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Newsham on banning cops from Pride, trans relations

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Peter Newsham, gay news, Washington Blade

D.C. Police Chief Peter Newsham said calls to ban cops from Pride were ‘disheartening.’ (Washington Blade photo by Michael Key)

D.C. Police Chief Peter Newsham described as “a little disheartening” calls by a local group for banning police participation in next month’s Capital Pride parade and festival.

In an interview with the Washington Blade last week, Newsham said he was pleased that Capital Pride’s board of directors decided to retain police presence in Capital Pride’s events, turning down a request by the group No Justice No Pride that police be excluded.

“That to me is a good sign I think for the Metropolitan Police Department if the majority is inclined to have us be involved and participate,” he said. “I think that says a lot and speaks volumes about the relationship that we’ve been able to develop.”

Newsham, 54, who was confirmed by the D.C. Council on May 2 as the city’s 30th police chief, said he was aware of disagreements by some in the LGBT community over the way Capital Pride has carried out its events, including some who expressed opposition to corporate sponsors and calls for ending police participation.

“Personally it’s always a little disheartening when any group kind of shuts out the police from an event because we do kind of our damndest here in Washington, D.C. to develop relationships with our entire community,” Newsham said.

“So if a particular community feels as though the MPD in particular is not deserving of attending one of their events it’s hurtful,” he said. “But we would obviously honor that request. We wouldn’t be involved in something if they didn’t want us to be there.”

Members of No Justice No Pride have said one reason they were opposed to police presence at Capital Pride events is some members of the LGBT community, especially transgender women of color, are uncomfortable in the presence of uniformed police officers.

A fear of the police by some trans women stems from police tactics of enforcing so-called prostitution-free zones in the city by harassing and sometimes arresting transgender women for merely walking on the street, members of No Justice No Pride have said.

The Blade asked Newsham, who has been a member of the MPD since 1989, if those allegations were true and whether police have a policy or criteria for making prostitution arrests involving trans women.

“The first part of the question as to the relationship between the police department and our transgender community, I think if you look at the history of policing across the country police have not been particularly great actors in developing that relationship,” Newsham said. “There were a lot of I think historically bad actions by the police in that regard,” he said.

“And I think one of the things we have tried is to regain the trust in the transgender community in particular to show them that here in the MPD we are different,” Newsham continued. “We are not like that to the extent that there was that type of behavior in the past. We’re not going to be involved in that type of thing.”

He added, “If we do have individuals in the police department who are involved in treating anybody in our entire community in an inappropriate or disrespectful way, the managers at the Metropolitan Police Department will take that very seriously and it will be addressed.”

“With regards to prostitution, you know that is the law here in the District of Columbia that it is illegal,” Newsham said. “And the only time that we should be taking any action with regard to prostitution is if there is probable cause that it’s taking place.”

He said anyone who feels they have been treated improperly by police related to enforcement of anti-prostitution laws, especially members of the trans community, they should file a complaint at the police district station nearest to where the incident happened.

He noted that if someone is uncomfortable filing a complaint directly with the police they have the option of filing such a complaint with the city’s Office of Police Complaints, which is an independent city agency not connected to the police department that investigates complaints against police.

“The last thing we want to do is harass or intimidate anybody in our community,” Newsham said.

D.C. Mayor Muriel Bowser named Newsham as interim police chief last September shortly after then Chief Cathy Lanier announced she was retiring from the force to become head of security operations for the National Football League.

One of Newsham’s first actions as interim chief was to transfer the department’s community liaison units, including the LGBT Liaison Unit, into the Office of the Chief of Police. He also promoted gay longtime Sgt. Brett Parson to the position of acting lieutenant and returned Parson to his former role as head of the liaison units.

Newsham said he believes elevating the liaison units to the status of an arm of the Office of the Chief was necessary, among other things, to send a signal to the community that these units representing the LGBT, Latino, Asian-Pacific Islander, and Deaf and Hard of Hearing communities is a top priority for the department.

But he said the timing of his action was also a response to the outcome of last year’s presidential election.

“After the election I think a lot of people in this area, Washington, D.C. and the region, felt a little bit uncomfortable, feeling like the police department was going to change because the federal administration had changed,” Newsham said. “I thought that was a good time for us to kind of signal that we have not changed,” he said.

“We’re going to remain the same agency we have always been – committed to D.C. values. And that was kind of why I did that and brought Brett back,” he said.

Following is the text of Chief Peter Newsham’s interview with the Washington Blade on May 11:

Washington Blade: Can you tell a little about the changes you have made with the Metropolitan Police Department’s LGBT Liaison Unit since you became chief of police?

Peter Newsham: I think you’re aware that I moved all the special liaison units under the Office of the Chief of Police under one of my directors, director Kelly O’Mara. I also made Brett Parson an acting lieutenant to oversee our LGBT Liaison Unit. I have always felt maybe having them report to the chief’s office was a good idea.

But after the election I think a lot of people in this area, Washington, D.C. and the region, felt a little bit uncomfortable, feeling like the police department was going to change because the federal administration had changed. I thought that was a good time for us to kind of signal that we have not changed. We’re going to remain the same agency we have always been — committed to D.C. values. And that was kind of why I did that and brought Brett back.

I never really from where I sat understood why Brett left. And when I approached him and asked him to come back he seemed like he was very happy to do it. And I actually believe that he has become more energized being back in that role. I think that was a win-win for everyone.

Blade: Is he heading all of the liaison units?

Newsham: He is.

Blade: One of the things some in the community expressed concern about prior to your becoming chief was that the liaison units, particularly the LGBT Liaison Unit, appeared to be shrinking in size due to attrition and members who left were not being replaced. Do you know what the size of the LGBT Liaison Unit is now and is there a policy for retaining its size when members leave?

Newsham: Well you can never really set a firm policy on a staffing number because the size of the department right now fluctuates. You have to staff units proportionately for what you have available for the entire city. But right now we have one sergeant, Jessica Hawkins, three officers and two senior police officers who I think folks are very familiar with. And then every month we have two affiliates.

And I think you’re familiar with our affiliate program where we bring folks in who are interested and they work with the unit and they learn some of the skills that the unit has and then they actually go back to their district. We have an LGBT community throughout the entire city. And the idea behind having the affiliates is it’s a kind of training.

First of all they become familiar with some of the leaders in the community. And they also learn from some of the experts who have been in the liaison unit for a period of time. And then they can take those skills back to their district. I think that part of the program is a very good part of it.

So to answer your question, I have no intention right now to increase or reduce the size of it. I have not heard any concerns from the community that they felt like the unit was not sufficient. As a matter of fact, the feedback I’m getting now is the people are very pleased to see Brett back in the unit.

Blade: Another concern that had been expressed prior to you becoming chief was that the permanent members of the liaison units were required to spend a certain period each month on another assignment unrelated to the liaison unit. In some cases we were told they were being assigned to unrelated duties each day during their shift possible due to a shortage of patrol officers throughout the department. Is that still going on and can that be addressed in a way that would enable the liaison officers to spend all of their time in those units?

Newsham: Well I don’t think it is going on. My understanding is that the folks that are assigned to the unit are working in the unit. I don’t know of any shortages right now where we would need to pull them for other assignments. Whenever we mobilize the police department all of our police officers need to be involved. But that’s pretty infrequent. And the other piece to this is we expect all of our police officers, if something were to happen in an emergency type situation that they would take police action. So that would take them outside of their normal role. But other than those few instances they’re going to be committed to the unit.

Blade: Is there still some type of LGBT related training that takes place at the police academy or that might apply to officers already on the force?

Newsham: Yes they do have that training. All of our recruit officers are trained. And then all of our officers per year get four hours in class and four hours online with an emphasis on transgender bias related crimes and intimate partner violence in the LGBT community. So that’s something I think we’re going to be doing ongoing for the next several years.

Blade: Is that for the academy and for officer that are already on the force?

Newsham: Exactly. So the recruits get it but also all of our officers in our professional development training get it.

Blade: In the last week or two there have been some issues going on related to the annual LGBT Pride events. A dissident group has surfaced that wants to change the Pride events in various ways including banning the police from marching in the parade and being present at the Pride festival the day after the parade. Have you heard about that? Do you have any thoughts about that?

Newsham: I have. I have been following that. There seems to be a group that is opposed to some of the things that the folks that are organizing the Pride event are doing. And a couple of the things I have seen is there is some opposition to some of the sponsors. And like you said, there’s some opposition to police involvement. Whenever we have an event here in the city of large groups we do whatever we can to facilitate that.

And groups are entitled to express their discontent for whatever their particular issue is. And we’re going to facilitate that. That’s what we do here in Washington, D.C. To the extent that a particular group doesn’t want the police to be involved in their event we will obviously honor that in every way other than we will still have a responsibility, for example, if streets are needed to be closed or if there is a public health issue that occurs as a result of a large gathering — whether it be heat or cold or if someone is injured in some way we’ll have that responsibility to respond to make sure people are safe.

Personally it’s always a little disheartening when any group kind of shuts out the police from an event because we do kind of our damndest here in Washington, D.C. to develop relationships with our entire community. So if a particular community feels as though the Metropolitan Police Department in particular is not deserving of attending one of their events – it’s hurtful. But we would obviously honor that request. We wouldn’t be involved in something if they didn’t want us to be there.

Blade: The organization putting on these events, Capital Pride, turned down the request by this group to ban the police. The Capital Pride leaders said they believe the majority of the LGBT community welcomes the police.

Newsham: That to me is a good sign I think for the MPD if the majority is inclined to have us be involved and participate. I think that says a lot and speaks volumes about the relationship that we’ve been able to develop.

Blade: Members of this group said the reason they didn’t want the police involved is that some members of the LGBT community, especially transgender women of color, would be uncomfortable with a police presence. They said that when police enforce so-called prostitution free zones D.C. police have been harassing transgender women just for walking on the street. Could that have happened and is there a criteria that the police use to enforce the prostitution laws in situations like this?

Newsham: That’s kind of a very detailed question. The first part of the question as to the relationship between the police department and our transgender community, I think if you look at the history of policing across the country police have not been particularly great actors in developing that relationship. There was a lot of I think historically bad actions by the police in that regard. And I think one of the things we have tried is to regain the trust in the transgender community in particular to show them that here in the MPD we are different. We are not like that to the extent that there was that type of behavior in the past. We’re not going to be involved in that kind of thing.

If we do have individuals in the police department who are involved in treating anybody in our entire community in an inappropriate or disrespectful way the managers at the Metropolitan Police Department will take that very seriously and it will be addressed.

With regards to prostitution, you know that is the law here in the District of Columbia that it is illegal. And the only time that we should be taking any action with regard to prostitution is if there is probable cause established that it’s taking place. So any type of harassment – and this is a hard thing too for transgender folks in particular is that they don’t necessarily trust the system. But what I urge them to do if they feel they are being treated inappropriately or that they are being harassed, please let us know. There is also an Office of Police Complaints that they can go to if they don’t trust the police. So we can address those issues to make sure that doesn’t happen.

The last thing we want to do is harass or intimidate anybody in our community.

Blade: You may have heard that some prominent national organizations like Amnesty International and locally the Gay and Lesbian Activists Alliance have called for decriminalization of prostitution in cases where consenting adults are involved. They have pointed out that some are engaging in prostitution as a means of economic survival and arresting and prosecuting them only makes matters worse for them. It is unlikely that the D.C. City Council will do this. But do the police have the discretion or option of setting priorities on which types of areas you devote your resources to?

Newsham: I would say the way we allocate resources for all of our crimes – of course violent crime is our number one priority here in the city. We’re trying to reduce that down to zero. And we’ve had pretty good success in recent years in driving that down. And then with any other crime that’s not a violent crime if it happens in the police presence or if there is information that we can get to and we can close the case we have a team of people who do that on a regular basis. And for something like prostitution what we do with regards to allocating resources – generally it is based on complaints.

So if we have a complaint about it in a particular area – if there are people who are concerned about it happening in a particular area, it’s disrupting their neighborhood in some way then if they ask us to do that we will generally react to that. And it is against the law right now regardless of whether or not it should be decriminalized. That’s not a decision for the police. That’s a decision for the Council. So for the folks who are advocating this they have some very good points. I think there may be some points on the other side. And that’s what the legislature is for – to consider all that information and make a decision based on their constituencies in what the city wants with regard to the statutes.

Blade: What is the police policy for disclosing or not disclosing whether a crime victim is gay, lesbian or transgender if it’s not a hate crime but an LGBT person may be targeted?

Newsham: I don’t think we have a specific policy on that disclosure. I’m not sure what you’re asking.

Blade: Your predecessor, Chief Lanier, told the Blade some years ago that for privacy reasons she did not think it was appropriate to disclose whether a crime victim was gay, lesbian or transgender unless it was specifically related to their sexual orientation or gender identity in some way. I’m asking that because in past years we learned of many more so-called pick-up crimes in which mostly gay men would meet someone in a bar or other meeting place and a suspect would pose as a willing partner to get invited to the victim’s home and they assault and rob them and sometimes murder them. Police said then that these weren’t hate crimes because robbery was the motive. But the perpetrators were certainly targeting gay people for these crimes. We don’t hear very much of that anymore. Could it be far fewer incidents like this are happening or could it be we aren’t hearing about it because the police aren’t reporting it?

Newsham: I would say that’s really one of the reasons that we have our special liaison unit. If we do have a crime and we believe it’s going to impact a particular community, that’s a vehicle for getting that information to that community. I’m not aware of any of those types of cases going on in a patterned way in the District of Columbia right now. If there were and a particular group was being targeted I would feel that it would be my responsibility to let the affected communities know that they could potentially be in jeopardy. I think that’s a safety issue. There are privacy rules. There are wishes of the victim that have to be considered. We have to weigh that in every particular case. And then you weigh that against the public safety interest.

And so if you think there’s a particular – like I say, any group within our community that’s being targeted for any reason I think we have a responsibility to let that community know. But like I said, right now there’s none that I’m aware of where there’s a pattern going on. And I would be aware if something like that were going on.

Blade: There’s been a flurry of MPD announcements and press releases in recent months of missing person cases, which call on the public to help find the person. Do you know whether any LGBT people have been reported missing as part of this flurry of announcements?

Newsham: Do I know if any have? I would say in all likelihood they have. Do we note that designation when they go missing? We do not. The missing person issue that has been widely reported is that it began in December when we brought in a new commander in the Family Services Division. She began using social media to put our missing person images out to the public and we started to get those cases publicized a lot more than they used to be publicized. The result is there were a lot of concerns that we had more missing persons and there was an uptick in missing persons, which wasn’t the case.

There were some who suggested that maybe we should stop doing that. We didn’t feel comfortable about that [suggestion] because there were two things we were able to achieve by putting those images out the way we did. The first is we were able to find people quicker than we did in the past. And the second thing – I think it drew some awareness to how many young people in particular that go missing in the District on a regular basis.

Blade: Can you say how many of them are eventually found?

Newsham: Oh yeah, the large majority of them are found, like in the 99 percentile. So whenever you look at the number of kids that are currently out missing or any number of people that are out missing – that number changes every day because we find them. And we’re doing a pretty good job now of notifying the public when we do find them. And then some more will be reported missing. So it’s almost like the glass is filling up and emptying every single day.

Blade: There is a pending lawsuit filed by a gay former cop who is suing the MPD and the city for allegedly being severely harassed because of his sexual orientation in the Fourth District, where he was stationed back in 2012. Do you think that kind of harassment is prevalent or a rarity within the MPD at this time and is there an internal procedure for the police to address something like that if your own officers are being harassed?

 Newsham: You don’t want to see that in any workplace. To the extent that we’re able to identify that type of behavior here at MPD it won’t be tolerated. We don’t want our employees to feel uncomfortable being at or coming to work just because of who they are. That’s something that we don’t tolerate. We’re against hate in our community but we’re just as vigilant against hate within the police department. And yeah, if somebody feels like they’re being treated unfairly because of who they are they need to let us know and hopefully they’ll feel comfortable that it’s going to be addressed and we’ll put a stop to it.

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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

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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 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

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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 — 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

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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.

“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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