be closing its doors soon because it has fulfilled its mission.

“Freedom To Marry was created as a campaign to drive the winning strategy,” he said. “And the strategy aimed at the goal of winning marriage equality nationwide. And today of course we hit our goal,” he said.

“And so Freedom to Marry will over a matter of months do a smart, strategic wind-down and close. The work of this campaign has now been achieved,” he said. “But the work of the movement is far from over.”

Evan Wolfson on the Supreme Court’s June 26 landmark ruling on marriage equality and what’s next for the LGBT rights movement:


Blade: What are your thoughts on the significance of the Supreme Court’s decision today on marriage equality?

Wolfson: Well we’ve transformed the country to get to this day. And there will be an additional transformation going forward because the power of winning marriage and the clarity and strength of the majority opinion signal that the day of the gay exception is over.


Blade: Do you think opponents of marriage equality will be able to claim the closeness of the vote – it was a 5-4 decision – detracts from the strength of the decision?

Wolfson: No, a 5-4 decision is a win. And I think the majority had the better of the arguments and the dissents are surprisingly tinny and out of touch with the American people and out of touch with the Constitution. Remember, we won 67 or so rulings even before today. And all of these judges found what Justice Kennedy found. So I think we have the better of the legal argument and the constitutional argument and we have a better connection with where the American people have moved. But at the end of the day, a Supreme Court decision is a win. And a win is a win.


Blade: Were those 67 decisions both U.S. district courts and appeals courts?

Wolfson: District and appellate, state and federal – Republican judges as well as Democratic judges. And all of them found what Justice Kennedy found. So I think it’s clear. We’ve moved the American people. We now have the Supreme Court clearly on the side of fairness. And the Constitution commands the freedom to marry and equality under the law. And that includes gay people.


Blade: What, if anything, will have to happen next to clear the way for same-sex couples to marry in the 13 states that did not recognize marriage equality?

Wolfson: I’ve been running around today and haven’t been able to fully monitor everything. But we have on our website our map, which we’re carefully monitoring and tracking the rolling forward and implementation of this decision. And so far I’ve not heard of any problem. And I think it will mostly proceed without problems very quickly. It is a big country. So if there’s an occasional instance of foot-dragging or acting out we will deal with it. But I expect that the vast majority of public officials will follow the law, and the American people are already there.


Blade: Will we see some cases in which a recalcitrant county clerk or marriage bureau official refuses to issue a marriage license because it’s against their religious beliefs?

Wolfson: I think there will be very, very little of that. And after all, when a clerk or an official draws a salary from the taxpayers it’s their duty to serve the taxpayers. And when you take an oath to serve the public it’s your duty to serve the public. And I think that’s clear. And if there is any problem, again, we will deal with it. But I think the overwhelming response is going to be positive and happy and joyous. It’s only going to get better as it goes.


Blade: Can you tell a little about your involvement in the early years of the marriage equality movement? You go back to when Hawaii became the first state where litigation was used to attempt to legalize same-sex marriage.

Wolfson: The Hawaii case was in the ‘90s. It began in 1991 and it ran through 1999. And of course my involvement with the freedom to marry began really a decade earlier when I wrote my thesis advocating for the freedom to marry back in 1983. I’ve been working on this for 32 years. And we’ve obviously had many steps forward and many stumbles and happy years and difficult years. But I always believed we would win if we kept doing the work. And today America proved me right.


Blade: What’s next for you? You have said that if the Supreme Court ruled as it has today you would eventually disband Freedom to Marry as an organization. Is that still the plan?

Wolfson: Yeah. Freedom to Marry was created as a campaign to drive the winning strategy. And the strategy aimed at the goal of winning marriage nationwide. And today of course we hit our goal. And so Freedom to Marry will over a matter of months do a smart, strategic wind-down, and close. The work of this campaign has now been achieved. But the work of the movement is far from over.


Blade: Do you have any thoughts on what the movement should do next?

Wolfson: I do. I think two big priorities for the movement right now are, number one, to harness the power of the marriage win to bring that conversation – reclaiming this vocabulary of marriage and the visibility it gives to couples and the empathy and understanding it awakens to seize that and bring it to the parts of the country where we will only have just begun. We now have won the freedom to marry as a matter of law. But the conversation is only now arriving to many parts of the country.

And since we’ve seen its transformative power we want to harness it, to build on it going forward, not turn away from it. And then while doing that we want to map out and begin calling to action the work of winning non-discrimination protections, particularly a federal civil rights bill that would prohibit discrimination on the basis of sexual orientation and gender identity much like federal civil rights law prohibits discrimination on the basis of race and sex and religion.

And while pursuing a federal bill we also want to win as many state and local non-discrimination measures as possible, both because they’re important in their own right and because they can be a building block – building blocks to the federal protections that we need. And the one other thing that I would add is that while doing all that legal and political work hopefully with the same kind of campaign focus we eventually brought to the marriage work, we should be remembering that it’s not just about the law. It’s also about improving people’s lives, making sure kids are growing up safe and secure and able to dream, making sure that seniors are aging with dignity and not forced back into the closet because we don’t have the facilities and services to help them. So it’s about lives, not just laws.


Blade: Speaking about laws, today we heard some of the Republican presidential candidates say they will push for a constitutional amendment to overturn this Supreme Court ruling. What are your thoughts on the chances of that happening?

Wolfson: I think the chances of that happening are even less than the chances of some of those same guys ever getting the presidency.


Blade: Is that because you feel the sentiment in the country is such that the required three-fourths of the state legislatures would not pass a constitutional amendment of this kind?

Wolfson: The American people support the freedom to marry by more than 60 percent and it’s only going to grow. The latest poll two days ago reported that 57 percent wanted the Supreme Court to rule nationwide as a matter of a constitutional right. It’s going to be a little difficult going from that level of support with all the facts on the ground of couples married and complete happiness and nothing bad happening – and turning all of that into the three-quarters support for a constitutional amendment to cement discrimination that the American people don’t favor in the first place is not going to happen. They are demagogueing to their base and history will not judge them kindly and nor will the polls today.


Blade: Concerning a federal LGBT civil rights bill, you’ve been credited with pushing the envelope by advocating for marriage equality in the early 1990s starting with Hawaii. Are the establishment LGBT rights groups being too timid in pushing for the Employment Non-Discrimination Act, or ENDA, which is limited to just employment protection? Should we be adding housing and public accommodations protections to ENDA?

Wolfson: I’m not talking about ENDA. On ENDA – many of us came out against the version that others were pursuing. And what we need to be pursuing is not ENDA, not only employment protections but comprehensive civil rights protections. And I think there’s this pretty strong agreement amongst most of the major organizations and advocates that what we want is the same kind of explicit federal protections for sexual orientation and gender identity that we have for race and sex, religion and other classifications that should not be used to justify discrimination.


Blade: Do you think we are now beyond where we were in past years when some black civil rights leaders objected to opening up the Civil Rights Act of 1964 to an amendment to add protections for gay people out of fear that opponents of civil rights would try to weaken that law for blacks and others who are covered by the law?

Wolfson: I think you are kind of mixing two different things. One is the broader point I’m making, which is that we should be pursuing federal civil rights protections across the board. The question of how you do that as a matter of legislative drafting – whether you do it by amending civil rights statute or whether you have another bill that goes alongside those bills like, for example, what we did with the ADA, the Americans With Disabilities Act — that’s a different question. And that I think we will sort out hopefully soon. But we don’t have to start that today.

What I’m saying today is our goal should be a federal civil rights law that prohibits discrimination broadly on the basis of sexual orientation and gender identity. The question of the mechanics of how to do that is something we will turn to in the weeks ahead. And others will hopefully build the same kind of campaign to drive that strategically as we did with the freedom to marry.


Blade: And we feel the country is ready for that now?

Wolfson: Well not only do I feel the country is ready, I think the polling shows nearly 90 percent support for non-discrimination protections. The challenge is that the American people don’t fully realize that we don’t already have it. So what we need is a robust conversation and a smart campaign to get what the majority already favors passed into law. With marriage we had a bigger challenge. We first had to persuade the majority. Then we had to bring it into law. We’re ahead of the game here. We just have to get the kind of campaign and the kind of commitment and the smart strategy underway.


Blade: People like former Rep. Barney Frank have been saying we didn’t have the votes to do that in Congress.

Wolfson: Well that may have been true at one time but that doesn’t mean you just stop. It means you start. Go get the votes.


Blade: Is there anything else you’d like to add to the importance of the Supreme Court ruling today?

Wolfson: I think this is a real epic transformation from a despised minority to the freedom to marry. And now we need to build on that and keep going. And it’s a real win for gay people; but it’s as profoundly a win for America. Everybody won today.


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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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