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Lupe Valdez’s campaign for the ‘everyday Texan’ could make LGBT history

Democratic victor in May 22 run-off will take on anti-LGBT Gov. Abbott

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Former Dallas County Sheriff Lupe Valdez is running to become governor of Texas. (Photo courtesy Valdez campaign)

You can count many ways in which former Dallas County Sheriff Lupe Valdez’s election as the next governor of Texas would be a milestone victory.

She could become the first openly gay person elected governor in the United States. She could be the second Latina governor. Her victory as a Democrat would unseat an anti-LGBT incumbent and represent a change for the Republican stronghold state.

But in an exclusive interview Monday with the Washington Blade, Valdez wasn’t focused on those milestones and said the focus of her bid for the Democratic nomination to unseat Texas Gov. Greg Abbott was on the “everyday Texan.”

“The everyday Texan is finding it harder and harder to make ends meet, to get ahead and stay ahead, and our current governor has more interest in his special issue than the everyday Texan,” Valdez said. “I’m committed to making the everyday Texan and, of course, the other folks, the LGBT, the minority actually have a say in the everyday Texas.”

Despite that focus, Valdez, who served four terms as Dallas County sheriff from 2005 to 2017 until she resigned to kick off her campaign, acknowledged being the first openly gay person elected governor in the United States would be significant.

“It would definitely say that Texas is what we actually believe it is — an inclusive state that welcomes all the people,” Valdez said. “And so therefore, I think my election would actually come out and stand strong in saying that this is not the old Texas, this is not the Texas of the past. This is a new Texas that is welcoming and will accept everybody.”

Valdez has competition for the distinction of being the first openly gay person elected governor. Other gay candidates seeking to become governor are Rep. Jared Polis (D-Colo.) in Colorado and state Sen. Rich Madaleno (D-Montgomery County) in Maryland. Bisexual Gov. Kate Brown is seeking re-election in Oregon and bisexual actress Cynthia Nixon is challenging Gov. Andrew Cuomo in New York. In Vermont, transgender businessperson Christine Hallquist is running for governor.

A win for Valdez would be a win for the LGBT community not just because she could be the first openly gay person elected governor, but also because she’d be taking out one of the most anti-LGBT governors in the country.

Among other things, Abbott has signed an anti-LGBT “religious freedom” adoption bill into law, urged the Texas Supreme Court to undermine the 2015 ruling for marriage equality nationwide, and called a special session of the state legislature for the sole purpose of passing anti-transgender bathroom legislation, which lawmakers ultimately rejected.

Valdez said Abbott’s tenure has “been harmful to everything, not just the LGBT,” including Texans as a whole and other minorities, such as Muslims and immigrants.

“I don’t believe that’s the Texas brand, and I want to show him,” Valdez said. “Discrimination is not acceptable in any shape, so we need to continue to fight against the bathroom bill. I’m trying to find a decent way to say this madness that is ‘show me your papers’ bills and discrimination bills. They’re unpopular with the majority of Texas. Yes, there’s a small percentage that is in favor, but the majority of Texas is not, so we need to start governing for the majority of Texas.”

If elected governor, Valdez said she’d take Texas in the opposite direction and seek to pass pro-LGBT bills, including legislation enacting a statewide prohibition on anti-LGBT discrimination.

“I’m going to fight for everybody, including the LGBTQ community,” Valdez said. “We have to have a comprehensive non-discrimination protections bill. We have to have a hate crimes protections bill, and we have to find some way of having health care that is culturally competent. Say that in a mouthful, but it’s true that we need to be sensitive to the HIV folks and transgender folks.”

With studies showing 40 percent of homeless youth are LGBT, Valdez also said making changes to assist the LGBT homeless population is an important task.

“You have the homeless youth that are kicked out, and there’s still old Texas attitudes, and they’re kicked out of the homes because they’re LGBTQ,” Valdez said. “In a homeless situation, the parents have to sign for the child to be able to go into a shelter. If he’s LGBTQ, the parent doesn’t even want to talk to them. How are they going to sign for it? We have to make arrangements for that.”

The potential of Valdez to become the first openly gay governor and unseat an anti-LGBT incumbent won her the endorsement of the LGBTQ Victory Fund, which declared its support for Valdez in March. The Human Rights Campaign hasn’t yet made an endorsement in the race.

Annise Parker, who’s CEO of the Victory Fund and won historic elections herself to become an openly gay mayor of Houston, said having a lesbian Latina defeat an anti-LGBT governor would “have enormous consequences for Texas and the entire country.”

“With a primary win this month, Lupe will set up a general election battle that puts positive solutions against the divisive politics Gov. Abbott thrives on – and in a deep red state with a legislature hostile to LGBTQ equality,” Parker said. “Electing a Democratic governor in Texas will be tough, but a victory would be transformational. With Lupe in the governor’s mansion, we know hateful legislation is dead on arrival, and legislators will be forced to focus on policies to improve people’s lives, not make them more difficult.”

Lupe Valdez as Dallas County sheriff. (Photo courtesy Valdez campaign)

But Valdez has to overcome an additional step before she wins the Democratic nomination to take on Abbott. Although Valdez won a plurality of the vote in the March 6 Democratic primary, the race now proceeds to a run-off with businessperson Andrew White, who was the runner-up. The run-off is set for May 22.

White has his own faction of support, including an endorsement from the Houston GLBT Political Caucus, but Valdez said her experience makes her the clear choice to become the Democratic nominee.

“I’m going to laugh here,” Valdez said. “I’m an Army veteran, I was a federal agent for over 20 years, I was the sheriff of Dallas County for the last 13 years. By the way, Dallas County is the ninth largest county in the United States, the sheriff’s department is the seventh largest department in the United States. I oversaw over 2,500 employees and I had a budget of over $160 million. The experience is what already talks.”

Valdez faces an uphill challenge in her bid to unseat Abbott in a traditionally Republican state. A Quinnipiac poll in April found she trails him by nine points, with Abbott leading 49-40 percent. Meanwhile, White has a similar standing and trails the incumbent by seven points, with Abbott leading 48-41 percent.

But Valdez said that poll is a good sign because Democrats in Texas in recent years have never had anything close to those numbers.

“Excuse me? Ten points is the closest we’ve been in over 10 years,” Valdez said. “The prior people that have run against have not gotten that close, and we haven’t even started running against him. We’re not even calling him out or going to him on anything. We’re just fighting right now in the Democratic primary. If we’re within 10 points, that’s the best any candidate has done in quite a while, and we haven’t even started with him.”

Valdez also said she isn’t afraid of a challenge, citing her beginnings in San Antonio as one of eight children of parents who were migrant farm workers.

“My favorite phrase on that, people keep saying, ‘This is an uphill challenge,'” Valdez said. “Excuse me? What kind of other challenges do we have? As an LGBTQ Latina from very humble beginnings, I don’t know if you know my story…I grew up in the poorest zip code and the highest crime in San Antonio. What other challenge have I had except uphill? That’s all we know is an uphill battle. So, I’m getting pretty good at these.”

With President Trump having occupied the White House for more than a year, Valdez also reflected on his presidency. In the aftermath of a transgender military ban, revocation of bathroom protections for transgender students and “religious freedom” executive actions, Valdez said Trump betrayed his campaign promise to be a friend to LGBT people.

“He started out his campaign saying that he was going to have LGBTQ rights, and he started out with that, but then he turned around and pulled some of the stuff he’s been pulling,” Valdez said. “All that says is — how do you politely say two-faced? I don’t know how you can politely say he said something for the campaign just to get people on your side, and then you turn around and do something else.”

Asked whether she’d seek to shield the Texas National Guard from the transgender military ban, Valdez said she’d “fight to stop some of his actions,” recalling her own experience being a lesbian in the military under an anti-gay ban at the time of the Vietnam War.

“Back then, there was no protection,” Valdez said. “I know what it feels like to be left out there with no protection. I know what it feels like to not have people support you. So, of course, I’m going to fight to put these protections [in]. The transgender people are of value to the National Guard, to the military, they’re of value. They wouldn’t have been accepted in the first place if they weren’t of value.”

Pressed on how she’d fight the transgender military ban, Valdez talked about statewide LGBT non-discrimination protections and the recent fight against the bathroom bill.

“We’re going to go back to the same thing, the comprehensive non-discrimination protections, the hate crimes protections and there is already a strong push in Texas for transgender protections,” Valdez said. “The bathroom bill was totally against transgender, and there were so many middle-class families who came up and fought and said, ‘Look at my child. My child is transgender and they’re causing no harm to your school.’ So there’s already a strong fight in Texas and we will build on that so we can pass laws to stop the discrimination against the transgender.”

Lupe Valdez in the Army National Guard. (Photo courtesy Valdez campaign)

On whether sexual orientation has emerged as an issue in her campaign, Valdez said it hasn’t come up and that marks a significant change from when she first ran for sheriff in 2004.

“I’m going to tell you a little story and that sometimes causes me pain. When I ran for sheriff 13 years ago, I went to the Latino Police Officers’ Association. I went to their leadership, and I said, ‘I would appreciate your endorsement,'” Valdez said. “One member literally said to me, ‘We are not going to endorse an f-ing lesbian. You will embarrass us and you will cause us nothing but embarrassment to our association.’ I mean, I can literally remember walking out of there with literally my heart in my feet because it was so painful.”

But Valdez said her victory as sheriff in the 2004 election proved that anti-gay member’s predictions were incorrect and “a majority of Dallas did not feel that way.”

“I was an out lesbian when I won,” Valdez said. “So, the majority of Dallas did not feel that. Are there people that still feel that way? Yes. But I don’t believe that is the majority of Texas. I do believe there are some loud, very loud voices against it. But I do believe they’re in the minority. As you become less positive, less powerful, you yell harder. And these people are yelling very hard because they’re not going to be the majority.”

Although Valdez said she hasn’t yet encountered opposition based on her sexual orientation in her gubernatorial campaign, she expects that to change when she secures the Democratic nomination and challenges Abbott head on.

“Remember we’re in the Democratic primary,” Valdez said. “I don’t think those will come until we get in the general. Most of the Democrats in Texas are pretty progressive and the state party has taken a stand for non-discrimination protections against LGBTQ…So, I don’t think I’ll run into those issues in the primary. Where those issues will come up, I’m sure, is in the general.”

Valdez’s race isn’t the only statewide contest in Texas attracting national attention. Another high-profile race is Rep. Beto O’Rourke’s (D) bid to unseat Sen. Ted Cruz (R), who’s up for re-election this year and has a strong anti-LGBT record that includes introducing a constitutional amendment that would have blocked the U.S. Supreme Court’s ruling for same-sex marriage.

A recent Quinnipiac poll put O’Rourke within striking distance of Cruz in November. Although the poll found 47 percent of Texas residents support Cruz, 44 percent back O’Rourke.

Valdez was initially reluctant to comment on the U.S. Senate race, saying she’s focused on her own, but conceded having both herself and O’Rourke on the Democratic ticket in November would have significant potential advantages.

“Of course, I want him to win,” Valdez said. “Of course, I would work with him and together both our campaigns would bring in some strong votes. He’s weak on the Hispanic vote. I’m very strong on the Hispanic vote, so a combination of both of us would more than likely bring out more voters.”

With Valdez and O’Rourke mounting strong challenges in Texas, the state could soon shift from being a “red” state to “purple” state, and a “blue” if demographics keep shifting to more a diverse population.

But Valdez said the change for a difference in election outcomes is already present because “Texas is not a red state, it’s a non-voting state” and her effort is focused on getting to the polls voters who haven’t cast ballots before.

“We’re going to go the grassroots and pull out these folks that have not been voting,” Valdez said. “And the fact is that happened with Hillary, all these people just assumed that Hillary was going to win, so we’re not going to go vote. I think Trump has been the best thing that happened to the Democrats because they’re all excited and they don’t want to see this happen again, so you have more people coming out to vote.”

Valdez said the victories of Democrats in recent special elections throughout the country and the strong Democratic turnout in the March 6 primary in Texas demonstrates Democrats are ready to head to the polls to make change.

“Something is happening, something is awakening our voters,” Valdez said. “I don’t know if it’s new voters, or the old voters just deciding maybe they better get out and vote, but we’re going to push for both of those, we’re going to push for new voters and we’re going to push for the voters that haven’t voted before. If you don’t vote, this is what we get. You need to vote to change it. You want stuff like Trump to continue, stay home, but none of us want that, so we’re going to push and get our message out and get folks to get out and vote.”

Lupe Valdez as Dallas County sheriff. (Photo courtesy Valdez campaign)

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Honoring the legacy of New Orleans’ 1973 UpStairs Lounge fire

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

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

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

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

“United we stand,” the men would sing together, “divided we fall” — the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to today’s queer safe havens. 

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

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

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

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

As the fire raged, police denigrated the deceased to reporters on the street: “Some thieves hung out there, and you know this was a queer bar.” 

For days afterward, the carnage met with official silence. With no local gay political leaders willing to step forward, national Gay Liberation-era figures like Rev. Troy Perry of the Metropolitan Community Church flew in to “help our bereaved brothers and sisters” — and shatter officialdom’s code of silence. 

Perry broke local taboos by holding a press conference as an openly gay man. “It’s high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,” Perry said. 

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

“This fire had very little to do with the gay movement or with anything gay,” Esteve told a reporter from The Philadelphia Inquirer. “I do not want my bar or this tragedy to be used to further any of their causes.” 

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

“Phil said the cash register, juke box, cigarette machine and some wallets had money removed,” recounted Esteve’s friend Bob McAnear, a former U.S. Customs officer. “Phil wouldn’t report it because, if he did, police would never allow him to operate a bar in New Orleans again.” 

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

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

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

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

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

When a local gay journalist asked in April 1977, “Where are the gay activists in New Orleans?,” Esteve responded that there were none, because none were needed. “We don’t feel we’re discriminated against,” Esteve said. “New Orleans gays are different from gays anywhere else… Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.” 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Robert W. Fieseler is a New Orleans-based journalist and the author of “Tinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.”

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

Business owner seeks to decline services for same-sex weddings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Progressive activist a veteran of Planned Parenthood Action Fund

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Kelley Robinson (Screen capture via HRC YouTube)

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

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

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

Kelley Robinson IS NAMED as The next human rights Campaign president

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

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

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

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