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EXCLUSIVE: Blade’s Q&A with Hillary Clinton

‘I want LGBT people to know that I will always have your back’

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National Gay Media Association, Hillary Clinton, gay news, Washington Blade

Hillary Clinton laid out her vision for a ‘hopeful, inclusive America’ in a Washington Blade interview. (Washington Blade photo by Michael Key)

In an exclusive interview with the Washington Blade, Hillary Clinton pledged to build a “hopeful, inclusive America where everyone counts” as she continues to draw a contrast between herself and Donald Trump over their views on LGBT issues.

The Democratic presidential hopeful answered 13 questions on issues important to the LGBT community in a written interview with the Blade completed Wednesday with less than one week remaining before Election Day.

“We have so much more work to do, and I want LGBT people in every corner of this country to know that as president, I will always have your back,” Clinton said.

In the interview, Clinton recommitted herself to pushing comprehensive LGBT non-discrimination legislation known as the Equality Act and to work to ensure the prohibition on gender discrimination under current law applies to LGBT people.

“As president, Iā€™ll make fighting discrimination against the LGBT community a top priority ā€“ including by working with Congress to pass the Equality Act,” Clinton said. “And we wonā€™t stop there. Weā€™ll also take on harassment, bullying, and violence ā€“ and youth homelessness, which disproportionately hurts LGBT kids.”

For the first time, Clinton explicitly vowed to veto the First Amendment Defense Act, a federal “religious freedom” bill that wouldĀ enable anti-LGBT discrimination.

In response to Trump’s criticism over the Clinton Foundation accepting millions of dollars from countries with anti-LGBT laws, Clinton laid out the charity’s work combattingĀ the global HIV/AIDS epidemic and pointed out Trump has had business dealings with these same countries “for the sole purpose of padding his own pockets.”

Clinton also identified as a personal role model Edith Windsor, the plaintiff in the lawsuit that led the U.S. Supreme Court to strike down the Defense of Marriage Act in 2013.

“Edie is a truly remarkable woman: smart, feisty, and very brave,” Clinton said. “She came of age at a time when many LGBT people felt they couldnā€™t live openly ā€“ but she had the courage to stand up for her marriage in such a bold, public way and the faith to believe that justice would ultimately prevail.”

The Washington Blade agreed to conduct the written interview with Clinton and submitted similar questions to Trump’s campaign. Although the Trump campaign said it would answer the questions, the Blade as of this posting has yet to receive responses from the Republican candidate.

Washington Blade: Where would passage of the Equality Act fit among your legislative priorities as president?

Hillary Clinton: As you know, there are still places in America where LGBT people can get married on Sunday and fired on Monday, just because of who they are or who they love. Ā Thatā€™s wrong, and it goes against everything we stand for as a country.

As President, Iā€™ll make fighting discrimination against the LGBT community a top priority ā€“ including by working with Congress to pass the Equality Act. And we wonā€™t stop there. Weā€™ll also take on harassment, bullying, and violence ā€“ and youth homelessness, which disproportionately hurts LGBT kids. Weā€™ll end the harmful practice of so-called ā€œconversionā€ therapy for minors, because LGBT kids donā€™t need to be ā€œcuredā€ of anything. And weā€™ll bring people together to reform our gun laws and keep guns from falling into the wrong hands, so that what happened at Pulse never happens again. All of these things are part of my vision for a hopeful, inclusive America where everyone counts, and everyone has a place.

Blade: If the next Congress isn’t amenable to LGBT rights, in what areas would you expand President Obama’s executive order barring anti-LGBT workplace discrimination among federal contractors?

Clinton: For starters, Iā€™m going to keep working as hard as I can between now and Election Day to elect champions of LGBT rights up and down the ballot. I want us to have plenty of people in Congress who are committed to equality and dignity for all Americans.

But this is a really important question, and a reminder that LGBT rights are absolutely on the ballot in this election. Our next president can either defend President Obamaā€™s executive actions, or repeal them. Donald Trump has promised to repeal them. If Iā€™m fortunate enough to be elected president, Iā€™ll protect them, and Iā€™ll build on them. Weā€™ll make sure weā€™re enforcing the Presidentā€™s executive actions in a real and meaningful way. And weā€™ll support the efforts that are already underway in the courts and across the federal government to clarify that protecting people from ā€œsex discriminationā€ means protecting them from discrimination on the basis of gender identity and sexual orientation, too.

Blade: The Clinton Foundation has faced criticism for accepting millions of dollars from countries with laws that punish homosexual acts with death, including between $10-$25 million from Saudi Arabia. The foundation has done much good work, but do the ends justify the means?

Clinton: I am so proud of the work the Clinton Foundation has done on behalf of vulnerable people all across the world ā€“ especially the work to combat HIV and AIDS, an epidemic that disproportionately impacts LGBT communities around the globe. Due to the work of the Clinton Foundation, 11.5 million people in the developing world have access to HIV medication at 90 percent lower cost. Thatā€™s more than half of all adults and Ā¾ of all children receiving treatment today.

Iā€™ve always believed that we shouldnā€™t shy away from confronting human rights abuses around the world ā€“ against LGBT people or anyone else. Thatā€™s why, as Secretary of State, I actively stood up to these countries and have advocated for the rights of many, including declaring that ā€œgay rights are human rights,ā€ and made advancing the rights of LGBT people around the world a cornerstone of our foreign policy, including advocating for the first ever United Nations resolution on LGBT rights. Donald Trump, on the other hand, has conducted business deals worth millions of dollars in or with some of these countries and has done it for the sole purpose of padding his own pockets.

Hereā€™s the bottom line: As your president, I will continue to fight for LGBT rights here in the United States and around the globe.

Blade: In 2013, you forcefully came out in favor of marriage equality, but others, including President Obama and Republican Sen. Rob Portman, preceded you. Why didn’t you echo President Obama and endorse marriage equality as secretary of state and do you regret not coming out for it sooner?

Clinton: Like a lot of Americans, my views on this have changed for the better. And that happened because people I cared about had the grace and patience to help me understand two key things. First, everyone in this country must have the right to marry whoever they love just like everyone else. This was about being recognized as full and equal citizens and protecting families from very real discrimination. Iā€™ve always believed marriage is a great blessing, so why deny that joy to anyone? And second, marriage equality makes us fairer, more respectful and a better country. It is the affirmation of our basic civil rights.

Blade: Based on donations to the Clinton Foundation, Donald Trump has famously said “ask the gays” who has the better record between you and him on LGBT rights. Who has the better record and what is the biggest risk to the LGBT community of a Trump presidency?

Clinton: Iā€™ll gladly put my record on LGBT rights next to Trumpā€™s for the voters to decide any day!

Letā€™s start with Donald Trump. Heā€™ll appoint Supreme Court justices who will overturn marriage equality, and said heā€™ll repeal President Obamaā€™s executive actions to protect LGBT people from discrimination. And in case thereā€™s any doubt about the kind of president he would be, look who he chose for his running mate: Governor Mike Pence, who signed a law that allowed Indiana businesses to legally discriminate against LGBT customers. We also know that Donald Trump has a long track record of bullying, harassment, and discrimination in his businesses, including reportedly against LGBT employees.

LGBT equality is an issue thatā€™s so close to my heart. As First Lady, I fought to expand funding for HIV and AIDS research ā€“ and became the first First Lady to march in a Pride parade. As Senator from New York, I championed legislation to address hate crimes, fought for federal non-discrimination legislation to protect LGBT Americans in the workplace, and pushed for an end to discriminatory and harmful laws that blocked LGBT Americans from adopting children. As Secretary of State, I led the effort to pass the first-ever U.N. Resolution on LGBT Human Rights, launched the Global Equality Fund, ended State Department regulations that denied same-sex couples and their families equal rights, helped implement LGBT-friendly workplace policies, and updated the State Departmentā€™s policy so that transgender individualsā€™ passports reflect their true gender.

We have so much more work to do, and I want LGBT people in every corner of this country to know that as president, I will always have your back.

But first, we have to win this election!

Blade: Trump has pledged to sign the First Amendment Defense Act, “religious freedom” legislation that would enable anti-LGBT discrimination, if Congress approves it. Would you veto such legislation if passed while youā€™re president and what is your plan to fight the growing movement of religious freedom bills across the U.S.?

Clinton: I would absolutely veto that legislation, which is part of a concerted effort to discriminate against LGBT people under the guise of protecting religious freedom. I firmly believe that we can promote equal rights and dignity for all Americans and protect religious liberty at the same time. Thatā€™s not what the so-called ā€œFirst Amendment Defense Actā€ does. Itā€™s insincere and insidious, and we canā€™t let it become law.

As president, I will protect religious liberty and fight to make sure all Americans can live their lives free from discrimination. We can do both. The Equality Act, for example, advances LGBT equality while maintaining the religious exemptions that have been part of our civil rights laws for decades.

Blade: You have set out a vision to achieve an “AIDS-free generation.” How will your policies help get the country to an AIDS-free generation, and one with treatment for all who have HIV?

Clinton: As Secretary of State, I said that an AIDS-free generation was within our reach, and I will keep fighting for that future as president.

Since our fight first began, infection rates have fallen in many places, more people with HIV are getting life-saving treatment, and more babies born to HIV-positive mothers are getting the treatment they need to avoid infection. But HIV and AIDS are still with us. More than 1.2 million people live with HIV in the United States, and globally, HIV afflicts a total of 37 million people. So weā€™ve made a lot of progress toward this goal ā€“ but we still have our work cut out for us.

I believe that now is the time to rededicate ourselves to achieving the AIDS-free generation that is within our grasp. Thatā€™s why as president I will convene an ā€œEnd the Epidemicā€ working group to end AIDS as an epidemic in the United States and globally. Here at home, weā€™ll expand the availability of HIV prevention medications like PrEP, take on disparities and barriers to accessing care, cap out-of-pocket drug costs, and launch a campaign to end stigma and discrimination. Around the world, weā€™ll dramatically increase the number of people on HIV treatment through programs like PEPFAR, increase our investment in HIV and AIDS research, and engage in public education campaigns in key countries where stigma and discrimination are rampant.

Blade: You have been a devout Methodist throughout your life and cited that as inspiration for seeking to help others, but the Methodist Church won’t officiate or recognize same-sex marriages. Should the church embrace same-sex marriage and do you expect that will happen?

Clinton: I’m deeply grateful for my faith, and the church that has nurtured it since I was a young girl.Ā  As I’ve said, I believe we can protect religious liberty while ensuring that all Americans are treated equally under the law.Ā  On a personal level, I am going to keep fighting for equality and encouraging others to embrace the LGBT community because I think it’s the right thing to do.

Blade: You made international LGBT rights a priority as secretary of state. How would you advocate for them as president?

Clinton: LGBT rights are human rightsā€”plain and simple. No matter what we look like, where we come from, or who we are, we are all equally entitled to our human rights and dignity. But hundreds of millions of people live in places where anti-LGBT violence is rampant and where they can be arrested, imprisoned, even executed for their sexual orientation or gender identity.

As president, Iā€™ll continue to stand up for LGBT rights around the world, as I did as Secretary of State. Weā€™ll start by stepping up our support for the Global Equality Fund with a $50 million investment over the next decade. This will expand programs that advance LGBT human rights around the world and send a strong message that the United States is an ally to LGBT people everywhere. Weā€™ll also continue to work on public health issues like HIV and AIDS, and take on discriminatory, outdated laws that stigmatize and even criminalize being LGBT. And weā€™ll partner with governments, multilateral institutions, NGOs, and activists on the ground so that the LGBT community around the world gets the resources and support they need to not just survive but thrive.

Blade: When you were Secretary of State, what are the top items you accomplished on behalf of LGBT people and do you have favorite memories of working with LGBT people in other countries?

Clinton: Iā€™m proud of what we were able to accomplish at the State Department in making the advancement of LGBT equality worldwide part of our foreign policy.

We announced for the first time ever that we would take into consideration how a country treats LGBT people when we delivered foreign aid. We instructed American diplomats to raise concerns about specific cases and laws. We worked with partners to strengthen human-rights protections. I helped lead the effort to pass the first-ever U.N. resolution on LGBT human rights. And we launched the Global Equality Fund to support the work of civil society organizations working on these issues around the world.

Some of my proudest accomplishments were actually here at home, because we know that the U.S. is strongest when we lead by example. We ended State Department policies denying same-sex couples and families equal rights, implemented LGBT-friendly workplace policies, and updated the Department’s policy for transgender persons’ passports to reflect their true gender.

Blade: The rates of violence and murder for transgender women of color remain stubbornly high. What would you do to address this problem?

Clinton: This is a serious and urgent problem. In 2015, 21 transgender people ā€” most of them women of color ā€” were murdered. And that doesnā€™t even begin to account for the violence that goes unreported or ignored.

We need to stand up for the lives and safety of transgender people, and take on bigotry and discrimination wherever they occur.

That means fighting for strong anti-discrimination laws. It means doing a better job of collecting data on gender identity and sexual orientation, because we canā€™t solve the problem of discrimination until we understand its full scope. It also means investing in law enforcement training to ensure fair and impartial policing in interactions with the LGBT community.

America saw the effects of hate in Orlando, with the attack on the Pulse nightclub ā€” the deadliest mass shooting by a single person in our history. So we also need to finally pass common-sense reforms to address the gun violence epidemic.

Most of all, itā€™s far past time we say with one voice that transgender people are valued, they are loved, they are us, and they deserve to be treated that way.

Blade: You hired a gay man, Robby Mook, to run your campaign. How did you meet him and why did you choose him for the job?

Clinton: Easy: He was the best person for the job, hands down. Robby is brilliant, heā€™s one of the most incredible organizers Iā€™ve ever met, and he creates a real culture of hard work and inclusion. Thatā€™s why just about everybody who works for him winds up working for him again (sometimes again and again and again!).

Blade: In separate interviews with the Washington Blade in 2008, Barack Obama cited as a gay role model his college professor Lawrence Goldyn and John McCain cited 9/11 hero Mark Bingham. Whom would you identify as an LGBT role model?

Clinton: Iā€™m inspired by Edie Windsor, the lead plaintiff in the Supreme Court case that paved the way for marriage equality. When Edieā€™s wife, Thea Spyer, passed away, Edie realized she owed hundreds of thousands of dollars in federal estate taxes she wouldnā€™t have had to pay if she had been married to a man. She had to choose whether to live with this injustice, or fight back. She chose to fight back ā€“ and as a result, the Court ruled that all legally married LGBT couples must be treated equally under federal law. Edieā€™s case opened the door for the Supreme Court ruling one year later, which held that marriage equality was the law of the land in all 50 states.

Edie is a truly remarkable woman: smart, feisty, and very brave. She came of age at a time when many LGBT people felt they couldnā€™t live openly ā€“ but she had the courage to stand up for her marriage in such a bold, public way and the faith to believe that justice would ultimately prevail. And even though her own case has been fought and won, sheā€™s still fighting just as fiercely for the rights of all LGBT Americans.

Windy City Times executive editor/publisher Tracy Baim contributed to this report.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Business owner seeks to decline services for same-sex weddings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Progressive activist a veteran of Planned Parenthood Action Fund

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Kelley Robinson (Screen capture via HRC YouTube)

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

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

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

Kelley Robinson IS NAMED as The next human rights Campaign president

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

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

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

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