New rulings from federal appeals courts that have found an existing civil rights law against sex discrimination also prohibits anti-LGBT discrimination are shaking up the landscape for protections for LGBT people in the workplace.
In the past month, two circuit courts — the U.S. Second Circuit Court of Appeals and the U.S. Sixth Circuit Court of Appeals — have determined Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex in the workplace, applies to LGBT people.
The Second Circuit found the anti-gay discrimination is a form of sex discrimination in the case against Altitude Express in New York filed by Donald Zarda, a gay now deceased skydiver. That decision made the Second Circuit one of two circuits where sexual-orientation discrimination is unequivocally prohibited under federal law, complementing a decision from the U.S. Seventh Circuit Court of Appeals last year.
The next week, the U.S. Sixth Circuit Court of Appeals determined Title VII bars anti-trans discrimination in the case against Harris Funeral Homes in Michigan. That decision also found the Religious Freedom Restoration Act doesn’t provide an exemption to employers seeking a religious exemption to discriminate against transgender workers. As a result of the ruling, the Sixth Circuit joins the First, Ninth and Eleventh Circuits in barring anti-trans workplace discrimination without dispute.
Sharita Gruberg, associate director of LGBT research and communications at the Center for American Progress, said the circuit court decisions are “incredibly important” tools against anti-LGBT discrimination.
“Title VII provides strong protections against discrimination in the workplace,” Gruberg said. “If you are an employee in any one of those circuits that have already held that you’re protected, that gives you recourse. Also, there’s a lot of district courts that have also found Title VII prohibits discrimination based on gender identity and sexual orientation. So we’re seeing a lot more jurisdictions across the country agreeing with this definition.”
As a result of these court rulings, workplace protections for LGBT people have advanced in measurable ways. Federal law in the states of the Sixth Circuit — Michigan, Ohio, Kentucky and Tennessee — now unequivocally bar discrimination against transgender workers. Although each of the states in the Second Circuit — Vermont, Connecticut and New York — already has state a law barring anti-gay discrimination, the ruling enables lesbian, gay and bisexual workers to sue under federal law. That requires a lower threshold of evidence for a successful case than state law because it allows charges when the firings were the result of mixed motivations.
Because each individual plaintiff either faces discrimination on the basis of sexual orientation or gender identity, courts have interpreted Title VII to apply to LGBT workers in a kind of two-layered approach. No court ruling against anti-gay or anti-trans discrimination explicitly covers the other. However, the reasoning is often based on the determination that anti-LGBT discrimination is sex-stereotyping, which means a ruling against anti-gay or anti-trans discrimination could easily bolster a case of the other kind of discrimination.
The number of circuit courts that have determined Title VII applies to LGBT workers may soon grow. The LGBT legal group Lambda Legal and the St. Louis-based law firm Mathis, Marifian & Richter LTD have brought before the U.S. Eighth Circuit Court of Appeals another lawsuit that could affirm protections in the jurisdiction for lesbian, gay and bisexual workers. The litigation was filed on behalf of Mark Horton, a health care sales specialist whose job offer at Midwest Geriatric Management was rescinded after the employer found out he’s gay.
Last week, 47 businesses, attorneys general from 15 states and D.C., the U.S. Equal Employment Opportunity Commission and major LGBT groups were among those that filed friend-of-the-court briefs before the Eighth Circuit urging the court to rule in favor of Horton and affirm Title VII protections for lesbian, gay and bisexual workers.
Omar Gonzalez-Pagan, staff attorney for Lambda Legal, said in a statement the briefs demonstrate “the nation’s top corporations recognize that discrimination is bad for business.”
“Our economy cannot thrive unless all people are welcome both as employees and customers,” Gonzalez-Pagan said. “Companies across all industries know that when an employee like Mark can bring their whole selves to work without fear of retaliation, they can focus on their jobs and succeed. Mark was recruited because of his recognized skills, which is what matters – and not his sexual orientation.”
But not every court is in alignment with the idea that Title VII protects LGBT workers. In a case filed by Jameka Evans, who alleged Georgia Regional Hospital fired her as a security guard for being a lesbian, the Eleventh Circuit Court of Appeals last year determined Title VII doesn’t apply to lesbian, gay and bisexual workers because Congress didn’t intend that when it passed the law in 1964. Other circuits have years-old precedent against protections for LGBT people under Title VII.
Moreover, the Trump administration has defied court rulings and reversed federal policy from the Obama years determining laws against sex discrimination apply to transgender people. On Title VII, U.S. Attorney General Jeff Sessions reversed a memo from former Attorney General Eric Holder assuring transgender workers protections. The Obama administration never explicitly took a position one way or the other on whether Title VII applies to lesbian, gay and bisexual workers, but the Trump administration sent a lawyer to the Second Circuit to argue against interpreting the law in favor of gay people in the Zarda case.
That view of sex discrimination under the Trump administration isn’t limited to Title VII. The Trump administration also rescinded guidance assuring transgender kids access to school restrooms consistent with their gender identity under the Title IX of the Education Amendments of 1972. The Justice Department also backed down from defending in court a rule assuring transgender people’s access to health care, including gender reassignment surgery, based on Section 1557 of Obamacare, which prohibits sex discrimination by medical providers.
Walter Olson, a senior fellow at the libertarian Cato Institute, said the idea Title VII applies to LGBT workers is “something of a stretch” based on the intent of Congress in 1964 as well as lawmakers’ inability since that time to pass an explicit law against anti-LGBT discrimination, such as the Employment Non-Discrimination Act.
“When this question first came up years ago, several circuit courts of appeals had rejected the idea that by banning sex discrimination Congress had also banned sexual orientation discrimination,” Olson said. “The cases back then were clear enough and consistent enough that lawyers regarded the issue as practically settled and so advised their clients. And law runs on precedent.”
Still, Olson conceded “there are also some pretty good arguments in favor of the effort” to interpret Title VII to apply to LGBT workers because “the law as interpreted by courts does change.”
“As we have seen in constitutional law, when narrow interpretations get broadened the world does not necessarily come to an end,” Olson said “And in the past couple of years there has been first a trickle and now a definite movement of federal courts toward a new position that ‘because of sex’ does cover sexual orientation after all. If that’s a stretch, then it’s the kind of stretch we’ve seen many times before, both in Title VII and elsewhere.”
As opposed to just leaving the issue to the judiciary, Gruberg said LGBT advocates should pressure Congress to enact an explicit prohibition on anti-LGBT discrimination because of the uncertainty of the courts and possible reversals from the federal government depending on which administration is in power.
“There’s still parts of the country where it’s an individual worker’s right and whether it’s their right to work free from discrimination because of their sexual orientation or gender identity will be upheld is not clear, and it’s really critical that Congress bring that clarity,” Gruberg said.
The likely vehicle for explicit legislative protections against anti-LGBT discrimination is the Equality Act, which would amend the Civil Rights Act of 1964 to prohibit anti-LGBT discrimination in employment, housing, public accommodations, credit, jury service, education and federal programs. The chief sponsor of the bill is Rep. David Cicilline (D-R.I.) in the U.S. House and Sen. Jeff Merkley (D-Ore.) in the U.S. Senate.
However, the bill is highly unlikely to move as long as Republicans retain control of Congress. In a 2000 interview with The Advocate, President Trump said he supports the idea of a bill that would add sexual orientation to the Civil Rights Act, but hasn’t addressed the issue since that time, nor whether he’d support adding protections for transgender people to the law. It seems unlikely he would support that now based on the record of his administration.
The U.S. Equal Employment Opportunity Commission, the agency charged with enforcing federal employment civil rights law, has determined in recent years Title VII applies to LGBT workers and decided to take up charges of anti-LGBT discrimination on behalf of workers. The commission found in 2012 Title VII applies to transgender workers in the case of Macy v. Holder and found in 2015 the law applies to lesbian, gay and bisexual workers in the case of Baldwin v. Foxx.
Data on the EEOC’s website indicates the charges and resolutions of anti-LGBT discrimination in the workforce has grown since the findings were made. In fiscal year 2017, the commission obtained 1,762 receipts of anti-LGBT discrimination and resolved 2,016 charges if anti-LGBT discrimination. (A total of 1,373 these FY-17 resolutions, however, were dismissed because EEOC found “no reasonable cause” for discrimination and another 304 were dismissed through administrative closures because, for some reason, such as a lack of contact information, EEOC couldn’t move forward with investigation.)
Even though the 11th Circuit in the Evans case has determined Title VII doesn’t apply to lesbian, gay and bisexual workers, the commission continues to interpret the law that way in that jurisdiction.
Christine Nazer, a spokesperson for the EEOC, affirmed the commission continues to apply the law in opposition to anti-gay discrimination in the 11th Circuit because the EEOC works as as independent agency.
“The agency’s position doesn’t change because of a circuit court decision,” Nazer said. “When we take charges of workplace discrimination (in this case, sexual orientation and gender identity charges) from the public, we apply Title VII/sex discrimination. In other words, our administrative process doesn’t charge; we determine the merit of the charge based on the law and EEOC policy.”
Gruberg said the EEOC has stood apart from other agencies in the Trump administration in continuing to uphold the idea laws against sex discrimination apply to transgender workers because of the nature of the commission.
“Even the conservative commissioners come from this kind of employment law background, and they have a very deep strong understanding of what Title VII entails and what the law says and what the non-discrimination protections includes and have been reviewing these cases and very familiar with it,” Gruberg said.
It’s hard to say when the U.S. Supreme Court will have an opportunity to decide the issue on a nationwide basis and affirm without a doubt Title VII protects either gay or transgender workers from discrimination. The high court declined to take up an opportunity last year to decide the issue in terms of anti-gay discrimination by declining a petition for certiorari in the 11th Circuit case filed by Jameka Evans against Georgia Regional Hospital.
There may be another opportunity if Altitude Express, the company that fired Zarda, filed a petition for certiorari over the Second Circuit. Although the business hasn’t announced one way or another what it will action, that action seems unlikely. An attorney for Attitude Express didn’t respond to a request to comment on whether a petition will be filed.
Another opportunity also may come after the Eighth Circuit decides against Horton, which may well be the case because the conservative court is stocked George W. Bush appointees. If Horton is the losing party, he could file a petition for certiorari before the Supreme Court.
Gruberg said the timing for when the Supreme Court will take up a case on whether gay protections are included under Title VII is “a very good question.”
“I think everyone feels that that’s coming,” Gruberg said. “It’s unclear what that case is going to be, though, so I think it’s probably a question that they’re going to take up soon, but what soon means in the court’s timeline is really unclear right now.”
The prospects are more daunting for a Supreme Court ruling asserting Title VII covers transgender people compared to anti-gay discrimination because the circuit courts have reached a greater consensus anti-trans discrimination is illegal. Transgender advocates are unable to seek review of wins before the Supreme Court because they have to take “yes” for an answer from the circuit courts.
However, a ruling from the Supreme Court for either gay or transgender people on Title VII, Gruberg said, would be significant not only for employment protections, but because it would have implications for other civil rights laws barring sex discrimination.
“It would definitely shift the tide in our favor when we’re trying to interpret what sex discrimination under Title IX means. That would also weigh really heavily into that, including protections for LGBTQ people, sex discrimination in Section 1557 also,” Gruberg said. “It would be very clear LGBTQ people are protected under that as well.”
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Honoring the legacy of New Orleans’ 1973 UpStairs Lounge fire
Why the arson attack that killed 32 gay men still resonates 50 years later
On June 23 of last year, I held the microphone as a gay man in the New Orleans City Council Chamber and related a lost piece of queer history to the seven council members. I told this story to disabuse all New Orleanians of the notion that silence and accommodation, in the face of institutional and official failures, are a path to healing.
The story I related to them began on a typical Sunday night at a second-story bar on the fringe of New Orleans’ French Quarter in 1973, where working-class men would gather around a white baby grand piano and belt out the lyrics to a song that was the anthem of their hidden community, “United We Stand” by the Brotherhood of Man.
“United we stand,” the men would sing together, “divided we fall” — the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to today’s queer safe havens.
Around that piano in the 1970s Deep South, gays and lesbians, white and Black queens, Christians and non-Christians, and even early gender minorities could cast aside the racism, sexism, and homophobia of the times to find acceptance and companionship for a moment.
For regulars, the UpStairs Lounge was a miracle, a small pocket of acceptance in a broader world where their very identities were illegal.
On the Sunday night of June 24, 1973, their voices were silenced in a murderous act of arson that claimed 32 lives and still stands as the deadliest fire in New Orleans history — and the worst mass killing of gays in 20th century America.
As 13 fire companies struggled to douse the inferno, police refused to question the chief suspect, even though gay witnesses identified and brought the soot-covered man to officers idly standing by. This suspect, an internally conflicted gay-for-pay sex worker named Rodger Dale Nunez, had been ejected from the UpStairs Lounge screaming the word “burn” minutes before, but New Orleans police rebuffed the testimony of fire survivors on the street and allowed Nunez to disappear.
As the fire raged, police denigrated the deceased to reporters on the street: “Some thieves hung out there, and you know this was a queer bar.”
For days afterward, the carnage met with official silence. With no local gay political leaders willing to step forward, national Gay Liberation-era figures like Rev. Troy Perry of the Metropolitan Community Church flew in to “help our bereaved brothers and sisters” — and shatter officialdom’s code of silence.
Perry broke local taboos by holding a press conference as an openly gay man. “It’s high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,” Perry said.
Two days later, on June 26, 1973, as families hesitated to step forward to identify their kin in the morgue, UpStairs Lounge owner Phil Esteve stood in his badly charred bar, the air still foul with death. He rebuffed attempts by Perry to turn the fire into a call for visibility and progress for homosexuals.
“This fire had very little to do with the gay movement or with anything gay,” Esteve told a reporter from The Philadelphia Inquirer. “I do not want my bar or this tragedy to be used to further any of their causes.”
Conspicuously, no photos of Esteve appeared in coverage of the UpStairs Lounge fire or its aftermath — and the bar owner also remained silent as he witnessed police looting the ashes of his business.
“Phil said the cash register, juke box, cigarette machine and some wallets had money removed,” recounted Esteve’s friend Bob McAnear, a former U.S. Customs officer. “Phil wouldn’t report it because, if he did, police would never allow him to operate a bar in New Orleans again.”
The next day, gay bar owners, incensed at declining gay bar traffic amid an atmosphere of anxiety, confronted Perry at a clandestine meeting. “How dare you hold your damn news conferences!” one business owner shouted.
Ignoring calls for gay self-censorship, Perry held a 250-person memorial for the fire victims the following Sunday, July 1, culminating in mourners defiantly marching out the front door of a French Quarter church into waiting news cameras. “Reverend Troy Perry awoke several sleeping giants, me being one of them,” recalled Charlene Schneider, a lesbian activist who walked out of that front door with Perry.
Esteve doubted the UpStairs Lounge story’s capacity to rouse gay political fervor. As the coroner buried four of his former patrons anonymously on the edge of town, Esteve quietly collected at least $25,000 in fire insurance proceeds. Less than a year later, he used the money to open another gay bar called the Post Office, where patrons of the UpStairs Lounge — some with visible burn scars — gathered but were discouraged from singing “United We Stand.”
New Orleans cops neglected to question the chief arson suspect and closed the investigation without answers in late August 1973. Gay elites in the city’s power structure began gaslighting the mourners who marched with Perry into the news cameras, casting suspicion on their memories and re-characterizing their moment of liberation as a stunt.
When a local gay journalist asked in April 1977, “Where are the gay activists in New Orleans?,” Esteve responded that there were none, because none were needed. “We don’t feel we’re discriminated against,” Esteve said. “New Orleans gays are different from gays anywhere else… Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.”
An attitude of nihilism and disavowal descended upon the memory of the UpStairs Lounge victims, goaded by Esteve and fellow gay entrepreneurs who earned their keep via gay patrons drowning their sorrows each night instead of protesting the injustices that kept them drinking.
Into the 1980s, the story of the UpStairs Lounge all but vanished from conversation — with the exception of a few sanctuaries for gay political debate such as the local lesbian bar Charlene’s, run by the activist Charlene Schneider.
By 1988, the 15th anniversary of the fire, the UpStairs Lounge narrative comprised little more than a call for better fire codes and indoor sprinklers. UpStairs Lounge survivor Stewart Butler summed it up: “A tragedy that, as far as I know, no good came of.”
Finally, in 1991, at Stewart Butler and Charlene Schneider’s nudging, the UpStairs Lounge story became aligned with the crusade of liberated gays and lesbians seeking equal rights in Louisiana. The halls of power responded with intermittent progress. The New Orleans City Council, horrified by the story but not yet ready to take its look in the mirror, enacted an anti-discrimination ordinance protecting gays and lesbians in housing, employment, and public accommodations that Dec. 12 — more than 18 years after the fire.
“I believe the fire was the catalyst for the anger to bring us all to the table,” Schneider told The Times-Picayune, a tacit rebuke to Esteve’s strategy of silent accommodation. Even Esteve seemed to change his stance with time, granting a full interview with the first UpStairs Lounge scholar Johnny Townsend sometime around 1989.
Most of the figures in this historic tale are now deceased. What’s left is an enduring story that refused to go gently. The story now echoes around the world — a musical about the UpStairs Lounge fire recently played in Tokyo, translating the gay underworld of the 1973 French Quarter for Japanese audiences.
When I finished my presentation to the City Council last June, I looked up to see the seven council members in tears. Unanimously, they approved a resolution acknowledging the historic failures of city leaders in the wake of the UpStairs Lounge fire.
Council members personally apologized to UpStairs Lounge families and survivors seated in the chamber in a symbolic act that, though it could not bring back those who died, still mattered greatly to those whose pain had been denied, leaving them to grieve alone. At long last, official silence and indifference gave way to heartfelt words of healing.
The way Americans remember the past is an active, ongoing process. Our collective memory is malleable, but it matters because it speaks volumes about our maturity as a people, how we acknowledge the past’s influence in our lives, and how it shapes the examples we set for our youth. Do we grapple with difficult truths, or do we duck accountability by defaulting to nostalgia and bluster? Or worse, do we simply ignore the past until it fades into a black hole of ignorance and indifference?
I believe that a factual retelling of the UpStairs Lounge tragedy — and how, 50 years onward, it became known internationally — resonates beyond our current divides. It reminds queer and non-queer Americans that ignoring the past holds back the present, and that silence is no cure for what ails a participatory nation.
Silence isolates. Silence gaslights and shrouds. It preserves the power structures that scapegoat the disempowered.
Solidarity, on the other hand, unites. Solidarity illuminates a path forward together. Above all, solidarity transforms the downtrodden into a resounding chorus of citizens — in the spirit of voices who once gathered ‘round a white baby grand piano and sang, joyfully and loudly, “United We Stand.”
Robert W. Fieseler is a New Orleans-based journalist and the author of “Tinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.”
New Supreme Court term includes critical LGBTQ case with ‘terrifying’ consequences
Business owner seeks to decline services for same-sex weddings
The U.S. Supreme Court, after a decision overturning Roe v. Wade that still leaves many reeling, is starting a new term with justices slated to revisit the issue of LGBTQ rights.
In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a website designer in Colorado who wants to opt out of providing her graphic design services for same-sex weddings despite the civil rights law in her state.
Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.
“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person — if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”
The upcoming arguments and decision in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had no lawsuit to directly address the issue in its previous term, although many argued the Dobbs decision put LGBTQ rights in peril and threatened access to abortion for LGBTQ people.
And yet, the 303 Creative case is similar to other cases the Supreme Court has previously heard on the providers of services seeking the right to deny services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both of those cases, however, the court issued narrow rulings on the facts of litigation, declining to issue sweeping rulings either upholding non-discrimination principles or First Amendment exemptions.
Pizer, who signed one of the friend-of-the-court briefs in opposition to 303 Creative, said the case is “similar in the goals” of the Masterpiece Cakeshop litigation on the basis they both seek exemptions to the same non-discrimination law that governs their business, the Colorado Anti-Discrimination Act, or CADA, and seek “to further the social and political argument that they should be free to refuse same-sex couples or LGBTQ people in particular.”
“So there’s the legal goal, and it connects to the social and political goals and in that sense, it’s the same as Masterpiece,” Pizer said. “And so there are multiple problems with it again, as a legal matter, but also as a social matter, because as with the religion argument, it flows from the idea that having something to do with us is endorsing us.”
One difference: the Masterpiece Cakeshop litigation stemmed from an act of refusal of service after owner, Jack Phillips, declined to make a custom-made wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past, however, is present in the 303 Creative case. The owner seeks to put on her website a disclaimer she won’t provide services for same-sex weddings, signaling an intent to discriminate against same-sex couples rather than having done so.
As such, expect issues of standing — whether or not either party is personally aggrieved and able bring to a lawsuit — to be hashed out in arguments as well as whether the litigation is ripe for review as justices consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to lead the court to reach less sweeping decisions (sometimes successfully, and sometimes in the Dobbs case not successfully) to push for a decision along these lines.
Another key difference: The 303 Creative case hinges on the argument of freedom of speech as opposed to the two-fold argument of freedom of speech and freedom of religious exercise in the Masterpiece Cakeshop litigation. Although 303 Creative requested in its petition to the Supreme Court review of both issues of speech and religion, justices elected only to take up the issue of free speech in granting a writ of certiorari (or agreement to take up a case). Justices also declined to accept another question in the petition request of review of the 1990 precedent in Smith v. Employment Division, which concluded states can enforce neutral generally applicable laws on citizens with religious objections without violating the First Amendment.
Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking exemptions based on the First Amendment, such as the Masterpiece Cakeshop case.
Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a decision in favor of 303 Creative boils down to a clear-cut violation of the First Amendment.
“Colorado and the United States still contend that CADA only regulates sales transactions,” the brief says. “But their cases do not apply because they involve non-expressive activities: selling BBQ, firing employees, restricting school attendance, limiting club memberships, and providing room access. Colorado’s own cases agree that the government may not use public-accommodation laws to affect a commercial actor’s speech.”
Pizer, however, pushed back strongly on the idea a decision in favor of 303 Creative would be as focused as Alliance Defending Freedom purports it would be, arguing it could open the door to widespread discrimination against LGBTQ people.
“One way to put it is art tends to be in the eye of the beholder,” Pizer said. “Is something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember ‘soup and art’? We have had an understanding that whether something is beautiful or not is not the determining factor about whether something is protected as artistic expression. There’s a legal test that recognizes if this is speech, whose speech is it, whose message is it? Would anyone who was hearing the speech or seeing the message understand it to be the message of the customer or of the merchants or craftsmen or business person?”
Despite the implications in the case for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who consider themselves proponents of free speech.
One joint friend-of-the-court brief before the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who’s written in favor of LGBTQ rights, and Eugene Volokh, a First Amendment legal scholar at the University of California, Los Angeles, argues the case is an opportunity to affirm the First Amendment applies to goods and services that are uniquely expressive.
“Distinguishing expressive from non-expressive products in some contexts might be hard, but the Tenth Circuit agreed that Smith’s product does not present a hard case,” the brief says. “Yet that court (and Colorado) declined to recognize any exemption for products constituting speech. The Tenth Circuit has effectively recognized a state interest in subjecting the creation of speech itself to antidiscrimination laws.”
Oral arguments in the case aren’t yet set, but may be announced soon. Set to defend the state of Colorado and enforcement of its non-discrimination law in the case is Colorado Solicitor General Eric Reuel Olson. Just this week, the U.S. Supreme Court announced it would grant the request to the U.S. solicitor general to present arguments before the justices on behalf of the Biden administration.
With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block. After the U.S. Tenth Circuit Court of Appeals ruled against 303 Creative in the lawsuit, the simple action by the Supreme Court to grant review in the lawsuit suggests they are primed to issue a reversal and rule in favor of the company.
Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.
“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”
Kelley Robinson, a Black, queer woman, named president of Human Rights Campaign
Progressive activist a veteran of Planned Parenthood Action Fund
Kelley Robinson, a Black, queer woman and veteran of Planned Parenthood Action Fund, is to become the next president of the Human Rights Campaign, the nation’s leading LGBTQ group announced on Tuesday.
Robinson is set to become the ninth president of the Human Rights Campaign after having served as executive director of Planned Parenthood Action Fund and more than 12 years of experience as a leader in the progressive movement. She’ll be the first Black, queer woman to serve in that role.
“I’m honored and ready to lead HRC — and our more than three million member-advocates — as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,” Robinson said. “This is a pivotal moment in our movement for equality for LGBTQ+ people. We, particularly our trans and BIPOC communities, are quite literally in the fight for our lives and facing unprecedented threats that seek to destroy us.”
The next Human Rights Campaign president is named as Democrats are performing well in polls in the mid-term elections after the U.S. Supreme Court overturned Roe v. Wade, leaving an opening for the LGBTQ group to play a key role amid fears LGBTQ rights are next on the chopping block.
“The overturning of Roe v. Wade reminds us we are just one Supreme Court decision away from losing fundamental freedoms including the freedom to marry, voting rights, and privacy,” Robinson said. “We are facing a generational opportunity to rise to these challenges and create real, sustainable change. I believe that working together this change is possible right now. This next chapter of the Human Rights Campaign is about getting to freedom and liberation without any exceptions — and today I am making a promise and commitment to carry this work forward.”
The Human Rights Campaign announces its next president after a nearly year-long search process after the board of directors terminated its former president Alphonso David when he was ensnared in the sexual misconduct scandal that led former New York Gov. Andrew Cuomo to resign. David has denied wrongdoing and filed a lawsuit against the LGBTQ group alleging racial discrimination.
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