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Dan Baer: Time for U.S. to change its relationship with Saudi Arabia

Obama foreign policy expert runs for U.S. Senate in Colorado

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Daniel Baer, State Department, Organization for Security and Cooperation in Europe, gay news, Washington Blade
Daniel Baer, United States Department of State, Bureau of Democracy, Human Rights and Labor, gay news, Washington Blade
Gay former U.S. ambassador Daniel Baer is running for U.S. Senate in Colorado. (Washington Blade file photo by Michael Key).

Daniel Baer, a former U.S. ambassador during the Obama administration who is now vying to become the first openly gay man elected to the U.S. Senate, said the time has come for the United States to change its relationship with Saudi Arabia.

In an interview Monday with the Washington Blade, Baer said the change he envisions is “hard to describe” in a single paragraph, but made clear Saudi Arabia, despite its longtime alliance with the United States in military affairs, is “not an ally” and must change regardless of the administration that is in power.

“We have security interests across the region, and we need to have a more robust and accountable bilateral relationship,” Baer said. “That doesn’t give Saudi Arabia a special position that they don’t merit. It’s not that we should be looking for some way to be more aggressive or more confrontational with them. It’s just that Saudi Arabia does not merit — they are not an ally, they don’t share our values.”

Previously, Baer served as deputy assistant secretary for the Bureau of Democracy, Human Rights & Labor under Hillary Clinton when she was secretary of state, then became U.S. ambassador to the Organization for Security & Cooperation in Europe.

Baer spoke with the Blade shortly after winning the endorsement of the LGBTQ Victory Fund, an organization that focuses on electing LGBT people to political office, and reporting an impressive haul of $1.35 million in fundraising for second-quarter 2019 in his bid to represent Colorado in the U.S. Senate.

Criticizing the Trump administration for using LGBT people and minority groups as “fodder for the president’s populism,” Baer took particular issue with the transgender military ban and new regulations allowing medical practitioners to deny health care to transgender people in the name of religious freedom.

Baer was also skeptical of President Trump’s global initiative to decriminalize homosexuality and recalled former President Obama and Secretary of State Hillary Clinton beat him to the punch in pursuing initiatives in favor of international LGBT rights.

“I helped write the original policy of the United States government that we would advocate a move to drive our programs and our policy to achieve decriminalization worldwide back in 2011, I mean, imitation is the sincerest form of flattery but coming from this administration, those words ring hollow,” Baer said,

Bear was also critical of the new State Department commission on “natural law” established by Secretary of State Mike Pompeo.

“I think it’s obviously an attempt for this administration to pick and choose which aspects of human rights they want to stand behind,” Baer said. “I think it’s incredibly disturbing, that it looks like this is an attempt to redefine what are universal rights, that are not only the foundation of our constitutional system, but that are now codified in international law thanks in large part to the efforts to the United States and our allies to accomplish that in the wake of World War II.”

Read the full interview below:

Washington Blade: Given your expertise in foreign policy, how much will international affairs animate your campaign and career in the Senate?

Daniel Baer: Well, a couple things. One, when I talk to people around the state of Colorado, obviously, the issues that come up more than any specific policy issue is actually an issue of values, which is that people don’t want to live in a society that has the kind of open advocacy for hatred and division that we see emanating from the White House.

And so, I think a lot of people out there are people like me, who are motivated by our concern in this moment for our communities and our states that motivates us to get involved in new ways, and that’s the primary kind of overarching concern. Obviously, when we talk about issues that most of us care most about are the ones that hit us close to home, to the kitchen table.

That said, the conventional wisdom that is that voters don’t care about foreign policy. I found that that both underestimates the degree to which voters understand and are engaged with issues and their level of interest. Everywhere I go — rural areas, urban areas, – people understand that the issues that we care most about here in Colorado have a[n] international dimension, whether that is the economy, they understand trade and tariffs are something that impact jobs and the prices of agricultural goods here in Colorado. So, they understand that has an international dimension. 

A lot of people obviously focus on climate change and the existential threat that it poses. We understand that it’s not just a local action that has to be used to take on that threat, but also national and international action. So, issue by issue, education, even people understand that this is about preparing young people to be able to have a shot at a middle class life in a 21st century economy, and they understand the 21st century economy is a global one, so people understand that international affairs matters.

So from that standpoint, I think foreign policy doesn’t get talked about on the campaign trail. And I think, more broadly, one of the things that is resonating, that people ask most about is who can best beat Cory Gardner, and there, I think we saw in 2018 a number of people who you probably have encouraged at some point in your reporting, but a number of people who were people like me how to record public service, particularly on foreign and national security, but had never held elected office, or enormously successful at flipping swing seats.

So Elissa Slotkin in Michigan, Jason Crowe here in Colorado, Tom Malinowski in New Jersey, Abigail Spanberger in Virginia, Chrissy Houlahan in Pennsylvania, and I could go on. A bunch of those 40 seats that we flipped, and particularly those that were in swing districts were seats that were flipped by people who look somewhat like me, and in terms of our background.

And I think that’s partly because people want fresh voices, and they’re sick of career politicians, and partly because when you have a background in national security or foreign policy, you are positioned well to make the argument to swing voters, independents and disaffected moderate Republicans, that you understand that we’re all in this together, and that we have to get through this moment that we’re living through together, and that you’re committed to representing the whole. 

Obviously, when I was ambassador, I represented all 330 million Americans, not just those who voted for President Obama. And I think that’s the kind of candidacy that I offer here in Colorado, and one that is a winning background to take on a career politician like Cory Gardner.

Blade: But in terms of LGBT issues, where do you want to go?

Baer: I guess in terms of LGBT issues, I feel like the strongest argument for one of the cases that I have to make with fellow members of the LGBT community is that I just don’t just happen to be part of that community, but I’ve also, throughout my career, spent time on issues that affect our community directly.

Obviously, the work that I did at the State Department that you covered, including helping Secretary Clinton write her landmark speech and working out programs and diplomacy in a variety of countries around the world to help move towards decriminalization or keeping LGBT activists safe from harm.

That’s a meaningful, meaningful part of my background to me professionally and is meaningful to me personally, as well. And I think, going forward, certainly, if elected, I would want to be one of the co-sponsors of the Equality Act and I would want to deliver appropriate oversight of the Pentagon in reversing the ban on transgender troops that Trump has reinstated.

I’m committed to continuing to be somebody who advocates for the dignity of all Americans and all people driving that through policy.

Blade: What bothers you the most about how the Trump administration has handled LGBT rights?

Baer: I guess what bothers me the most is when you look at the way that they have – it’s not systematic, it’s knee-jerk, and — but it is across — you know, it’s not just the trans troop ban. It’s also the way that they’ve moved to exclude LGBT people from healthcare. It’s also the rhetoric of the president.

And, you know, I think what bothers me the most is that LGBT people like other people who are members of minority groups have found themselves as fodder for the president’s populism. We’re being used by him and his administration to fire up a base to distract from the real problems that face the United States and the world. And so, we’re being used as a means rather than end and that’s, that’s disgusting and disappointing.

Blade: But in his tweet, recognizing June as LGBT Pride Month, President Trump recognized a global initiative within his administration to decriminalize homosexuality. What do you make of that initiative?

Baer: I helped write the original policy of the United States government that we would advocate a move to drive our programs and our policy to achieve decriminalization worldwide back in 2011. I mean, imitation is the sincerest form of flattery but coming from this administration, those words ring hollow.

I helped write President Obama’s presidential memorandum that came out on the same day as Secretary Clinton’s historic speech in Geneva, that outlined decriminalization as a priority of the United States government and charged all U.S. agencies engaged in work overseas with making that part of their work.

Blade: The person who is leading the charge on this for the Trump administration is Ric Grenell, who is U.S. Ambassador to Germany, and also considered the highest-ranking openly gay person in the Trump administration. What would be your advice to Ambassador Grenell?

Baer: Oh, I don’t have advice for Ambassador Grenell. I don’t know him. Obviously, I wish anybody who’s representing our country overseas well in faithfully requiting the duties of their office. 

I heard — I’ve seen reported that he’s been facing some real headwinds from inside the State Department and that Secretary Pompeo may be undermining him particularly in his work on LGBT issues.

It must be really humiliating or difficult to be in a position where you’re representing the country overseas, and you’re not sure if you have the backing of folks back home. And, you know, I wish Ambassador Grenell well in doing a job to the best of his ability. I don’t know him personally and I think he’s in a difficult position, as are many U.S. ambassadors who represent this administration right now.

Blade: Also at the State Department, there was news very recently that they would establish a commission on “natural law.” Are you aware of this commission and what do you make of it?

Baer: Yeah. I am aware of it. I think it’s obviously an attempt for this administration to pick and choose which aspects of human rights they want to stand behind. I think it’s incredibly disturbing, that it looks like this is an attempt to redefine what are universal rights, that are not only the foundation of our constitutional system, but that are now codified in international law thanks in large part to the efforts of the United States and our allies to accomplish that in the wake of World War II.

And the idea that an American government would be seeking to redefine universal human rights, and in a way that it would exclude consideration of large numbers of people is incredibly disturbing. And It must be — in addition to being disturbing, flies in the face of the idea of the universal commitment to the dignity of every person. 

It should also be incredibly, incredibly demoralizing to the Bureau of Democracy, Human Rights & Labor in which I was a deputy assistant secretary, which already is the institutional structure charged with advancing human rights in our diplomacy. And so, the idea that they’re creating this kind of council that sits in the secretary’s office or the policy planning office instead of relying on the career professionals and experts who make up the Bureau of Democracy, Human Rights & Labor is another case of the Trump administration, doing damage to and undermining and insulting the career professionals who make up our State Department.

Blade: How significant do you think it is that the State Department barred U.S. embassies from flying the rainbow Pride flag on official flagpoles?

Baer: I mean, I think more significant was the number of employees who defied that order.

We’ve come a long way. You know, I helped Secretary Clinton write the cable that she sent to all ambassadors actually, a year before she gave her her famous speech…In her first year as secretary she sent a cable out to every U.S. ambassador around the world and said, gay people, LGBT people are part of our human rights work. And you should treat the human rights of LGBT people as you would any other human rights issue and this is now part of your portfolio. 

I think there was a period of enormous transformation in the work of the U.S. government during the Obama administration, in terms of our engagement and our diplomacy that human rights was human rights for everyone.

And I think it’s petty and silly that Secretary Pompeo sought fit to bar U.S. embassies from flying a flag that is nothing more than a way of communicating our ongoing commitment to the dignity of all persons during the month in which we celebrate that. I think that’s silly and petty and I think it’s more significant that a number of embassies chose to ignore that instruction, because they understood the significance to people who frankly live in a lot more fear and insecurity than at least some LGBT people in this country.

Obviously, we’ve seen a rash of killings of trans women of color in this country in the last few months, too. So there’s plenty of work left to do. But there are also places around the world where the United States embassy flying that flag is a sign of our standing with people who are vulnerable, and I think we should always be willing to do that.

Blade: I’d like to shift to some non-LGBT foreign policy issues. Generally speaking, how would you evaluate how the Trump administration has handled national security incidents in North Korea and Iran?

Baer: I think across the board, what we see in the Trump administration’s handling of what conventionally would be called foreign policy issues is that they are all reflex and no brain. 

So it’s very hard to define a Trump foreign policy because it doesn’t seem to be consistent. It seems to be a series of one-off actions that make the world more chaotic, but aren’t clear what objectives they’re they’re seeking to achieve. 

So, you know, I mean, I think the president’s love affair with North Korea and with Kim Jong Un is not something that makes us safer. It hasn’t reduced the risk posed by the North Korea nuclear program. It probably has reduced the leverage that the United States has to address that risk, and in that sense, it has made America less safe.

What the president has done vis-a-vis Iran, throwing out the Iran deal, and then talking tough about negotiating, and then conceding on all the tough requirements, before we would sit down and negotiate hasn’t made America look strong. It’s made us look weak and alienated allies that we need in order to help us make sure that we are addressing the multiple challenges to national security that emanate from Iran, including not just the nuclear program, but obviously, international terrorism as well.

So, you know, I think the consistent theme here is that you’ve got a series of actions without a clear strategy behind them. And that’s incredibly unnerving, because the world is a difficult and dangerous place, and the United States needs not only to protect the American people from the threats that we face around the world, but also to be leading in helping to address global threats that cannot be solved by any one country alone.

The vacuum of U.S. leadership in the world is something that makes all of us, not only Americans, but also others around the world less safe. 

Blade: But regardless of the administration that is in power, is it time for the United States to change its relationship with Saudi Arabia?

Baer: Yes.

I think one of the things that will go down when we look back at this period, and certainly as somebody who’s running for the U.S. Senate right now and look at the leadership that [Sen.] Chris Murphy demonstrated in calling attention to the war in Yemen, and he has demonstrated that leadership for several years, and he has built a growing chorus of voices in both the House and the Senate that recognize the role that Saudi Arabia has played in that war, and the role that the United States-Saudi Arabia plays.

To say that our relationship with Saudi Arabia should change is not to say that we don’t — we shouldn’t have one. We need to. We have relationships with difficult actors around the world. But I think certainly the relationship that the Trump administration has sought is not one that has delivered benefits for either human rights and human security in the region, or for American security interests around the world.

Blade: What would this change look like?

Baer: It’s hard to describe a bilateral relationship in a single sentence or paragraph. I mean, I think the change in the relationship shouldn’t be change for change’s sake. The change in the relationship should be driven by our recognition that one of the lessons over the last decade is that authoritarian regimes are only stable until they’re not, and the United States has long-term interests in a stable region.

We have security interests across the region, And we need to have a more robust and accountable bilateral relationship. That doesn’t give Saudi Arabia a special position that they don’t merit. It’s not that we should be looking for some way to be more aggressive or more confrontational with them. It’s just that Saudi Arabia does not merit — they are not an ally, they don’t share our values. 

They are a partner in certain regional security issues, and we should be clear-eyed about that, but they don’t get special treatment. And we should treat them with the same focus on our long-term security interest that we would treat other countries.

Blade: One more question about foreign policy: It seems that the Trump administration leadership on these issues is being taken up by Ivanka Trump and Jared Kushner. How concerned are you about that?

Baer: On a scale of one to [laughs]? Look, I’m very concerned. Neither Ivanka Trump nor Jared Kushner has the expertise or experience to be able to be trusted to fulfill those roles skillfully and in the best interest of the American people. That’s why I’m concerned just from a quality standpoint. 

But I’m also concerned with the message it sends. This is a republic, not a monarchy. People should be selected for carrying out the most important foreign policy work of the most powerful country in the world based on their experience and skill at doing those jobs.

These are two people who have clearly been selected because of their relationship to the president of the United States, and that is a bad basis for selecting people. It’s not meritocratic, and it’s unlikely to serve the American people well, and the message that it sends around the world about who America is and what we stand for, and the quality of people that we charge with these jobs is a terrible one.

And by the way, I am somebody who having worked in the federal government for years, has enormous respect for the deep well of expertise that our federal workforce, the career diplomats, the career civil servants. That work is not only in the State Department, but in other parts of the federal government…There are world-class experts in every office that is staffed by career diplomats and civil servants.

It’s not that we couldn’t find anybody better. The president of the United States is too insecure to actually put career professionals in charge of things that career professionals should be in charge of or that serious well-respected experts should be in charge of.

Blade: Getting back to your own race, how significant do you think it would be if you were to become the first openly gay man elected to the U.S. Senate?

Baer: Look, I don’t think it’s a qualification per se, and obviously I’m running based on my record of public service and because I believe I am the most qualified candidate and because I believe I can beat Cory Gardner.

But I think, there’s no question that for me, as somebody who grew up in the Colorado that had Amendment 2 passed. I was 15 when that happened at the age when you start to think about what am I going to make of my life, and the answer that was in front of me was that the majority of people in my community had voted for an amendment to the state constitution that made it illegal to protect the civil rights of people like me. Obviously, I wasn’t out at that point, but I had sense that I might be different from other folks, and I can remember the weight of that election night when Amendment 2 passed. 

I know from my own life that having examples of people who live happy, public successful lives is really important to being able to dream their own daydreams. And so, I think while it’s not necessarily, certainly not the first reason I hope people vote for me — I hope people vote for me because they know I would do a good job at being a U.S. senator — I do think that the significance of representation shouldn’t be understated, particularly for those who have wondered whether they can live happy lives that fulfill their dreams. 

And I think I stand on the shoulders of those who came before me and have advocated for the changes in our politics that made my life so far possible that would certainly deserve credit for making it possible for there to be an openly gay man elected to the U.S. Senate for the first time in history.

Blade: I have another question for you about the 2020 election in terms of the presidential race. Will you support either Gov. Hickenlooper or Sen. Bennett?

Baer: Both Gov. Hickenlooper and Sen. Bennett are friends, and I’m excited by both of them as well as a number of others, and, you know, I understand that for a candidate it can sound like a cop-out to not give an answer on whom I’m supporting, but I think, like a lot of Americans watching the debates closely, inspired by the number of people who are running for office right now, running for president right now in different ways.

And I think they bring different things to the table and the main feeling that I have in looking at our contenders on the Democratic side is gratitude and awe for the deep bench that we have and the enormous amount of talent that we have that we bring to the table. And so, I’m continuing to cheer on a number of folks who inspired me, including Gov. Hickenlooper and Sen. Bennett.

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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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