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RNC set to vote on anti-gay resolutions at summer meeting

Proposal call for action on same-sex marriage, sex education in schools



Dave Agema, gay news, Washington Blade
Dave Agema, Republican Party, gay news, Washington Blade

Dave Agema is proposing an anti-gay resolution for the RNC. (Photo public domain)

In the same week Republican presidential candidates are scheduled to slug it out in their first official debate, the Republican National Committee is set to vote during its summer meeting on resolutions against same-sex marriage and in favor of anti-gay sex education in schools, the Washington Blade has learned.

The Blade obtained the text of two proposed anti-gay resolutions and a third relatively pro-gay counter-proposal on the table for discussion during the upcoming meeting in Cleveland.

If the RNC were to adopt any of the non-binding resolutions next week, it would be the first official act of the Republican Party on the marriage issue following the historic U.S. Supreme Court decision last month in favor of marriage rights for same-sex couples. The initial vote could take place during the executive committee meetings on Wednesday and Thursday, where a successful vote would lead to consideration at the full committee meeting on Friday.

One resolution, titled “Resolution for Balanced Sex-Ed in Schools,” was introduced by former Michigan State House lawmaker and RNC member Dave Agema. It encourages schools “teaching the homosexual lifestyle in their sexual education class” to “also include the harmful physical aspects of the lifestyle.”

The resolution is based on the belief the Republican Party “supports the institution of traditional marriage,” which is considered code for opposition to same-sex marriage. The proposal is also based on questionable assertions that American culture “is portraying the homosexual lifestyle as an attractive option for school-aged children” and the Journal of Acquired Immune Deficiency Syndromes says being gay takes up to 21 years off a person’s life.

Tempering the resolution is language saying Republicans believe all people should be treated with respect and dignity. The measure also calls for partnerships with parents for, among other things, efforts to “increase adolescent education on the spectrum of risks involved in alternative lifestyle.”

The resolution sponsor, Agema, is the same RNC member who has repeatedly landed in hot water for making anti-gay, racist and anti-Muslim posts on Facebook, such as an endorsement of Russia’s anti-gay propaganda law and an article saying gay people are “filthy,” frequently pedophiles and responsible for 50 percent of U.S. murders. Republican National Committee Chair Reince Preibus and Michigan Republican Party Chair Bobby Schostok have called on Agema to step down and the RNC has censured him, but no explicit mechanism exists to expel him from the RNC and he has remained in his post.

In response to a Blade email seeking comment on the proposal, Agema implicitly confirmed its accuracy, but had nothing further to say.

“First, how did you get a copy of this?” Agema said. “If you could answer this question please. Second, I don’t comment until after deliberations on the resolutions.”

Another resolution, titled “To Reserve, Strip and Pursue,” was introduced by Republican National Committee member Ross Little of Louisiana. The proposal responds to the U.S. Supreme Court ruling on same-sex marriage by calling for action from Congress saying the ruling violates the U.S. Constitution.

The measure criticizes the marriage decision “as lacking any warrant in the text, logic, structure or original understanding of the constitution,” arguing it ignores freedom of religion under the First Amendment and powers reserved to the states. The resolution says restricting marriage to one man, one woman is underpinned by the Bible, millennia of experience and U.S. Associate Justice Anthony Kennedy’s 2013 decision upholding the right of states to define marriage in the ruling against DOMA.

The proposal calls on Congress to defy the Supreme Court by passing, in accordance with the Tenth Amendment, legislation saying marriage laws and recognition of marriages is the exclusive province of the states, although states shouldn’t be able to legalize polygamy or prohibit interracial marriage. Further, in accordance with Article III of the U.S. Constitution, the resolution seeks legislation stripping federal courts of jurisdiction over marriage issues.

Little had no comment on the proposed resolution when reached by phone.

Another counter resolution in response to those proposals sponsored by Maryland RNC member Diana Waterman is also slated for consideration. That proposal starts by referring to the Growth & Opportunity Report, which in 2013 called for GOP inclusion of gays and other groups. The resolution says the court has ruled on marriage and candidates, not the RNC, should be commenting further on the decision, but Republicans should nonetheless “support and promote our nominee, regardless of their expressed opinion on Obergefell v. Hodges.”

Co-sponsors of the resolution are RNC members from D.C. Robert Kabel, Jill Homan and Jose Cunningham, who are gay.

The RNC didn’t respond to multiple requests for comment on any of the resolutions, although multiple sources have confirmed they’re on the table.

TJ Helmstetter, a DNC spokesperson, slammed the RNC for consideration of the proposed anti-gay resolutions.

“Even though marriage equality is now the law of the land, Republicans are still pursuing the same divisive and outdated anti-gay, anti-equality agenda,” Helmstetter said. “Move on, GOP, embrace the times.”

Here’s the Dave Agema resolution:

From Dave Agema:


Whereas the Republican Platform supports the institution of traditional marriage and believes it will determine the success as a nation; AND

Whereas, the Republican Platform states that education is more than schooling, that it is the whole range of activities by which families and communities transmit to a younger generation, not just knowledge and skills, but ethical and behavioral norms and traditions; AND

Whereas, the Republican Platform states that American education has been the focus of constant controversy, as centralizing forces outside the family and community have sought to remake education in order to remake America; AND

Whereas, the Republican Platform supports the right of parents to consent to medical treatment including mental health and drug treatment which includes giving our children accurate information about behavioral choices that could affect their health and welfare; AND

Whereas, we teach our children the hazards of smoking that can take up to 10 years off their life according to the New England Journal of Medicine; AND

Whereas, the popular culture is portraying the homosexual lifestyle as an attractive option for school-aged children; AND

Whereas, according to the Journal of Acquired Immune Deficiency Syndromes (JAIDS) participation in the homosexual lifestyle can take up to 21 years off one’s life; AND

Whereas, one of the fastest growing age groups getting HIV are 13-24 year olds according to the Center for Disease Control (CDC-HIV Among Youth-Age-Risk-HIV/AIDS); AND

Whereas, the CDC reports that over 50% of the youth infected with HIV don’t know that they are infected (CDC- HIV Among Youth – Age- Risk-HIV/AIDS); AND

Whereas, the prevalence of having been taught in school about HIV infection or AIDS decreased from 92% in 1997 to 85% in 2013; AND

Whereas, the CDC states that continual HIV prevention outreach and education efforts, including programs on abstinence, delaying the initiation of sex, and negotiating safer sex for the spectrum of sexuality among youth—homosexual, bisexual, heterosexual, and transgender—are urgently needed for a new generation at risk.

THEREFORE BE IT RESOLVED; the National Republican Party:
1. Embraces the principle that all Americans should be treated with respect and dignity;
2. Encourages schools that are teaching the homosexual lifestyle in their sexual education class also include the harmful physical aspects of the lifestyle;
3. Encourage the partnership with parents to deliver exemplary sexual health education emphasizing HIV and other STD prevention, increase adolescent education on the spectrum of risks involved in alternative lifestyles, and establish safe and supportive environments for students and staff.

Here’s the Ross Little resolution:

To Reserve, Strip & Pursue
Resolution for the Republican National Committee
On the Restoration of Marriage in Response to Obergefell v. Hodges
By Ross Little, Jr., Republican National Committeeman, Louisiana

WHEREAS, The Supreme Court in a 5-4 ruling in the case of Obergefell v. Hodges, a decision lacking any warrant in the text, logic, structure or original understanding of the constitution, with no basis in the Constitution, nor in the precedent of the Court[1], nor in the history of this nation[2], acting beyond its constitutional bounds by declaring marriage between two persons of the same sex to be a newly invented “fundamental right,” requiring state authorities and officials to license marriages between persons of the same sex, overturning the law of 34 states, and ignoring the First Amendment provision of free exercise of religion, has usurped the powers reserved by the Constitution to the states and to the people;
WHEREAS, Marriage has always been understood in our law and in the philosophical traditions supporting it, as the conjugal union of a husband and a wife, instituted by God as set forth in the Bible, supported by religion, proved by millennia of experience, recognized by all those who framed and ratified the United States Constitution[3], by all of the founding states[4], by all of the states at the time the Fourteenth Amendment was adopted[5], and by all of the states up until 2003; all these facts having been ignored by the majority in Obergefell;
WHEREAS, The Supreme Court’s effort to redefine marriage creates an inevitable clash[6] between the government and the First Amendment right to the free exercise[7] of religion;
WHEREAS, Justice KENNEDY, who wrote the majority opinion in Obergefell, wrote the following, for the same majority justices, just two years ago in U.S. v Windsor, invalidating a federal law defining marriage, in part based on the doctrine that state courts have virtually exclusive jurisdiction over family law matters:
“Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”[8] (emphasis mine)
“The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.”[9] (emphasis mine)
“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.”[10] (emphasis mine)
“The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests and the enforcement of marital responsibilities.”[11] (emphasis mine)
“The states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce and the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.”[12] (emphasis mine)
“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”[13]
“Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”[14]
“…[T]here is no federal law of domestic relations … .”[15]
“In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction.”[16] (emphasis mine)
“Federal courts will not hear divorce and custody cases even if they arise in diversity because of the virtually exclusive primacy of the States in the regulation of domestic relations”[17] (emphasis mine)
“The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.”[18] (emphasis mine)
“Marriage laws vary in some respects from State to State.”[19]
WHEREAS, the Tenth Amendment to the U.S. Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;”
WHEREAS, Article III of the Constitution authorizes Congress to establish and determine the jurisdiction of all inferior federal courts, and to regulate and make exceptions to the appellate jurisdiction of the Supreme Court, which Congress has done on numerous occasions;
WHEREAS, despite the majority claim that the opinion was based on the Constitution, it appears that Obergefell was based neither on the Equal Protection Clause[20], nor the Due Process Clause[21] of the 14th Amendment to the Constitution. According to Chief Justice Roberts, joined with Justices Scalia and Thomas, this newly invented right “has no basis in the Constitution or this Court’s precedent.”
WHEREAS, the majority opinion completely ignored the first amendment, with absolutely no mention[22] of the constitutional guarantee of free exercise of religion and no consideration of the religious nature of marriage;[23]
WHEREAS, this case continues a trend in which a divided Supreme Court has taken one side of a controversial issue in favor of expansion of Federal Courts’ power, and the Federal Government diminishing the right and role of state courts, state governments, and of the people[24];
WHEREAS, because the definition of marriage is the foundation of all family law, this Federal Courts’ assertion of jurisdiction over the definition of marriage thus amounts to a significant step in the federal takeover of marriage and family law, in accordance with the wishes of liberal-leaning commentators[25]. After all, “if an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”[26]
WHEREAS, Congress should, in accordance with and in pursuance of the Tenth Amendment to the U.S. Constitution, and generally in harmony with the law at the time of the adoption of the Constitution until this year, adopt legislation establishing that questions involving marriage and family law, including, but not limited to issues of marriage, community property, inheritance, divorce, alimony, child support, child custody, and the definition of marriage (with the proviso that states would not be authorized to allow marriage of other than two persons, nor would they be authorized to prohibit interracial marriage) and the recognition of marriage between states are matters reserved to the states;
WHEREAS, Congress should, in accordance with and in pursuance of Article III of the Constitution, and in harmony with a long line of U.S. Supreme Court Cases[27], adopt legislation removing from the jurisdiction of all inferior federal courts and from the appellate jurisdiction of the U.S. Supreme Court for all cases and controversies, questions involving marriage and family law, including, but not limited to issues of marriage, community property, inheritance, divorce, alimony, child support, child custody, and the definition of marriage and the recognition of marriage between states.
WHEREAS, Litigants in marriage and family law would continue to have an adequate, fair and traditional forum to litigate both marriage cases and their related issues, including constitutional issues, in the State Courts;

Therefore, be it Resolved that the Republican National Committee calls upon Congress, in accordance with and in pursuance of, the Tenth Amendment to the U.S. Constitution, to adopt legislation establishing that questions involving marriage and family law, including but not limited to issues of marriage, community property, inheritance, divorce, alimony, child support, child custody, and the definition marriage (with the proviso that states would not be authorized to allow marriage of other than two persons, nor would they be authorized to prohibit interracial marriage), and the recognition of marriage between states, are matters reserved to the states and are thus the exclusive province of the States;

Be it Further Resolved that, the Republican National Committee calls upon Congress, in accordance with and in pursuance of, Article III of the Constitution to adopt legislation removing from the jurisdiction of the lower federal courts and from the appellate jurisdiction of the U.S. Supreme Court for all legal cases and controversies, questions involving marriage and family law, including, but not limited to issues of marriage, community property, inheritance, divorce, alimony, child support, child custody, and the definition of marriage, and the recognition of marriage between states.

Be it Further Resolved that the Secretary of the Republican National Committee is authorized and directed to send this resolution to currently serving Republican Congressman, Senators, Governors, Secretaries of State and Attorneys General; in addition to the Republican State Committees of every State.

Here’s the Diana Waterman resolution:

Whereas the Republican National Committee adopted the Growth and Opportunity Project report in March, 2014 after the disappointing results of the 2012 Presidential election.

Whereas this RNC’s Growth and Opportunity Project report made several good recommendations for expanding the base of the Republican party through more effective messaging to constituencies important to the future success of the Republican party, including, but not limited to, Hispanics, women and millennials.

Whereas the RNC’s Report recognized the significant influence of younger voters to the success of Republican candidates; and recognized that 18-29 year old voters were the second largest block of voters to support President Obama in the 2012 election.

Whereas the Growth and Opportunity Project report identified that voters aged 18-29 expressed strong commitment to preserving equal rights and opportunity for all Americans, including all minority populations; and expressed concern that the Republican party was not committed to preserving equal rights and opportunity for all minority populations.

Whereas the U.S. Supreme Court in Obergefell v. Hodges, held that states must permit equal rights to marry for same sex couples.

Whereas declared Republican candidates for President have already responded to the Obergefell v. Hodges Supreme Court decision and each expressed their personal views on the decision.

Whereas the Republican National Committee primary purpose is to support our Republican nominee and win the White House.

Therefore, be it RESOLVED that the Republican National Committee recognizes and respects the right of Republican presidential candidates to express their individual positions on this Supreme Court decision and reiterates our commitment to support and promote our nominee, regardless of their expressed opinion on Obergefell v. Hodges.


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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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