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Supreme Court to begin ‘potentially momentous’ term for LGBT rights

New term includes Masterpiece Cakeshop, other milestone cases

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The U.S. Supreme Court is set to have a “potentially momentous” term upon the start of its new term. (Washington Blade file photo by Michael Key)

A plethora of cases related to LGBT rights are awaiting the Supreme Court after its summer recess at the end of this month, which could lead to the most monumental term for justices since the landmark 2015 ruling in favor of marriage equality nationwide.

The Supreme Court has already agreed to hear and accepted briefs in the Masterpiece Bakeshop case, which was filed by a Colorado baker asserting a First Amendment right to refuse to make wedding cakes for same-sex couples despite a state law prohibiting anti-LGBT discrimination. But justices could also take up cases determining whether current federal civil rights law affords lesbian, gay and bisexual people workplace non-discrimination protections and transgender kids access to school restrooms consistent with their gender identity.

James Esseks, director of the American Civil Liberties Union LGBT and HIV project, said the upcoming term for the Supreme Court is “potentially momentous” for LGBT rights — and civil rights in general — based on the Masterpiece Cakeshop case for which his organization is defending Colorado’s non-discrimination law.

“You’ve got the Masterpiece Cakeshop case, which is about whether the court’s going to recognize a constitutional right to discriminate based on people’s religion or people’s political beliefs, and if they do, that overrides civil rights law, and not just for LGBT people, but for everybody,” Esseks said. “And that’s something I think every single person in the country should be concerned about because everybody’s rights are at risk here.”

If the court takes up other LGBT cases in addition to the Masterpiece Cakeshop case, Esseks said the upcoming term “will be a defining moment for LGBT rights whether our side wins the cases or loses them.”

Front-and-center among the LGBT cases, simply by virtue of the Supreme Court already agreeing to review the lawsuit, is the Masterpiece Cakeshop case. It could also have significant impact if justices deliver a ruling mandating exemption for state and local non-discrimination laws, more so if that decision isn’t contained to the baking of wedding cakes.

Supporters of Jack Phillips, who refused to bake a wedding cake for a same-sex couple, already filed briefs in the case earlier this month. Representing Charlie Craig and David Mullins, the same-sex couple that sought the wedding cake, and Colorado — and that  successfully sued in Colorado state courts after Phillips denied them service — is the ACLU.

Esseks said the issue presented to justices “isn’t about a cake” or business artistry but whether the court will find the baker has a constitutional right to discriminate under the First Amendment.

“It’ll sell the cake to lots of other people, but it won’t sell it to a same-sex couple, and that’s the paradigm of discrimination: No cakes for gays,” Esseks said. “What the store wants to be able to do is put up a sign over the display case for wedding cakes that says, ‘Wedding cakes for heterosexuals only.’ And just think about what the world looks like if a business can put up that sign. It can put up a lot of other signs. They can say no clothing for Muslims, they can say no haircuts for Latinos, you can go down the list.”

The Supreme Court already ruled in the 1990 decision of Employment Division v. Smith that neutral laws of general applicability, including anti-discrimination laws, are subject to rational basis review even when they incidentally burden religious beliefs. That precedent will likely hamper Masterpiece Cakeshop’s claims of being able to deny wedding cakes to same-sex couples under freedom of religion.

But supporters of Masterpiece Cakeshop are also framing the lawsuit as an attempt to protect freedom of expression on the basis that the preparation of a wedding cake is an inherently expressive act, unlike the provision of other goods, and protected under the First Amendment.

Katie Eyer, an anti-discrimination law scholar at Rutgers Law School, said the outcome of the case is hard to predict largely based on the freedom of speech claims made by Masterpiece Cakeshop.

“The speech side of the case is honestly more complicated,” Eyer said. “If this were 20, 30 years ago, certainly 30 years ago, I would tell you the Supreme Court does not treat discrimination as constitutionally protected expression. That has been eroded over the years as the court has moved away from the race cases, when this issue was originally raised. It has shown more and more willingness to entertain those types of defenses to anti-discrimination law claims.”

Eyer pointed out the Colorado Court of Appeals, which ruled against Masterpiece Cakeshop, determined the outcome could have been different if the baker was required to write a certain message on the wedding cake — something the U.S. Supreme Court may consider in evaluating the baker’s First Amendment claims.

Although oral arguments in the case aren’t yet scheduled, Esseks said the court has said they’re likely to take place within two weeks after Thanksgiving. The consensus among legal experts is the court will hand down a decision at the end of June 2018, when the term ends and the court tends to issue rulings in its high-profile cases.

In addition to the Masterpiece Cakeshop case, numerous petitions are before the court that would enable justices to issue rulings either dramatically expanding or restricting LGBT rights. It takes a vote of at least four justices to grant a writ of certiorari, or agree to hear a case.

Among them is the petition filed by Barronelle Stutzman of Arlene’s Flowers in Washington State, who like Masterpiece Cakeshop is seeking a First Amendment right to refuse services for same-sex weddings, but in her case floral arrangements. The Washington Supreme Court upheld the state’s non-discrimination law against her claims, but she filed a petition with the U.S. Supreme Court seeking review.

Eyer, however, said the likely outcome of that petition is the Supreme Court will place it on hold until it finishes consideration of the Masterpiece Cakeshop case, then take action.

“Often what the court will do in that type of circumstance is not grant and consolidate, but hold it until the initial case having implications is decided, and if it does indeed have implications, grant and remand and further consideration,” Eyer said. “I expect they probably won’t rule on the petition until the Cakeshop case is decided, and then whether or not they’ll send it back will depend on whether or not the Cakeshop case has new relevant doctrine, which it’s very likely to given the controversy and the circumstances.”

Another LGBT-related petition before the Supreme Court was filed by Kenosha School District in Wisconsin, which is seeking a nationwide ruling on whether Title IX of the Education Amendment of 1972 requires schools to allow transgender students to use the restroom consistent with their gender identity. The school district sought to bar high school student Ash Whitaker from the boy’s room, but the U.S. Seventh Circuit Court of Appeals ruled Title IX requires the school to change its policy.

Last year, the Supreme Court agreed to hear a similar case in which Gloucester County Schools refused to allow transgender high school student Gavin Grimm to use the school restroom consistent with his gender identity. But the Supreme Court changed course and nixed consideration of the case after the Trump administration rescinded guidance to schools assuring transgender kids access to the restroom of their choice. The remanded case is once again before trial court, which is determining the issue is moot now that Grimm has graduated.

Additionally, the LGBT group Lambda Legal has filed a petition before the Supreme Court seeking a determination that sexual-orientation discrimination amounts to sex discrimination, and therefore is unlawful in the workplace under Title VII of the Civil Rights Act of 1964. The plaintiff in the case is Jameka Evans, a security guard who claims she was targeted for harassment and effectively terminated from her job at Georgia Regional Hospital for being a lesbian.

The issue may be ripe for review because of a split among federal appeals courts. The U.S. Eleventh Circuit Court of Appeals ruled against finding employment protections for Evans under Title VII in contrast to a ruling earlier this year from the U.S. Seventh Circuit Court of Appeals determining anti-gay discrimination is a form of sex discrimination.

Jocelyn Samuels, executive director of the Williams Institute at the University of California, Los Angeles, said the circuit split makes the Supreme Court more likely to hear the gay employment case, but that won’t necessarily be the outcome.

“The Second Circuit is also hearing the case en banc on the very same question, so there is a lot of development in the lower courts on addressing this issue,” Samuels said. “I think it’s uncertain whether the Supreme Court would weigh in now or would opt to see how more cases at the district and circuit level come out.”

As with the marriage cases and so many other cases before the Supreme Court, the outcome of the LGBT-related lawsuits will likely come down to U.S. Associate Justice Anthony Kennedy, who’s considered the swing vote on the bench and has a reputation for coming down in favor of gay rights.

With respect to the Masterpiece Cakeshop case, Eyer said predicting the way Kennedy — who in addition to favoring LGBT rights, also has a reputation for giving deference to free speech — will come down is difficult.

“Part of what makes this a real wild card is Justice Kennedy, no doubt the justice in the middle of this case, has been steadfastly a defender of LGBT rights in the equal protection context, but also signed on to prior decisions granting exemptions to organizations under the First Amendment from gay-protective state anti-discrimination laws,” Eyer said.

Eyer afforded the same amount of deference to Kennedy in assessing the outcome of the gay employment and transgender bathroom cases should the Supreme Court decide to accept those petitions.

“The constitutional law context may differ from the statutory context in certain respects,” Eyer said. “He did vote to grant a cert of the stay in the G.G. case last year, which is certainly not dispositive, but it’s not helpful from the perspective of the plaintiff. There are lots of good reasons to think it would came in favor of plaintiffs in those cases, but we have a wild card of just not knowing specifically where Justice Kennedy is likely to go in these statutory cases.”

The Trump administration under U.S. Attorney General Jeff Sessions has already weighed in on the Masterpiece Cakeshop case before the Supreme Court, siding with the Colorado baker in a friend-of-the-court brief. The Justice Department has also filed a brief in the Second Circuit against lesbian, gay and bisexual protections under Title VII, which likely means the administration will intervene if the Supreme Court takes up the Evans case.

Samuels said the influence the Trump administration will have is “hard to know,” but the U.S. solicitor general, who’s charged with representing the U.S. government before the Supreme Court, will be presenting an untenable position.

“I would say, in my own personal judgment, the fact that this Justice Department is moving away from positions supported by the prior administration and, in particular, that the fact in the Second Circuit, the position taken by the Justice Department is in direct conflict with the position already taken by the EEOC, I think, limits the persuasiveness of the Justice Department’s filing, certainly in the Second Circuit, and I think also in the Masterpiece Cakeshop case,” Samuels said.

Percolating through the lower courts as the Supreme Court weighs these cases is litigation challenging President Trump’s ban on transgender people in the U.S. armed forces. The consensus among legal experts is these high-profile cases are unlikely to reach the Supreme Court by the end of its term, unless justices agree to accept an interlocutory appeal if lower courts issue — or deny — a preliminary injunction against the ban.

The LGBT legal groups representing transgender plaintiffs have already made these requests and the Justice Department has a deadline of Friday to respond to at least one of them before a trial court in D.C.

Eyer said the Supreme Court hearing these cases this term is “reasonably unlikely, but not impossible,” although if justices were to accept the litigation, the outcome would be unclear because of limited doctrine on transgender rights compared to sexual-orientation cases.

“I would say one thing we saw most often on challenges to ‘Don’t Ask, Don’t Tell’ and prior bans on gays and lesbians in the military was courts’ desire to defer to the military,” Eyer said. “I think that that factor’s really weakened here based on the fact that this doesn’t seem have been driven by the military, and indeed, the military seems to have reached the opposite conclusion, but how exactly it will play into litigation remains to be seen.”

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59 Comments

59 Comments

  1. lnm3921

    September 20, 2017 at 7:04 pm

    The Trump administration has already filed briefs favoring the Baker in denying gay couples a wedding cake and against Title VII protections including GLBT so what part of the Fake POTUS being an enemy of GLBT community don’t you understand? Can you see the endless pattern of Trump and his administration failing the GLBT community despite lies during his campaign that he would protect it? He has no credibility and cannot be trusted!!

    This is hardly hysteria like some idiot replied to me on another post, it’s reality and fact! Just because you live in denial doesn’t make it otherwise!

  2. SammySeattle

    September 26, 2017 at 2:03 pm

    You do not have an inalienable right to discriminate against your fellow citizens. Christianity no longer has a stranglehold on the US and for good reason. It’s nuts like you that believe that their religion and only their should dictate our rights and freedoms that are causing religion to fail. Thankfully the First Amendment protects us from the insanity of dominionism.

    • believer

      September 26, 2017 at 3:31 pm

      No one is discriminating against you, it’s homosexuals who targeted and discriminated against the baker and tried to force him to service an event that they know violates his faith.

      • SammySeattle

        September 26, 2017 at 4:27 pm

        That’s B.S. Nobody forced this person to obtain a business license, open his shop and advertise his goods and services to the public. If you’re open to the public, you are open to all.

        • believer

          September 26, 2017 at 5:17 pm

          The baker was in the marriage business long before the SCOTUS interfered in religious law. Marriage is in the Bible, not the Constitution. Genesis 2:24. The baker is in the business of creating wedding cakes as a matter of faith in service to love and honor God. The baker has every right to live his life according to the tenets of his faith in pursuit of happiness, without fear of government interference.

          • SammySeattle

            September 26, 2017 at 8:21 pm

            Here, in the United States of America, our laws are based upon the Constitution. There are myriad religions, yours doesn’t supersede any other in matters of law. The baker is in business of selling baked goods. He can attach any personal meaning to that endeavor, but it does not abrogate his duty to run his business within the constraints of anti-discrimination laws. Your personal beliefs do not excuse discrimination against your fellow citizens. Once you step into the arena of public accommodation you must respect the rights of the public you’ve agreed to serve. it is that simple.

          • believer

            September 27, 2017 at 11:15 pm

            You really need to think about someone other than yourself and look at the facts. The baker is not discriminating. He offered to sell the men anything in his shop. What he can’t do is design a cake for a homosexual wedding. This violates his faith and causes him to sin. Why? Because marriage is religious. It is the union between a man and a woman in a creative capacity, IN THE IMAGE OF GOD, it’s in the Bible and NOT IN THE CONSTITUTION. We are a nation of laws, and everyone has to follow them including the SCOTUS. But they broke the law and interfered in religious law. Finally the baker has a right to live his life according to the tenets of his faith without fear of government interference, per article 1 of the Constitution.

          • SammySeattle

            September 28, 2017 at 12:53 am

            I am thinking of All citizens of the United States of America. The baker discriminated against two of those citizens. We are a nation of laws, and your chosen belief in a diety and your chosen belief of what that deity demands of you is no excuse for discriminating against others. Each citizens has a right to thief own belief, but when you step into the arena of public accommodation you need to respect the beliefs and rights of those that you’ve offered to serve, i.e. : the public, your fellow citizens.

          • believer

            September 28, 2017 at 9:59 am

            You forgot about the baker and his rights. The baker is a Christian and loves God with everything that he is. Do you believe that he should not be allowed to love the Lord our God, whom he honors?

          • SammySeattle

            September 28, 2017 at 4:03 pm

            He is free to believe what he wants, but once he steps foot into the arena of public accommodation he must recognize that all citizens have rights

          • believer

            September 28, 2017 at 9:53 pm

            That is not the law. The baker has Constitutional protection and this is not even debatable. You cannot ask the baker to perform a service that violates his faith.

          • SammySeattle

            September 29, 2017 at 4:36 pm

            The customer enjoys the same Constitutional protection, and when the baker entered into the arena of public accommodation he should have realized that his rights do not supersede those of the public whom he has invited into his place of business.

          • believer

            September 30, 2017 at 11:08 am

            Religious Liberty IS in the Constitution, but Marriage is not in the Constitution; it’s in the Bible. So either way you look at this the baker enters the ring already injured by the SCOTUS homosexual wedding decision which interfered in religious law causing an undue burden of conscience for the baker, and the fact that the baker was targeted and discriminated against by homosexuals who wanted to force him to violate his faith. The baker should win this case if the court rules in favor of justice.

          • SammySeattle

            September 30, 2017 at 1:12 pm

            That is ridiculous. The baker has suffered no injury at all. This is all about the baker suggesting that he has a special right to discriminate against some of the public whom he had invited to partake of his goods and services. SCOTUS has no choice but to rule against the baker. Ruling in his favor would cause the undoing of all non-discrimination statutes. They won’t go there.

          • believer

            September 30, 2017 at 2:11 pm

            You have to look also at the baker’s side of the case. If the baker did not have constitutionally valid points, his case would not be before the court. In detail this is what this case is about.

            Masterpiece Cake Shop vs. the State of Colorado will be the earthly deciding case as to whether there really are competing rights at all and if so whether the inalienable religious freedom will win over the “non-discrimination civil right.” It’s not even debatable that blacks are born black — gays are not born gay and if they put forth this ridiculous argument, it is debatable.

            Backs are black regardless of emotion whereas gay is solely dependent on sexually behavioral choices or some action or feeling. Blacks have grown increasingly upset over this false equivalency because it is ridiculous, offensive, and insulting, not only to Blacks, but the entire heritage. It’s like saying being gay is the same as being Chinese or White. The SCOTUS should not allow such ridiculous false assumptions to even enter their courtroom because gays are USING the terrible history of blacks to piggyback their radical homosexual agenda, and this is all the way wrong!

            This issue is so important for the baker because it also has eternal consequences. Spiritually speaking, what will be the deciding factor of eternal life will be the truth vs. the lie with regard to God, marriage and family.

            Marriage is religious (Genesis 1:26; 2:24, Matthew 19:4), designed in a creative capacity, IN THE IMAGE OF GOD. It’s in the Bible, not the Constitution. This is scripture and the baker cannot look at it any other way. God formed the first man and woman and gave them creative power to also create and perpetuate society. Except Jesus, everyone else exists from the male and female union.

            For the Christian, a marriage law that contradicts the biblical law is a counterfeit because no other union can produce — only a man and a woman. THIS IS THE BURDEN OF CONSCIENCE PLACED ON THE BAKER BY SCOTUS’ NEW HOMOSEXUAL MARRIAGE LAW. And if that isn’t enough, the SCOTUS does not have authority to make new law — that is the responsibility of Congress.

            If someone wanted to marry their computer and asked the baker to bake the cake for their wedding ceremony, the baker would decline because it would counterfeit the Image of God in marriage.

            I believe Sister Lucia of Fatima was correct when she revealed a secret of Mary that the final battle between God and Satan will be about family.

          • SammySeattle

            September 30, 2017 at 2:54 pm

            That’s a whole lot of gibberish unsupported by facts. Of course that is the tack taken by those who think that religious liberty only applies to their chosen religion. And, btw, I’m gay no matter what I’m doing. It is just a much a part of me as my race. It is insulting to hear from bigots like you that we should not enjoy the same protections that you take for granted. What new marriage law? Cite the statute created by SCOTUS. You’re really hitting all of the bigot memes. Congratulations.

          • believer

            October 1, 2017 at 2:12 pm

            So you say. And make no mistake, the homosexual marriage law is a new law with no precedence. But let me ask you a question. Why Do Homosexuals Fear and Distrust the Very Idea of Religious Freedom?

          • SammySeattle

            October 1, 2017 at 3:26 pm

            There is now new law. If there was you could cite the statute. SCOTUS ruled that existing law applied to all and that law excluding gays from marriage were invalid. Gay people support religious freedom. What they don’t support is bigotry and discrimination.

          • believer

            October 1, 2017 at 6:06 pm

            What is it about religious freedom that makes it discriminatory?

          • SammySeattle

            October 1, 2017 at 7:30 pm

            Using religion as an excuse for discrimination and bigotry is unAmerican.

          • believer

            October 1, 2017 at 10:28 pm

            Why do you think the baker is “using his religion to discriminate?” Do you think that he does not have a right to live by his faith in public while doing business?

          • SammySeattle

            October 2, 2017 at 12:44 am

            I couldn’t tell you why the baker decided to use his religion to discriminate. That would be a question for him. Sure, he has a right to live his faith, that does not extend to infringing on the rights of the citizenry to whom he has offered his goods and services. I’ve not made an offer to the baker or any other member of the public, so no, I’m not being discriminatory or intolerant. You don’t seem to have any understanding of what “public accommodation” or “discrimination” actually entail.

          • believer

            October 2, 2017 at 9:55 am

            To say the baker “used his religion to discriminate” sounds very much like a false accusation. It is more that the baker is following the tenets of his faith and it has nothing to do with homosexuality, although that is a biblical abomination.

            For the baker, marriage is religious. It is the first divine law of Christianity and it is in the Bible not the Constitution. As I said before marriage was designed in a creative capacity, IN THE IMAGE OF GOD. This is scripture and the baker cannot look at it any other way.

            For the Christian, a marriage law that contradicts the biblical law is a counterfeit. THIS IS THE BURDEN OF CONSCIENCE FOR THE BAKER. If someone wanted to marry their computer and asked the baker to bake the cake, he would decline because it would counterfeit the Image of God in marriage.

            Do you believe the baker has a right to believe the biblical view of marriage or do you feel he should deny his right to believe?

          • SammySeattle

            October 2, 2017 at 10:04 am

            Discrimination is discrimination. No matter how you use religion to dance around the fact and deny that it occurred. No, the baker does not have a right to discriminate against his fellow citizens. We’ve gone round and round about this.

          • believer

            October 2, 2017 at 10:16 am

            You do realize that when you use the phrase “use your religion” for whatever reason is very hurtful because it suggests that the person does not love God. It’s like using derogatory statements to describe homosexuals. But the bottom line is the baker’s spirituality is just a much a part of him as your gayism is part of you.

            Why do homosexuals want to force the baker to participate in a religious marriage ceremony when the homosexuals are not religious? I’m guessing that the two men who approached the baker are themselves not religious.

          • SammySeattle

            October 2, 2017 at 10:52 am

            do you realize that discrimination is hurtful? So hurtful that it’s necessary to create laws to prevent it. And some people will go to extremes to try to preserve discriminatory attitudes toward their fellow citizens. It’s shameful, especially when you use your religion as means to discriminate.

          • believer

            October 2, 2017 at 11:04 am

            From everything discussed, it does not appear to be discrimination at all, but false accusations of such because homosexuals, who btw are not religious, want the baker to participate in a religious ceremony that violates his faith. The baker will win this case because he has shown that he is not a bigot and he has also shown that he is a true Christian and that he loves and honors God’s Image in marriage.

          • SammySeattle

            October 2, 2017 at 11:18 am

            What is climate like on your planet? it’s not discrimination because the plaintiffs are gay?

          • SammySeattle

            October 2, 2017 at 11:25 am

            So you’ve jumped from “guessing they’re not religious” to deeming them not religious in just two comments.

          • Mark Bradshaw

            October 2, 2017 at 12:07 am

            What specific right was denied by the baker (and florist)? One does NOT have a right to the goods and labor of another, so what specific right were the homosexual couple denied by the baker (and florist)?

          • SammySeattle

            October 2, 2017 at 12:39 am

            When the baker and the florist offered their goods and services to the public they made themselves subject to anti-discrimination statutes. Any member of the public than had the right to those services.

          • believer

            September 28, 2017 at 10:23 pm

            So the baker is free to believe but not free to love?

          • SammySeattle

            September 29, 2017 at 10:56 am

            Discrimination is the poorest example of “love”.

          • believer

            September 29, 2017 at 1:49 pm

            So the baker is free to believe, but not free to love?

          • glenbo

            September 27, 2017 at 8:37 pm

            What proof do you have that homosexuals targeted” anyone?

          • believer

            September 27, 2017 at 10:54 pm

            Because of the fact that finding the Christian baker was like finding a needle in a haystack because there were many other bakeries they could have purchased from. The same with the florists and all the others. The homosexuals were looking to get paid because they knew the Christians would not violate their faith so they were ripe for the suing.

          • Natureboi

            September 27, 2017 at 8:40 pm

            Why is it okay to participate and celebrate an adulterous wedding?

            And you didn’t answer my previous question:

            How do you know homosexual attractions aren’t a product of nature…just like having two heads or both male and female genitalia?

          • believer

            September 27, 2017 at 10:49 pm

            Marriage is the first divine law of Christianity. It is the unity between a man and a woman. Marriage can only occur between a man and a woman. We celebrate marriage. We know that homosexuality is an abomination. It is unable to produce. Homosexuality is when a person rejects their natural gender in favor of the opposite gender or some variation. Homosexuals do not have both reproductive organs. If they did, why can’t they reproduce?

          • Natureboi

            September 28, 2017 at 7:45 am

            Why didn’t you answer my questions?

          • believer

            September 28, 2017 at 10:22 am

            Why is it okay to participate and celebrate an adulterous wedding?
            Marriage is the first divine law of Christianity. It is the unity between a man and a woman. Marriage can only occur between a man and a woman. We celebrate marriage.
            How do you know homosexual attractions aren’t a product of nature…just like having two heads or both male and female genitalia?
            We know that homosexuality is an abomination. It is unable to produce. Homosexuality is when a person rejects their natural gender in favor of the opposite gender or some variation. Homosexuals do not have both reproductive organs. If they did, why can’t they reproduce?

          • Natureboi

            September 28, 2017 at 10:54 am

            You are avoiding answering my questions.
            This indicates you have a sinister anti LGBT agenda based on your bigotry towards LGBT people.
            You lose all credibility.

          • believer

            September 28, 2017 at 10:33 pm

            I did answer your questions but you apparently don’t like my answers. There is no scientific or biological reason for homosexuality since it is a choice in lifestyle. You are free to sin. You’re just not free to force the the baker to sin along with you.

          • Natureboi

            September 29, 2017 at 7:07 am

            No, you didn’t answer my questions.
            You are a bigot.

          • believer

            September 29, 2017 at 1:51 pm

            Just because I disagree with you does not make me a bigot.

          • Natureboi

            September 29, 2017 at 3:08 pm

            Yes, you are.
            You intentionally dodged my questions because answering them honestly would validate your self-denied but oh so obvious bigotry.
            You cherry-pick biblical laws to follow or ignore at your whim.
            You refuse to acknowledge that homosexual attractions are natural and biologically occurring…just like intersex because it contrasts with your bigoted disposition towards homosexuals.
            You have no merit and no credibility.

          • believer

            September 28, 2017 at 10:17 am

            test

  3. SammySeattle

    October 2, 2017 at 10:00 am

    Actually, that is the basis of all commerce law.

    • Mark Bradshaw

      October 2, 2017 at 12:53 pm

      No, it is NOT. One cannot compel another to provide goods and services through labor of another person. NOBODY has a right to anyone else’s labor. Any law that establishes such a “right” is unconstitutional and flies in the face of liberty and freedom.

      • SammySeattle

        October 2, 2017 at 1:38 pm

        And yet, myriad non-discrimination statutes stand. It’s almost as if you have no idea what you’re talking about.

        • Mark Bradshaw

          October 2, 2017 at 2:02 pm

          So did slavery laws. The fact that they “stand” is IRRELEVANT. They are unconstitutional.

          – The right to refuse service – https://www.adflegal.org/detailspages/blog-details/allianceedge/2015/05/08/key-decision-brings-hope-for-rights-of-conscience-cases-coast-to-coast
          An Absolute Right to Refuse Service –https://townhall.com/columnists/mattbarber/2014/03/02/an-absolute-right-to-refuse-service-n1803031

          • SammySeattle

            October 2, 2017 at 3:00 pm

            Yeah, remind me, what is the ADF win/loss record? Non-discrimination laws are not unconstitutional, despite the pleas of bigots for unfettered discrimination.

          • Mark Bradshaw

            October 2, 2017 at 3:08 pm

            I have no idea what their “win/loss record” is. That is IRRELEVANT. Laws that unequally apply to certain groups is discriminatory. Anti-discrimination laws apply differently to people of faith. They restrict one’s ability to simply say “No thanks” to supporting something that violates their conscience – much in the same way a painter/artist cannot be compelled to paint something which offends him/her.

            There was absolutely ZERO discrimination by these Christian business owners. They simply did not want to provide their goods and labor in support of something that violates their religious conscience. NOBODY has a right to the goods and labor of another.

          • SammySeattle

            October 2, 2017 at 4:00 pm

            They apply to all people equally. Once you’ve offered goods and services to the public you can’t pick and choose which members of the public are worthy of the offer.

          • Mark Bradshaw

            October 2, 2017 at 4:12 pm

            NO, they DON’T. They unequally prevent business owners who have a faith from living every aspect of their life according to their faith.

            “Once you’ve offered goods and services to the public you can’t pick and choose which members of the public are worthy of the offer.” —– This is NOT what these Christian business owners have done, nor is it what I am advocating for. The business owners didn’t refuse service based upon WHO the customers were/are. They didn’t “pick and choose which members of the public are worthy of the offer”.

          • SammySeattle

            October 2, 2017 at 4:59 pm

            A business owner’s faith and belief do not excuse them from discriminating against other citizens. It’s that simple. Open to the public, open to all. Offer a service to the public, it’s offered to all.

          • Mark Bradshaw

            October 2, 2017 at 5:48 pm

            The business owners did NOT discriminate against the person, but simply refused to support the EVENT.

            He WAS open to all and gladly served ANYONE (including homosexuals) that walked through his doors. NOBODY has a right to the goods and labor of another – PERIOD.

          • SammySeattle

            October 2, 2017 at 6:15 pm

            The event only differs from any other of the like by the participants. He discriminated against the participants. You might want to learn about public accommodation statutes and all that they entail before you open a business.

          • Mark Bradshaw

            October 2, 2017 at 6:18 pm

            And a KKK rally differs from any other rally only by its participants. The participants were IRRELEVANT in the baker’s (and florist’s) decision.

            You might want to educate yourself about the Constitution and the basic liberties/freedoms protected by it.

          • SammySeattle

            October 2, 2017 at 7:08 pm

            Oh, please. The participants status had everything to do with the refusal of service in these cases. I’m well versed in both matters of constitutional protections and in anti-discrimination law. The defendants in these cases will learn the limits of their bigotry soon enough.

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Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead

No political willpower to force vote or reach a compromise

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Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.

Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.

In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.

If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.

“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”

The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.

Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”

“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process.  We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”

Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.

“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”

A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.

Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”

Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.

The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.

Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.

“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”

Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.

For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.

Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”

“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”

But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.

No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.

Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.

“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”

Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.

Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.

Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.

To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.

A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.

“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”

But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.

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D.C. bill to ban LGBTQ panic defense delayed by Capitol security

Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots

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New fencing around the Capitol following the Jan. 6 insurrection prevented some D.C. bills from being delivered to the Hill for a required congressional review. (Blade file photo by Michael K. Lavers)

A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.

According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.

“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.

Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.

Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.

Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.

But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.

“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”

If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.

A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.

“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.

“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.

The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.

“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.

LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.

Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.

In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.

LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.

Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.

The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.

“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”

He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.

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D.C. man charged with 2020 anti-gay death threat rearrested

Defendant implicated in three anti-LGBTQ incidents since 2011

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shooting, DC Eagle, assault, hate crime, anti-gay attack, police discrimination, sex police, Sisson, gay news, Washington Blade

A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.

D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.

Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.

According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.

Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.

An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.

“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”

The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”

Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.

Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.

In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.

“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.

Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.

The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.

In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”

At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.

The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.

The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.

In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.

The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.

It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.

Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.

The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.

The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.

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