President Trump acknowledged Pride month via Twitter last week, but his well wishes for the LGBT community fell on skeptical ears following the extensive anti-LGBT actions of his administration.
In just the year since last Pride, the tally of anti-LGBT actions from the Trump administration dwarf the number of good things that have come from his presidency for the LGBT community.
With Pride celebrations underway, the Blade presents a list in no particular order of Trump’s positive and negative actions with direct impact on the LGBT community since 2018’s Pride celebration.
(-) 1. Embracing the Masterpiece Cakeshop decision
When the U.S. Supreme Court issued a narrow ruling last year in favor of Colorado baker Jack Phillips, many observers saw the decision as limited. After all, justices declined to find the First Amendment right Phillips asserted to refuse to make custom-made wedding cakes for same-sex couples.
But the Trump administration fully embraced the decision as a win for “religious freedom.” White House Press Secretary Sarah Huckabee Sanders said the court “rightly concluded” the Colorado Civil Rights Commission “failed to show tolerance and respect” for Phillips’ religious beliefs.
Soon after, the Labor Department issued guidance to ensure enforcement of LGBT non-discrimination rules complied with the ruling’s deference to religious freedom, even though the Trump administration wasn’t required to take that action.
(-) 2. White House meeting with Ginni Thomas
President Trump continues to meet with anti-LGBT activists in the White House, including a recent high-profile discussion with Ginni Thomas, the wife of conservative U.S. Associate Justice Clarence Thomas.
The New York Times reported Trump met in January with anti-LGBT activists led by Thomas in the Roosevelt Room of the White House. As Trump was reportedly “listening quietly,” members of the group denounced transgender people serving in the U.S. military.
In addition to decrying transgender military service, the anti-LGBT activists said women shouldn’t serve in the military “because they had less muscle mass and lung capacity than men.” They also said the Supreme Court ruling for marriage equality is “harming the fabric of the United States” and sexual assault isn’t pervasive in the military, according to the New York Times.
(-) 3. Coming out against the Equality Act
In the same week the U.S. House voted to approve the Equality Act, legislation that would amend the Civil Rights Act of 1964 to ban anti-LGBT discrimination, Trump came out against the bill.
In an exclusive statement to the Blade, a senior administration official said Trump opposes the Equality Act based on unspecified “poison pill” amendments to the legislation.
“The Trump administration absolutely opposes discrimination of any kind and supports the equal treatment of all; however, this bill in its current form is filled with poison pills that threaten to undermine parental and conscience rights,” the official said via email.
(+) 4. AIDS advisory council restaffed
One year after firing all members of the Presidential Advisory Council on HIV/AIDS without explanation as first reported by the Blade, Trump restaffed the advisory body with 11 new appointees.
Carl Schmid, deputy director of the AIDS Institute, and John Wiesman, secretary of health in Washington State, were named as co-chairs for the advisory council. Months later, the Department of Health & Human Services named nine additional members to PACHA from a variety of professions, including the pharmaceutical industry, activism and academia.
(-) 5. Trans military ban implemented
After the U.S. Supreme Court essentially green lighted Trump’s ban on transgender people in the military, the Defense Department implemented the policy in April.
Denying the transgender ban is, in fact, a ban, the policy prohibits anyone who has undergone gender reassignment surgery from enlisting in the military and requires anyone who identifies as transgender to serve in their biological sex (which would be a small number of transgender people.) Although transgender people who were already serving openly won an exemption, individuals who are diagnosed in the future with gender dysphoria or obtain transition-related care would be discharged.
(-) 6. Brief against trans protections under Title VII
In a brief urging the U.S. Supreme Court not to take up a case seeking clarification on whether anti-trans discrimination is a form of sex discrimination under federal law, the Trump administration asserted the U.S. Sixth Circuit Court of Appeals wrongly decided transgender people have protections under Title VII of the Civil Rights Act.
“The court of appeals’ conclusion that gender-identity discrimination categorically constitutes sex discrimination under Title VII is incorrect,” the filing says. “As discussed above, the ordinary meaning of ‘sex’ does not refer to gender identity…The court’s position effectively broadens the scope of that term beyond its ordinary meaning. Its conclusion should be rejected for that reason alone.”
(-) 7. List of anti-LGBT appointments grows
The U.S. Senate continues to confirm Trump’s appointments, many of whom have long anti-LGBT records. The latest will reportedly be former Virginia Attorney General Ken Cuccinelli, who once said homosexual acts are “against nature and are harmful to society,” for a position at the Department of Homeland Security
Other confirmations include U.S. District Judge Howard Nielson of Utah, who as an attorney argued a gay judge shouldn’t be able to decide the case against California’s Proposition 8, and U.S. District Judge Chad Readler of Ohio, who as acting assistant U.S. attorney general penned his name to briefs in favor of the transgender military ban and against LGBT protections under Title VII.
(+) 8. But a few are from the LGBT community
A handful of Trump’s appointments are from the LGBT community. Among them is former Log Cabin Republicans executive director R. Clarke Cooper, whom Trump appointed to a senior position at the State Department for political-military affairs. The Senate confirmed Cooper in April.
Other new LGBT appointments are Mary Rowland, a lesbian with ties to the LGBT group Lambda Legal whom Trump named to a federal judgeship in Illinois; and Patrick Bumatay, a gay federal prosecutor whom Trump named for a seat on the U.S. District Court for the Southern District of California. Both nominations are pending before the Senate.
(-) 9. Draconian anti-trans memo leaked
An explosive report in the New York Times last year exposed a planned memo within the Department of Health & Human Services that would effectively erase transgender people from federal law, igniting a massive outcry among transgender rights supporters.
The proposal reportedly asserts Title IX of the Education Amendments of 1972, which bars sex discrimination in schools, doesn’t apply to transgender people and calls for government agencies to adopt an explicit and uniform definition of sex “on a biological basis that is clear, grounded in science, objective and administrable.” A dispute about one’s sex, the New York Times reported, would have to be clarified using genetic testing.
(-) 10. Anti-trans ‘conscience rule’ is final
The memo as described by the Times never came to light, but months later HHS did implement an anti-trans “conscience rule” allowing health care providers to opt out of procedures over which they have religious objections, including abortions or gender reassignment surgery.
Trump announced the rule was final during a speech in the White House Rose Garden on the National Day of Prayer.
(-) 11. HHS seeks to undo trans health rule
HHS wasn’t done. Weeks after the conscience rule was final, the department announced a proposed rule seeking to undo regulations in health care against anti-trans discrimination.
The Obama-era regulations asserted Section 1557 of the Affordable Care Act, which bars sex discrimination in health care, also covers discrimination on the basis of gender identity. Under the Trump rule, HHS would disavow those protections. (The Obama-era rule was already enjoined by a federal judge.)
(-) 12. Ending visas for unmarried partners of diplomats
The State Department last year cancelled visas for the unmarried same-sex partners of diplomats to the United States.
By canceling these visas for these partners, the State Department forced these partners to either marry or get out, which complicated matters if these diplomats are from countries where same-sex marriage isn’t legal. At the time of the decision, only 25 countries recognized same-sex marriage.
(-) 13. Proposal to gut trans protections at homeless shelters
Despite assurances from Secretary of Housing & Urban Development Ben Carson LGBT non-discrimination rules for federally funded housing would remain in place, HUD has proposed a rule that would gut transgender protections at homeless shelters.
The HUD proposal would allow homeless shelters with sex-segregated facilities — such as bathrooms or shared sleeping quarters — to establish policy consistent with state and local laws in which operators consider a range of factors when determining where to place individuals looking to stay, including “religious beliefs.”
(+) 14. Trump announces HIV plan in State of the Union
Trump in his State of the Union address announced an initiative to end the HIV epidemic by 2030, asserting “remarkable progress in the fight against HIV and AIDS” in recent years.
“Scientific breakthroughs have brought a once-distant dream within reach,” Trump said. “My budget will ask Democrats and Republicans to make the needed commitment to eliminate the HIV epidemic in the United States within 10 years. We have made incredible strides. Incredible. Together, we will defeat AIDS in America and beyond.”
The plan seeks to reduce new HIV diagnoses by 75 percent within five years, and by 90 percent within 10 years. Efforts will focus on 48 counties, D.C., and San Juan, Puerto Rico and seven states where the epidemic is mostly in rural areas.
(+) 15. And the budget follows through with that request
Trump’s budget request for fiscal year 2020 made good on his pledge in the State of the Union address, seeking $300 million in new funds for domestic HIV programs.
The bulk of the $300 million figure is an additional $140 million requested for HIV prevention at the Centers for Disease Control & Prevention, which is a 19 percent increase in its overall budget from fiscal year 2019. The rest is $70 million for the Ryan White Health Care Program, $50 million for PrEP services at HRSA centers and $25 million to screen for HIV and treat Hepatitis C.
(-) 16. But NIH and global AIDS programs slashed
But the same budget sought to slash funds for the National Institutes for Health, which conducts HIV research, and global AIDS programs like PEPFAR. Moreover, the plan sought to make Medicaid a block-grant program, even though 40 percent of people with HIV rely on it. Congress ended up rejecting the cuts, fully funding NIH and global AIDS programs.
(-) 17. Giving Pete Buttigieg nickname of ‘Alfred E. Neuman’
Consistent with his track record of giving his political opponents nicknames, Trump gave an unflattering moniker to Pete Buttigieg, the gay presidential candidate with growing support in the Democratic primary.
Trump dubbed him “Alfred E. Neuman,” the Mad Magazine character famous for the phrase, “What Me Worry?” In a dog whistle that perhaps gay people could hear, Trump said, “Alfred E. Neuman cannot become president of the United States.”
(+) 18. Recognizing global initiative to end anti-gay laws
In his tweet recognizing June as Pride Month, Trump also acknowledged his global initiative to decriminalize homosexuality. Currently, same-sex relations are illegal in 71 countries.
The project is spearheaded by U.S. Ambassador to Germany Richard Grenell, the highest-ranking openly gay person in the Trump administration.
Previously, Trump seemed unaware of the project. Asked about it by reporters, Trump said, “I don’t know which report you’re talking about. We have many reports.”
(-) 19. No State Dept. recognition of Pride Month, IDAHO
In contrast to Trump, the State Department in 2019 issued no statement recognizing Pride Month, nor weeks before did it recognize the International Day Against Homophobia & Transphobia.
In 2018, Secretary of State Mike Pompeo issued statements recognizing Pride Month and IDAHO. Coming off a confirmation process in which he was criticized as homophobic, Pompeo said “too many governments continue to arrest and abuse their citizens simply for being lesbian, gay, bisexual, transgender or intersex.”
(-) 20. Refusing to recognize birthright of child to gay couple
Consistent with the policy of cracking down on immigration, the Trump administration refused to recognize the birthright citizenship of the son of U.S.-citizen Andrew Dvash-Banks and his Israeli husband Elad Dvash-Banks.
The couple had two twin boys conceived via a surrogate mother in Canada. The State Department, however, required a DNA test to prove the children were related to the couple to provide them U.S. passports. One child, Aiden, was deemed a citizen because he’s the biological son of Andrew, but the other, Ethan, wasn’t because he’s the biological son of Elad.
(-) 21. And appealed a court ruling for the couple
When the couple sued the Trump administration, a court sided with the couple in granting birthright citizenship to Ethan.
However, the State Department refused to accept the decision and appealed the ruling to the U.S. Ninth Circuit Court of Appeals, where the case remains pending. A mediation document reveals the State Department insists on its policy of “a biological relationship between a U.S. citizen parent and a child born outside the United States” to grant citizenship.
(-) 22. LGBT protections watered-down in USMCA
An initial version of the USMCA trade agreement with Canada and Mexico contained at the behest of Canadian Prime Minister Justin Trudeau language a call for countries to adopt policies “against sex-based discrimination, including on the basis of sexual orientation and gender identity.”
But Trudeau publicly buckled when asked about his commitment. After additional negotiations with the Trump administration, a footnote was added to USMCA stating Title VII in the United States, which bars discrimination on the basis of sex in the workforce, was sufficient to meet the requirements of the deal.
(-) 23. DOJ’s ‘Religious Liberty Task Force’
Before he was sacked by Trump, former U.S. Attorney General Jeff Sessions held a summit at the Justice Department on religious freedom featuring Masterpiece Cakeshop’s Jack Phillips and Catholic leaders.
At the summit, Sessions established the Religious Liberty Task Force. The goal of the task force was to ensure his memo on “religious freedom” — widely seen as guidance in support of anti-LGBT discrimination — was being implemented throughout the federal government.
(+) 24. Hailing PrEP deal with Truvada as ‘great news’
The Department of Health & Human Services reached a deal with Gilead to make PrEP available for generic production one year earlier and to secure a donation of the medication for up to 200,000 individuals each year for up to 11 years.
Trump took to Twitter to hail the agreement: “Great news today: My administration just secured a historic donation of HIV prevention drugs from Gilead to help expand access to PrEP for the uninsured and those at risk. Will help us achieve our goal of ending the HIV epidemic in America!”
(-) 25. Deleting trans employee guidance on OPM website
In a little-noticed development over the holidays, guidance on the Office of Personnel Management’s website for federal workers who are transgender was deleted without explanation.
The Obama-era guidance spelled out the definition of terms for transgender identities and expectations for respecting transgender workers. The guidance ensured transgender people could dress according to their gender identity, be addressed by their preferred gender pronouns and use restrooms and locker rooms consistent with their gender identity.
(+) 26. U.S. joins OSCE in calling for Chechnya investigation
Under the Trump administration, the United States joined 15 allied countries at the U.S. Organization for Security & Cooperation in Europe in the creation of a probe to investigate alleged anti-gay human rights abuses in Chechnya.
The report concluded, as the United States and human rights organizations long believed, Chechen government officials engaged in human rights violations, including “harassment and persecution, arbitrary or unlawful arrests or detentions, torture, enforced disappearances and extrajudicial executions.” Victims were LGBT people, human rights defenders, journalists and members of civil society.
(-) 27. But U.S. didn’t sign U.N. statement against atrocities
Months later, the United States was nowhere to be found on a United Nations statement signed by more than 30 countries calling for a thorough investigation of the Chechnya atrocities. The State Department said the United States didn’t sign because it withdrew from the U.N. Human Rights Council “and no longer participates in its sessions.”
(-) 28. State Department proposes ‘natural law’ commission
LGBT rights supporters are viewing with skepticism a State Department proposal to create a “natural law” commission, which is set to “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”
The term “natural law” has been used to express condemnation of LGBT identities in religious discourse.
(-) 29. Eliminating LGBT youth data question in foster care
The Trump administration has proposed eliminating requirements for case workers to ask LGBT youth in foster care about their sexual orientation of youth for data collection purposes.
Although the Department of Health & Human Services concluded it was “intrusive and worrisome,” LGBT rights advocates say the questions are necessary to ascertain disparities facing LGBT youth in the foster care and adoption systems.
(-) 30. Trump stands with anti-LGBT adoption agencies
In a speech at the National Prayer Breakfast, Trump expressed solidarity with religious-affiliated adoption agencies, who are bristling over LGBT non-discrimination requirements to obtain federal funding.
“My administration is working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families while following their deeply held beliefs,” Trump said.
(-) 31. And defends Karen Pence teaching at anti-LGBT school
In the same speech, Trump also defended second lady Karen Pence for her decision to teach art at a Christian school in Virginia, which has a policy against employing LGBT teachers or admitting LGBT students.
“She just went back to teaching art classes at a Christian school,” Trump said, “Terrific woman.”
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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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