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LBJ’s gay purge
Newly discovered documents shed light on 1960s-era White House scandal that led to ouster of 2 senior aides
President Lyndon B. Johnson requested the resignation of his longtime aide Walter Jenkins after he was arrested a second time for having sex at a YMCA near the White House, according to newly released documents. A second aide, who was revealed to be gay, was also ousted. (White House photo by Yoichi Okamoto)
President Lyndon B. Johnson’s longtime aide and White House special assistant Walter Jenkins, whose 1964 arrest for alleged “homosexual conduct” created an uproar in the midst of Johnson’s re-election campaign, revealed in a confidential memo that another longtime Johnson aide was accused of engaging in homosexual acts, according to documents released for the first time last month by the LBJ Library in Austin, Texas.
The newly released documents include an October 1964 draft memo attributed to Jenkins that reveals that a government background check discovered that White House secretary and Johnson family friend Robert “Bob” Waldron “had engaged in homosexual acts” in the recent past.
The Washington Blade obtained copies of the documents from the Mattachine Society of Washington, which spent months working with LBJ Library officials to identify and discover the documents from the library’s voluminous collections.
The group, which is headed by veteran gay rights advocate Charles Francis, has taken the name of the organization co-founded in the early 1960s by gay rights pioneer Frank Kameny as D.C.’s first gay rights group.
The recently revived version of the group specializes in obtaining government documents, long withheld from the public, that tell how thousands of gays were fired from federal jobs during the post-World War II era of anti-gay witch hunts.
Francis said he and Mattachine board member Pate Felts, with the help of the law firm McDermott, Will & Emery, which serves as pro bono counsel for the group, traveled to the LBJ Library to retrieve the documents with the full cooperation of library officials.
Charles Francis (left) and Pate Felts reviewing documents in the LBJ Library document reading room in Austin. (Photo courtesy Francis)
The Johnson White House at the time disclosed that Jenkins resigned from his job at Johnson’s request shortly after his 1964 arrest for allegedly having sex with a man in the men’s room at a YMCA facility located near the White House. An FBI report released as part of the LBJ documents, but that had been reported in the media earlier, says Jenkins had been arrested in 1959 on a similar “morals” charge at the same YMCA bathroom as the 1964 arrest.
A source who knew Waldron told the Washington Blade that Johnson also terminated Waldron from his White House position after Jenkins’ 1964 arrest, even though Waldron was never accused of wrongdoing and was never publicly identified as gay at the time he worked for Johnson. In addition to working at the White House as a presidential secretary he had been retained to perform similar duties for Johnson during Johnson’s tenure as Senate Majority Leader and U.S. vice president during the Kennedy administration.
Waldron states in an oral history released as part of the LBJ Library documents that he told friends and associates in 1964 that he decided to change careers and left his White House job voluntarily to enroll in an interior design school in New York. He became a nationally acclaimed interior decorator based in Washington, doing decorating work for prominent political figures for 26 years, and remained friends with the Johnson family.
He died in December 1995 of complications associated with AIDS at the age of 68.
“Every decorator in D.C. knew that Waldron was gay as did most of his clients,” said the source who knew him and who spoke to the Blade on condition of not being identified. “He most definitely was not a closeted gay man, nor did he make any attempt to hide his orientation.”
According to the source, unlike Jenkins, who was married with six children, Waldron was a lifelong bachelor. He regularly took on the role as escort at White House functions and on presidential trips abroad for another longtime Johnson administrative aide, Mary Margaret Wiley. But it was widely known that the relationship between the two was strictly platonic, the source and others who knew them have said.
Waldron, a native of Texas, says in his oral history that he attended Northwestern University to study court reporting and later attended “business school” in Texas. He says in his oral history that “nearing finishing a degree and no job I went to law school.” While finishing his second year at law school he says he accepted an offer in 1955 by Congressman Homer Thornberry (D-Texas) to take a job as administrative assistant in Thornberry’s congressional office in Washington. That job brought him to Washington, where he remained for the rest of his life.
It couldn’t be confirmed whether Waldron completed and graduated from any of the colleges or law school he attended. He states in his oral history that he had “no intensions of practicing” law.
Waldron stated in his oral history that he took notes at Johnson’s request as Johnson conferred with his inner circle advisers at the 1960 Democratic National Convention in Los Angeles when John F. Kennedy sent word that he would like Johnson to become his vice presidential running mate.
After Johnson accepted Kennedy’s offer, Johnson and his wife, Lady Bird Johnson, who became good friends with Waldron, invited Waldron and Wiley to join them on the convention stage along with Johnson and Kennedy’s family members and close friends as the Kennedy-Johnson ticket was introduced to tumultuous applause in the packed convention hall.
Waldron points out in his oral history that during nearly all of the years he worked for Johnson he remained on the payroll of Texas Congressman Homer Thornberry, who was a close Johnson friend and political associate.
“Homer I know called numerous times and said Bob is spending all of his time with you, why don’t you transfer him to your payroll?” the source that knew Waldron as well as Thornberry said. “And for whatever reason they just kept cajoling Thornberry to keep him on his payroll.”
The source speculated that one possible reason Johnson didn’t want to officially appoint Waldron to his staff was because he or Jenkins, who was in charge of hiring Johnson’s staff, were reluctant to directly hire someone who might be identified as gay.
Jenkins, meanwhile, had served on Johnson’s payroll beginning in 1939, shortly after Johnson won election as a congressman from Texas. Jenkins left the staff to serve in the Army during World War II before leaving the military as a major. At Johnson’s urging, he ran for a seat in the U.S. House in 1951, but lost his race. He later joined Johnson’s U.S. Senate staff and remained with Johnson during Johnson’s tenure as Senate Majority Leader, vice president and president.
Arrested at the YMCA
Among the newly released documents from the LBJ Library is a personal remembrance of Johnson from yet another longtime Johnson administrative staffer, Mildred Stegall, who worked for Johnson nearly as long as Jenkins had and worked closely with Jenkins.
“One of the saddest days of the president and my lives was the day President Johnson asked for Walter’s resignation due to reported misconduct,” Stegall wrote. “It was a tremendous loss because Walter was like the president’s right arm and the most valuable member of the staff and I think the most capable.”
Added Stegall, “I can’t begin to count the times the president asked me, ‘What do you think happened?’ My answer was always the same. ‘I simply do not know.’”
Stegall noted that Jenkins checked himself into George Washington University Hospital after his arrest, where doctors said he was suffering from exhaustion and emotional distress.
“I have always thought that Walter’s resignation was asked for too quickly,” she wrote. “Had he stayed in the hospital for several weeks with a reported nervous breakdown the matter might have blown over, but there was no way to know and the president took the only course he thought he could take.”
An FBI report on the Jenkins arrest, dated Oct. 22, 1964, says Johnson asked FBI Director J. Edgar Hoover to arrange for a “full and complete investigation” when he learned of Jenkins’ arrest one week after it took place on Oct. 7 of that year.
The report says Jenkins, then 46, attended a party with his wife that day at the new offices of Newsweek magazine before the two left the party about 8 p.m. It says Jenkins planned to return to his White House office to work in the evening as he often did. But the report says he apparently decided to make a stop someplace else before returning to work.
“At 8:15 p.m. Mr. Jenkins was arrested in the basement men’s room of the YMCA Building, 1736 G Street, N.W., Washington, D.C., by officers of the Metropolitan Police Department,” the FBI report says. “Arrested at the same time for engaging in an indecent act with Mr. Jenkins was Andy Choka, a 60-year-old retired Army enlisted man.”
The report adds, “Mr. Jenkins made no attempt to hide his identity from the officers, willingly accompanied them and admitted to having been arrested one previous time on a morals charge. The previous arrest occurred shortly before 10:30 p.m. January 15, 1959, in the same basement men’s room of the YMCA. He was charged with loitering for indecent purposes.”
It says Jenkins was released following the 1959 arrest after posting and forfeiting $25 collateral. Following his 1964 arrest, he and Choka were released after each posted $50 collateral, the report says.
The report says an apparent miscommunication between D.C. police, the FBI and the U.S. Secret Service resulted in the White House not being informed of Jenkins’ 1959 arrest at the time Jenkins received his White House security clearance in 1961 when he began work for then-Vice President Johnson.
“Mr. Jenkins was interviewed by the FBI on Oct. 18, 1964, and admitted having engaged in the indecent acts for which he was arrested in 1959 and 1964, the report says. “He claimed that he had been ‘enticed’ by the arresting officer on the former occasion and that his mind was befuddled by fatigue, alcohol, physical illness and lack of food the latter time.”
The report says an extensive background investigation turned up no evidence that Jenkins compromised government secrets or acted in any way against the interests of the country or the government.
“A favorable appraisal of Mr. Jenkins’ loyalty and dedication to the United States was given the FBI by more than 300 of his associates, both business and social, representing divergent political backgrounds, who were interviewed in this investigation,” the report says.
Waldron ‘outed’ by Jenkins?
The FBI report had been released shortly after the investigation into Jenkins’ 1964 arrest. But the LBJ Library documents released to the Mattachine Society of Washington last month included for the first time several drafts of an internal memo that Jenkins reportedly prepared to “clarify” and take strong exception to some of the statements attributed to him in the FBI report.
Among other things, Jenkins said in all of the drafts of the memo that the FBI report could give the impression to some that he might have associated with people who may have engaged in homosexual conduct, even though the report didn’t say this directly.
“Never in my years of government employ, with one single and limited exception, did I associate with any person employed by any branch of the government, or any other office, whether employed by the government or otherwise – known to me to be a homosexual,” he stated in one of the drafts.
“The one exception,” Jenkins wrote, “is Mr. Bob Waldron. The relevant facts in his case are as follows: Mr. Waldron was employed by Congressman Homer Thornberry over a period of some years. From time to time he was loaned to the staff on which I was working because of his exceptional skill as a stenographer and typist,” Jenkins says in the draft memo.
He says at the time when Thornberry left Congress to become a federal judge, Waldron applied for a job with the National Aeronautics and Space Council and underwent a background check for that position.
“The field investigation of Mr. Waldron came to my attention, and it contained information alleging that Mr. Waldron had engaged in homosexual acts,” Jenkins wrote. “I did not know, and I do not know at this time, whether Mr. Waldron was or is in fact a homosexual, but I thought that the allegations were sufficient to warrant my recommending that Mr. Waldron’s application should be rejected. It was rejected.”
He states in his draft memo that the rejection of the application took place in January 1964.
“Thereafter, on a few occasions, I was present at large social gatherings where Mr. Waldron was also present,” the memo says. “This was the limit of my association with him after receiving the allegations described above. I reiterate that this is the sole exception to the categorical statement made above.”
What appears to be the final version of the Jenkins memo, dated Oct. 27, 1965 and which bears Jenkins’ name but not his signature, Waldron’s name is omitted. He is described only as a “person employed by a member of Congress” who from time to time was loaned to the staff where Jenkins worked – meaning Johnson’s staff.
The source who knew both Waldron and Jenkins believes Johnson and his White House legal advisers were clearly informed of the earlier draft that named Waldron as having been linked to “homosexual acts.” The source also thinks White House legal advisers may have played a role in drafting the memo for Jenkins.
Coming at the time of the Jenkins arrest, the source said Johnson and his advisers most likely decided to let Waldron go out of concern that he could have triggered yet another “homosexual” scandal at the White House.
Francis agrees with that assessment, saying Waldron, like Jenkins, became expendable despite his years of loyal service to Johnson.
Creating ‘revulsion’ among co-workers
Jenkins and Waldron’s departure from the White House came at a time when Kameny and his gay rights associates organized protests outside the White House calling for an end to the U.S. Civil Service Commission ban on gay civilian workers at all federal government agencies and departments.
Kameny’s correspondence to then-Civil Service Commission director John Macy prompted Macy to send Kameny his now infamous “revulsion” letter in which Macy said the Commission would not lift its ban on homosexual employees because such employees were sexual “deviates” and would create revulsion among their co-workers.
John Macy, head of the U.S. Civil Service Commission in the 1960s, who referred to homosexuals as perverts and led efforts to fire gays from the federal workforce.
President Kennedy appointed Macy as head of the Civil Service Commission and Johnson retained him after assuming the presidency.
“The confidential Jenkins file safeguarded by Mildred Stegall shows how quickly a ‘bachelor’ family friend, who was as close as one could get to LBJ, could be transformed into a ‘sexual deviate’ and thrown overboard,” Francis said in discussing Waldron’s fate.
“Mainstream Johnson historians like Doris Kearns Goodwin and Robert Caro need to address the tumultuous investigations and destruction of gay and lesbian Americans beginning in the late 1940s and early 1950s and continuing and even intensifying through the Johnson years,” Francis said.
Others familiar with the Johnson administration have said the political realities of the time, especially the 1964 presidential election in which Johnson was running against Republican Barry Goldwater, made it impossible for Johnson to do anything other than jettison Jenkins and Waldron.
After Johnson left the White House in 1969 he and Lady Bird welcomed both Jenkins and Waldron to the LBJ Ranch in Texas and resumed his friendship with the two men.
Jenkins died in November 1985 at the age of 67 from a stroke.
Bill Moyers, one of Johnson’s presidential press secretaries and a longtime Johnson staffer, appeared to sum up the views of those who knew and worked closely with Jenkins during the Johnson years in a 1999 interview with Out magazine.
“When they come to canonize political aides [Jenkins] will be the first summoned, for no man ever negotiated the shark-infested waters of the Potomac with more decency or charity or came out on the other side with his integrity less shaken,” Moyers said. “If Lyndon Johnson owed everything to one human being other than Lady Bird, he owed it to Walter Jenkins.”
Moyers questioned in Jenkins case
Another of the LBJ Library documents released last month to the Mattachine Society of Washington is a Jan. 15, 1965 letter from J. Edgar Hoover to President Johnson informing Johnson that an FBI agent one week earlier heard a “rumor” that [presidential advisor Bill] Moyers posted the $25 bond for Jenkins’ release in connection with Jenkins’ 1959 arrest at the YMCA.
The rumor was that an unidentified D.C. police sergeant “knew” that Moyers posted the bond, Hoover said.
“Without making any open inquiry into the matter, it has been discreetly determined that copies of collateral receipts maintained by the Metropolitan Police Department have been destroyed and there is no way to determine by documentary evidence who, if anyone other than Mr. Jenkins, posted collateral for him in connection with his arrest on Jan. 15, 1959,” Hoover told Johnson.
“The above is being furnished for your information and no investigation to identify and interview the unnamed sergeant will be conducted in the absence of a specific request from you,” Hoover wrote in his letter.
The documents released by the LBJ Library to Mattachine Society do not include a reply by Johnson to Hoover’s letter.
“[T]his is a rumor and totally unfounded in fact,” Moyers replied in a Jan. 18, 1965 letter to Hoover. “I was attending Southwestern Baptist Theological Seminary in Fort Worth, Texas, at the time,” Moyers states in his letter. “I was not in Washington on any date between 1954 and January, 1960,” Moyer said, adding, “I have never posted bond for Mr. Jenkins or, for that matter, anyone else.”
Moyers, who later became a nationally known journalist, couldn’t immediately be reached by the Blade for comment on the Hoover letter.
President Lyndon B. Johnson rekindled his friendship with two former aides who were ousted in gay scandals, but only after he left office. (White House photo by Arnold Newman)
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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
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.
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.”
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.”
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, 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, a Black, queer woman and veteran of Planned Parenthood Action Fund, is to become the next president of the Human Rights Campaign, the nation’s leading LGBTQ group announced on Tuesday.
Robinson is set to become the ninth president of the Human Rights Campaign after having served as executive director of Planned Parenthood Action Fund and more than 12 years of experience as a leader in the progressive movement. She’ll be the first Black, queer woman to serve in that role.
“I’m honored and ready to lead HRC — and our more than three million member-advocates — as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,” Robinson said. “This is a pivotal moment in our movement for equality for LGBTQ+ people. We, particularly our trans and BIPOC communities, are quite literally in the fight for our lives and facing unprecedented threats that seek to destroy us.”
The next Human Rights Campaign president is named as Democrats are performing well in polls in the mid-term elections after the U.S. Supreme Court overturned Roe v. Wade, leaving an opening for the LGBTQ group to play a key role amid fears LGBTQ rights are next on the chopping block.
“The overturning of Roe v. Wade reminds us we are just one Supreme Court decision away from losing fundamental freedoms including the freedom to marry, voting rights, and privacy,” Robinson said. “We are facing a generational opportunity to rise to these challenges and create real, sustainable change. I believe that working together this change is possible right now. This next chapter of the Human Rights Campaign is about getting to freedom and liberation without any exceptions — and today I am making a promise and commitment to carry this work forward.”
The Human Rights Campaign announces its next president after a nearly year-long search process after the board of directors terminated its former president Alphonso David when he was ensnared in the sexual misconduct scandal that led former New York Gov. Andrew Cuomo to resign. David has denied wrongdoing and filed a lawsuit against the LGBTQ group alleging racial discrimination.
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