Nine years ago, gay Army veteran Rob Smith chained himself to the White House fence, protesting “Don’t Ask, Don’t Tell.”
But last week, Smith stood before hundreds of MAGA hat-wearing Donald Trump supporters in D.C. and lamented more young people weren’t joining the conservative movement. In a speech to the Turning Point USA summit, he hammered the need to re-elect President Trump.
“I don’t like the fact that I lost all my gay friends in New York City when I came out as a conservative,” Smith told the Washington Blade. “I don’t like the fact that I lost the rest of my gay friends when I came out as a Trump supporter. I don’t like it. It doesn’t make me feel good, you know, but I can’t tell these kids not to stand up for what they believe and not practice what I preach.”
Smith isn’t alone. In Trump’s America, he’s among the emerging gay voices in the world of conservative political commentary, whether it be Twitter, YouTube or podcasts.
Want to read the latest from these gay political commentators? Open up the conservative Washington Examiner. Among the columnists is Eddie Scarry, a gay protege of conservative media queen Ann Coulter, and Brad Polumbo, a Zillenial writer who boasts a 4.0 GPA from the University of Massachusetts, Amherst where he joined Young Americans for Liberty.
Smith didn’t shy away from his sexual orientation on stage at the summit, where he said he was gay during his speech and referenced his husband. For the attendees, many of whom wore MAGA hats and frat attire consisting of a sport coat, khakis and top-siders, it didn’t seem to matter.
When Smith was on stage, they lined up to ask questions about being a youth in the conservative movement. Topics included Big Tech’s alleged censorship of conservatives on social media, teacher hostility to conservative viewpoints and whether it’s possible to be in a relationship with someone who has opposing political views. After Smith was done, attendees continued to mob him to snap group selfies and offer words of support and solidarity.
Speaking with the Washington Blade at the summit after his remarks, Smith said his sexual orientation at conservative events has “never really been a thing.”
Any concerns, Smith said, are generally quickly resolved because he says people in the conservative movement “are unafraid to offend you by asking questions.”
“So sometimes I do get questions,” Smith said. “They’re like, ‘I’m a conservative Christian, but I support you as a gay person, but my beliefs are differently, how do I reconcile those two things?’ And then I would just say, ‘You really lead from love, you lead from the fact that we all have the same fundamental values, like we’re all here for the same reason, we just have a different sexual orientation, different skin colors, different religions, different whatever.’”
Of course, the conservative movement isn’t exactly known for accepting LGBT people. In fact, conservative forces have long opposed LGBT equality — whether it be marriage, assurances of non-discrimination in employment or military service — let alone offered LGBT voices a platform to speak.
The welcoming attitude, Smith said, is a direct consequence of social media, which he said has enabled gay people with conservative viewpoints to become more vocal and visible. And yet, Smith also said he sees a “societal change,” which constitutes a more accepting attitude from Millennials and Gen-Z conservatives toward gay people than older conservatives.
“We ascribe so many things to like, the government needs to change all of this stuff, and this needs to happen,” Smith said. “Change does not start from the top down, it starts from the bottom up.”
Another gay conservative commentator is Guy Benson of Fox News Radio, where he works as a contributor and hosts a daily radio show/podcast. Neither Trump nor Democrats escape the barbs of his commentary, which, Benson told the Blade, demonstrates he’s “not a MAGA-hat wearing Trump supporter by any stretch of the imagination.”
Speaking with the Blade at the Turning Point USA conference after his speech, Benson said there’s a new environment in the conservative movement for gay people.
“I think that it’s a changing society, and I think I recognize that younger conservatives, in particular, have very different views on some of these than older generations,” Benson said.
Benson pointed to data from the Pew Research Center that found growth over time among Republicans who support same-sex marriage. (There has been growth, but still a minority of conservatives support gay nuptials. In 2019, 44 percent of Republicans said they support same-sex marriage compared to 23 percent in 2001.)
“So, there has been a sea change,” Benson said. “And I think there’s a recognition that politics is sort of an addition and multiplication game. It’s a coalitional game. And it’s more about ideas, or at least I hope it’s more about ideas than identity.”
Charlie Kirk, a 25-year-old rising star in the conservative movement and founder of Turning Point USA, said via email to the Blade gay people with conservative ideology are more than welcome in the movement.
“This generation of conservatives is marked by increasingly diverse and charismatic voices like Guy and Rob, who love their country and value timeless conservative ideas like small government, freedom of speech and individual responsibility,” Kirk said. “We celebrate patriots like these regardless of whether they’re gay or straight, black or white, male or female, rich or poor, tall or short. We’re so grateful for their leadership and for inspiring so many others in their own journeys in what has really become an all new conservative movement.”
It should be noted Turning Point USA faces accusations of racism, despite employing black conservatives like Smith and “Blexit” leader Candace Owens, in addition to objections to churning out an army of youth in support of Trump.
To be sure, large swaths of the conservative movement are still vocally opposed to LGBT rights and to promoting LGBT people to positions of visibility within the movement. Just last week, a failed U.S. Senate candidate in California announced a “Straight Pride” event to celebrate “whiteness” and “heterosexuality” as the Family Research Council President Tony Perkins hailed a new State Department commission widely seen as hostile to LGBT rights.
The path for the emergence of these gay conservatives takes different forms. Benson has long been a conservative, but came out as gay in 2015 on a Fox News during an interview with Megyn Kelly. Smith went in the opposite direction, starting as an openly gay progressive who voted for Bernie Sanders in the 2016 Democratic primary, then becoming a conservative, then becoming a Trump supporter.
But Smith’s voice as a gay conservative is especially unique because years ago he was not just a progressive, but an activist with the now defunct LGBT grassroots group GetEQUAL opposing “Don’t Ask, Don’t Tell.”
These days, Smith doesn’t talk much publicly about when not even the Democratic Party was supportive enough of LGBT rights to pass muster for him. On that cold November day in 2010, he was arrested protesting outside the White House where President Barack Obama was in charge.
Giving voice to the “Don’t Ask, Don’t Tell” repeal effort as a gay Army veteran who served in Iraq and Kuwait, Smith was among 13 activists who in protest of the military’s gay ban chained themselves to the White House fence. For the act of civil disobedience, Smith and others were subsequently arrested.
Joining Smith at the time was former Lt. Dan Choi, who gained notoriety for being the first activist to chain himself to the White House fence in an effort to encourage then-President Obama to end the discharges under “Don’t Ask, Don’t Tell.” To Smith’s immediate left was Autumn Sandeen, a San Diego-based transgender activist and Navy veteran, to his immediate right was longtime gay military activist Michael Bedwell.
After Choi became the first activist to chain himself to the White House fence in 2010, Smith penned an op-ed for the Huffington Post saying more activism like Choi’s was needed.
“I think what we needed was to see something like this to light a fire under each and every one of us that cares as deeply as he does about ‘Don’t Ask, Don’t Tell’ repeal, and about full equality in general,” Smith wrote. “This movement needs him as much as it needs me, or Jarrod Chlapowski, or Lt. Col Victor Fehrenbach, or any of the other gay veterans who share our past of silent service knowing that it reflects the present of thousands of gay soldiers currently serving.”
Although times have changed, Smith said he looks back on his days as an LGBT rights activist with no regrets and said that work helped him reach where he is now.
“When I look back at that now, and when I look back at standing up for LGBT soldiers, and doing all the things that I did at the White House, I look back on it fondly,” Smith said. “And I’m proud of every single thing that I did. And when I look back on that all of that stuff really did inform the change to conservatism that I’ve had over their past few years.”
Smith said the experience of being with GetEQUAL helped him “see how organizations work,” which is why he’s “so critical of a lot of things that are going on in not just in the transgender ideology, [but] very critical about things that are going on in the LGBT movement in general.”
“There was a moment when ‘Don’t Ask, Don’t Tell’ repeal happened and marriage equality happened, there was this whole moment where people didn’t know where we were going to go, because fundamentally, the rights for the gays and lesbians have more or less been achieved,” Smith said. “And those were two really big things, right? And so I think that the embrace of a lot of the nuttiness that that’s going on in the name of the LGBT nowadays is motivated not by a genuine desire to help people, but by a desire to keep that sort of money train coming.”
As an example, Smith took particular issue with the Human Rights Campaign deciding to endorse Hillary Clinton in 2016 — even before the Democratic primary with Bernie Sanders had yet to conclude.
“That wasn’t about the people; it was about Chad Griffin,” Smith said. “That was about the people that were on the boards of these things, trying to put access to power. And what I hate the most, is that they use young LGBT people, and they’re using young LGBT people of color to push these leftist messages out, and they’ll put their faces all over the place, and they’ll send them out to interviews and all that stuff. And these people are still not represented on the boards, they’re still not represented in leadership positions.”
But at least one of his fellow activists from that time doesn’t see it that way, especially when policies like Trump’s transgender military ban are still on the books.
Robin McGehee, who served as co-chair of GetEQUAL and was another of the 13 activists arrested at the White House, criticized Smith for his political transformation from an LGBT activist into a Trump supporter.
“Although I deeply believe in the personal freedom of choosing your political positions and candidates, that does not mean I am not saddened by Smith’s desire to support a person and party that clearly discriminates, promotes classism, sexism, homo/transphobia and operates in a fashion that is demeaning to the liberty and justice for all that Rob helped protect and promote fighting as a solider for our country, on and off the battlefield,” McGehee said.
McGehee took particular issue with Smith supporting an administration that enacted a transgender military ban, which she said is “damaging to the same soldiers he took the fence with who defended his right to serve openly as a gay man.”
“His desire to support a president and an administration that would so clearly discriminate against transgender service members seems self-centered, but for that — disappointingly — he has picked the right candidate and party,” McGehee said.
In terms of rhetoric, there may well be a changing environment that has enabled gay conservatives to emerge under the Trump administration, which despite its anti-LGBT record has embraced some symbols of LGBT rights.
On one hand, Trump recognized Pride month in a Tweet and a global initiative to decriminalize homosexuality in the more than 70 countries where it remains illegal. Per White House counselor Kellyanne Conway, Trump was the first president to enter into the White House “approving of gay marriage.”
On the other hand, Trump has presided over anti-LGBT administration in terms of policy, mostly in terms of attacks on the transgender community. Among his administration’s initiatives are a transgender military ban and disavowing protections for transgender workers under federal Title VII of the Civil Rights Act of 1964. (But the Trump administration also has argued federal civil rights law doesn’t apply to gay people.)
As part of this schizophrenia, there’s a perception the Trump administration has approached gay people and transgender people differently, which is also reflected in the conservative movement. We may be living in a post-gay world, but we’re not living in a post-trans world.
Benson recognized an “addition and multiplication game” within the conservative movement to reach out to gay people, but said that isn’t the case with transgender people.
“That’s a trickier piece at the moment,” Benson said. “I think there’s a lot of people who don’t understand transgenderism. I think there’s a lot of people who are just wrapping their brains around same-sex marriage for the first time. And now, they feel like there’s this new frontier that is, you know, aggressive and challenging biological sex and all these sorts of things.”
Despite the inclusive approach of the LGBT movement, many gay conservatives themselves see a distinction between the fight for gay rights and transgender rights. Among them is Smith, who said he sees a distinction between the “L” and the “G” in the LGBT movement and the other letters.
“There’s so much confusion about all the other letters, because they are confused about who they are, what they want, what the goals are, what constitutes this, what constitutes that,” Smith said. “They’re confused. There are a lot of people that are literally making these things up as they go along. So they’re confused. They’re confusing each other. And they’re confusing everybody else.”
Smith said he faces constant accusations he’s transphobic, but denied that was the case and said instead he’s “shamelessly gender critical.”
“I’m shamelessly critical of some of the roads that transgender ideology is going down to when it comes to invasive medical intervention for kids and teenagers, when it comes to silencing the voices of women, of lesbians, silencing lesbian icons like Martina Navratilova,” Smith said, “Or silencing lesbians like Julia Beck, or silencing anybody who dares to stand up against what I like to call super-radical transgender ideology.”
It’s that kind of thought Smith said informs his opposition to the Equality Act, LGBT rights legislation that would enact long sought-after federal LGBT non-discrimination protections into law. (The White House has said Trump opposes the legislation based on unspecified “poison pill” amendments in the bill.)
Smith said he shares that view on the Equality Act because he wants to ensure women (“not people that identify as a woman or I feel like a woman today — like I think about the actual women”) have access to sex-segregated spaces, like restrooms and lesbian bars. (Transgender advocates would call the exclusion of transgender women from these spaces discrimination.)
“Now there is a form of legislation that I think conservatives and liberals and Democrats can probably come together on, that protects LGBT people and still keeps women with the rights that they have fought so hard for,” Smith said. “But you don’t, I’m not asking them to give up their rights, so that the LGBTQI or whatever can can get whatever rights that they want.”
On the Equality Act, Benson said he wasn’t familiar with the legislation, but said some kind of legislation “to add some just very basic protections that exists for other groups should exist for LGBT people as well.”
At the same time, Benson also said a religious exemption within such legislation would be “very important.”
“I think that we should be able to coexist in a way that people are protected and not discriminated against because of who they are, and then people aren’t trampled on, if they are religious dissenters,” Benson said. “I know that that’s a tricky needle to thread, but that’s one of my goals is fostering the type of culture and the type of country where we can exist side by side.”
If gays and lesbians have largely escaped the wrath of Trump’s rhetoric, other minority groups, such as immigrants and Muslims, aren’t so lucky.
Most recently, that has become evident with Trump’s tweet telling four Democratic congresswomen — who are also people of color — to “go back” to their home countries. At a subsequent rally, Trump supporters chanted “send her back” in reference to one of the four, Rep. Ilhan Omar (D-Minn.), who’s a Somalian immigrant, but a U.S. citizen. As backlash ensued, Trump disavowed the chant the next day.
(Over the weekend, Trump rekindled this racist rhetoric when he criticized Rep. Elijah Cummings (D-Md.), asserting his congressional district in West Baltimore “is a disgusting, rat and rodent infested mess.” When civil rights leader Al Sharpton came to Cummings’ defense, Trump subsequently tweeted Sharpton “hates whites & cops.”)
Smith, however, said those comments “didn’t offend me” because people speaking freely is what the conservative movement is about.
“I feel empowered as a conservative because I don’t have to like run around being offended by every little thing,” Smith said. “I don’t get empowerment by being offended. I don’t get empowerment by being a victim.”
Smith sought to redirect the indignation, pointing out Rep. Rashida Tlaib (D-Mich.), another one of the four congresswomen Trump told to “go home” appeared on stage with Omar Suleiman, a Muslim leader who has expressed views being gay is contrary to his religion.
“Who’s going to call Rashida Tlaib out for sharing the stage with a homophobic imam at a CARE fundraiser?” Smith said. “And this homophobic imam, Omar Suleiman, said that homosexuality is a disease that needs to be cured and compared it to bestiality and incest, right? So, we can’t wait to waive the smelling salts and clutch the pearls and do all of this stuff when Trump says something…Why is nobody calling her out for sharing the stage with a homophobe, right?”
Smith took both the Human Rights Campaign and the LGBT media watchdog GLAAD to task for refusing to criticize Tlaib, an American citizen and native of Palestinian descent.
“Where’s HRC?” Smith said. “Like, why are they not doing that? Because they know that they would be attacked for attacking a congresswoman of color. Where is GLAAD calling her out for that? She never should have shared the stage with that person.”
It should be noted Tlaib has supported LGBT rights as a member of Congress. The Michigan Democrat is a co-sponsor of the Equality Act and has supported the transgender community, including by displaying a blue-and-purple transgender flag outside her office.
Benson, however, took a different approach and said that rhetoric from Trump wasn’t appropriate, pointing out he had criticized it on Twitter.
“I was very critical of it from the very beginning,” Benson said. “I think that that’s the type of tweet where, you know, I said to the kids today, I feel like we don’t have to defend every single thing the president says or does or tweets, just because he’s the leader of the party and the team that you have identified with.”
Benson expressed particular concern with the “send her back” chant at the Trump rally.
“I have all sorts of problems with Ilhan Omar, and I write and talk about them all the time,” Benson said. “And she’s a U.S. citizen, so ‘send her back’ has this sort of nativist ugly — It’s not even an undertone, right? It’s just out there, and I think that’s really bad.”
Asked whether he felt any special concern over the remarks as a gay man in sense of a solidarity with other minority groups, Benson said, “I didn’t think of it that way. It gave me pause as an American.”
“It did not occur to me like, ‘Oh, I’m relating to her because I’m a member of a minority group,’” Benson said. “It was just like, as someone who believes in this country as an idea, and what we should be about. It was offensive. Just straight up on its — on its own merits, not like in any sort of other context for me.”
It seems gay conservatives writ-large aren’t as concerned with Trump’s racist tweets as they are pleased with his policies and attempts at LGBT outreach.
Charles Moran, a spokesperson for Log Cabin Republicans, talked about Trump’s HIV and global LGBT initiative when asked whether his organization would denounce his “go back” tweets.
“President Trump’s leadership to end the spread of HIV/AIDS in 10 years as well as the initiative to end the criminalization of homosexuality internationally is a strong signal of commitment to the LGBTQ community,” Moran said. “Coupled with a roaring economy and a focus on improving the lives of the average American worker, I think it’s safe to say that gay conservatives and Log Cabin Republican members are still quite pleased with their support of President Trump and are unwavering in their support.”
With the left having a reputation for shunning those who disagree with their political views, especially dissenters who are members of minority groups, can these gay conservatives find romance? They say they’re making it work.
Benson, who’s engaged to marry his boyfriend later this year, denied having any sort of tension with his soon-to-be spouse over politics.
“He’s not terribly political, so I’d say he’s right-leaning,” Benson said. “His parents are definitely Republicans, but he doesn’t really care that much about politics. Like when we get home, he’s not eager to watch the Mueller testimony, he’s eager to watch HGTV. That’s the kind of vibe that we got going on.”
Smith, who mentioned on stage at the Turning Point USA summit his spouse doesn’t share his views, said his husband “loves me, he doesn’t love a political ideology.”
“He doesn’t love Rob Smith with fucking 125,000 followers on social media,” Smith said. “He loves me, and we connect to our love for each other, and politics is not a huge thing in our relationship. I don’t even talk about politics that much at home because this is what I do. It’s what I talk about all day.”
But will these new gay conservative voices have any effect on the LGBT electorate in 2020? In years past, exit polls have shown LGBT people comprise a sizable chunk of around 5 percent of the electorate and have overwhelmingly supported Democrats. (In 2016, LGBT voters opposed Trump in support of Hillary Clinton by a whopping margin of 78 to 14 to percent.)
Based on voting trends — as well as criticism of Trump within the LGBT community — Benson wasn’t terribly optimistic about newfound gay support for conservatives in the 2020 election, saying he imagines Trump will “not get a huge percentage of the LGBT vote.”
“I think that some of the objections are legitimate,” Benson said. “[But] I think there are actual signs of progress that the president himself and some of the top people in his administration have spearheaded that have gotten scant attention or are sort of sneered at as unimportant.”
Benson counted among these signs the standing ovation Peter Thiel received after saying he’s gay on stage at the 2016 Republican National Convention and Trump’s appointment of Richard Grenell as an openly gay U.S. ambassador to Germany, which Benson called “an extremely important position.”
“I think it’s quite good that the ambassador has been tasked with a U.S.-led initiative to combat the criminalization of homosexuality around the world,” Benson added. “I think that’s leadership.”
Smith said he’s going to talk “as much as I can” about newfound conservative values and why President Trump should win re-election in 2020.
“By the way, I think that America is the freest and safest nation for gays and lesbians, and I believe that wholeheartedly,” Smith said. “And I’m going to go out to the rallies, and I’m going do the work with Turning Point USA, and I’m going to keep running my mouth on social media.”
Smith also warned against underestimating the power of gay conservatives or their presence in the LGBT voting bloc.
“There’s not a lot of us,” Smith said. “There’s maybe like 5, 6, 7 that have this national platform right now. What I’ve seen, and what a lot of these people will tell you, is that there are more of us than you think, and when I look at my DMs and my tweets, and what I see when I post an Instagram video, there’s so many of us out there.”
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.
Former Ambassador Daniel Baer explains it all on Ukraine crisis
Expert downplays strategic thinking behind Putin’s move
Daniel Baer, who worked on LGBTQ human rights and transatlantic issues as one of several openly gay U.S. ambassadors during the Obama administration, answered questions from the Washington Blade on Ukraine as the international crisis continues to unfold.
Topics during the interview, which took place weeks ago on Jan. 27, included Putin’s motivation for Russian incursions, the risk of outright war, predictions for Russia after Putin and how the crisis would affect LGBTQ people in Ukraine.
Baer was deputy assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor and U.S. ambassador to the Organization of Security & Cooperation in Europe.
The full interview follows:
Washington Blade: What’s your level of engagement with this affair? Are you doing any consulting work? Is the administration reaching out to you at all?
Daniel Baer: I actually think the White House is doing a pretty good job of recognizing that they need to not only have press conferences, but also talk to other people who are trying to figure out how to be constructive critics, idea generators from the outside.
Blade: OK, so you’re being solicited and engaging on this issue. My next question for you is why do you think Putin is doing this at this time?
Baer: So, I guess taking a step back from the whole thing, one of the things about a problem like this is that everybody is searching for the right answer assuming that there is a like comfortable or compelling or intellectually accurate answer, and I actually think we’re just in a really hard moment.
I don’t know why he’s doing it now. And in fact, I think that one of the puzzles that we haven’t solved yet is that all the things that he says are the reasons that he’s doing it — that he feels encirclement by NATO, … or that the situation in Ukraine is untenable — none of those things have changed. Setting aside the fact that they’re spurious, it’s not like there’s been some new move in the last 12 months that has precipitated [a reaction] on any of those fronts that you can say, “Oh, well, he’s responding to the recent meeting where Ukraine was offered membership in NATO, or he’s responding to a change in government in Ukraine that it’s clearly anti-Russia, or any other move that we’ve done.” The explanation just doesn’t hold water, and so I think we need to look for alternative ones.
The best I can come up with is actually just a broad — it doesn’t actually explain this particular moment, but I think you could look at the timing of his life. He has, I don’t know, 10 years left. And during those 10 years, it’s unlikely that Russia is going to grow more powerful; it’s much more likely that it’s going to become at least relatively and probably nominally less powerful. And so, if you’re unhappy with the status quo, and you feel like you’re a declining power, and you don’t have endless time, there’s no time like the present. And you’ll make up whatever reasons you need to in order to justify it.
I also think there’s a tendency on our part to attribute far more “strategery” to Putin than there necessarily is. I mean, he’s a bully and a thug. I think the whole Putin’s playing chess and we’re playing checkers is actually completely inverted. We’re in our own heads that there’s some kind of nuanced position that would mollify him. He’s just a gangster and he’s taking a punch because he has one. And I don’t think it gets much more complicated than that. And so, I guess the answer to why he’s doing this now, because the international conditions are such that he feels like the United States is focused domestically, the Ukrainians are not moving forward with succeeding to build — they’re kind of in stasis on building a European state— and he has, you know, he has the space to take a punch, so he’s contemplating doing it, or he’s already decided to do it. And he’s just extracting as much as possible before he takes it.
Blade: That leads me to my next question: What is your judgement of the risk of out and out war?
Baer: I don’t know because I have two hypotheses that cut both ways. One is that I think Putin is vastly underestimating the degree of resistance. On the other hand, I think that nothing short of domination is satisfactory. And so, I don’t know. I guess I think there’s a 90 percent chance that he does something, and I think there’s a 75 percent chance that what he does is not an all out invasion or ground invasion, at least not at first, but rather something that is aimed at confusing us. So some sort of hybrid or staged or false flag kind of attack in tandem with a political coup in Kiev, where he works to install a more Russia-loyal leader.
The thing with the ground invasion is that Russian soldiers’ moms are one of the only, like, powerful political forces in civil society in Russia. I just don’t see any way that a ground invasion doesn’t involve massive Russian casualties, even if they will be dominant. The people who are going to impose the consequences on him will be the Ukrainians, not the rest of us, and he should not invade, and if he does, we should, frankly, work hard to make it as painful and difficult for him as possible.
Blade: What will that look like?
Baer: I think we should at that point continue — we shouldn’t pause, we should continue to send the defensive equipment and backfill as much as possible their ability from an equipment basis to resist.
Blade: So if we were to look at a model for past U.S. engagements. I’m thinking Greece under President Truman, which was so successful that nobody really knows about it, I don’t think. Is there any model we should be looking toward, or not looking toward?
Baer: No, I guess. I’m not sure there’s any good historical model because obviously, any of them you can pick apart. I do think that one thing that has gotten lost in a lot of the analysis — and this goes back to Putin being a gangster thug, and not being such a genius — is there’s a moral difference between us. The reason why Putin gets to control the dialogue is because he’s willing to do things that we aren’t willing to do — as gangsters are, as hostage-takers are — and so yes, they get to set the terms of what we discussed, because we’re not holding hostages. We’re trying to get hostages released. And the hostage-taker has an upper hand and asymmetry because they are willing to do something that is wrong.
We shouldn’t lose the kind of moral difference there. Nor should we lose sight of the fact that Ukraine is being menaced. And I’m not saying it’s our obligation [to intervene militarily], certainly not our obligation. They aren’t a treaty ally. We have neither a political obligation nor a moral one to necessarily risk our own lives, our own soldiers in defense of Ukraine. But if Ukraine wants to defend themselves, there’s a strong moral case to be made that anything, short of risking our own lives, is something that is morally good. We generally believe that self-defense from lethal threat is a reasonable moral cause and assisting others in defending themselves is too — I think there’s a lot of back and forth that get glossed over whether that’s a provocation or whatever, and I want to say to people stand back, look at this: we’ve got one party that is attacking another. And the question is, does the other have a right to defend itself? Yes. And if they have a right to defend themselves, and they also have a right to have whatever assistance people will offer them in defending themselves.
That doesn’t mean that they get to demand that we show up and fight in the trenches with them, of course, and I don’t think there’s any serious people who are recommending that but it’s a good thing to help them. It’s not like a technical thing. It’s a good thing to help
Blade: Getting into that moral background, one thing I want to ask you was about the significance of what would happen in this concept of democracy versus autocracy. First of all, how much is Ukraine a functional democracy, in the sense that if we’re defending Ukraine, we are defending a democracy, and what signal do you think it would send if that Ukrainian government fell to Russian autocracy?
Baer: I think the institutions of government that the Ukrainian people have are not worthy of the Ukrainian people’s own demonstrated commitment …
They are not worthy of the Ukrainian people’s own demonstrated commitment to the idea of democratic institutions. So the answer is today’s Ukrainian government is a mixed bag and it’s very hard to build, on the rot of a Russian fiefdom, a functioning democracy, so I think it’s a mixed bag. I don’t want to sound like I’m minimizing [the changes], or that they’ve completely bungled an easy project. It was always going to be a hard project, and it was never going to be linear.
But I think that what we’ve seen from the Ukrainian people — by which I mean not Ukrainian people, but people of Ukraine — is that there is a broad part of society that a) does not want to live under a Russian thumb and b) sees its future in kind of European style democracy. And so I think that if there was, there’s no question that the Russian attack would be in part about subjugating the people of Ukraine and forcing them to live under some sort of new Russian satellite. And I think that there’s little space for serious argument that that’s something that the people of the country wish to have.
Blade: But I’m just kind of getting at — you’re kind of minimizing that this is a strategic move by Putin, but if he were to successfully dominant Ukraine it becomes a Russian satellite isn’t that saying like, “Well, ha ha West, you thought the Cold War was over and there’s going to be just be a unipolar world in the future but no, we’re gonna we have this we’re back and we’re gonna create a multipolar world for the future.”
Baer: Yeah, I mean, my answer to the Russians who always raise the multipolar world to me is, “Fine, it’s going to be a multipolar world. What makes you think that Russia is one of the poles?” Poles by definition draw people to them, they are compelling and a pole attracts, magnetically or otherwise, and there is nothing attractive about the model that Russia is pursuing. And if the only way that you can be a pole is by subjugating, to force your neighbors, you are proving that you are not one.
I think the benefits for Russia are far smaller than Putin thinks and I think the consequences for the rest of the world of allowing a violation of international order to go forward are much larger than many people recognize.
Blade: But that was their approach when they were the Soviet Union. They were subjugating the Eastern Bloc through Russian force. They did have, in theory, the concept of their worldview of you know, of socialism, or whatever you want to put it charitably, was going to be the right way to go. Is there really that much of a difference?
Baer: Yeah, however disingenuous it was, they did have an ideology . So you’re right, that was a key distinction. The other thing is that the Soviet Union in relative size — its economy and population etc. — was much larger than Russia is today. And Russia is shrinking, and its economy is less diverse than the Communist one was. I think it’s a delusion to think that they’re going to kind of rebuild an empire, even if yes, because of their willingness to do awful things, they could potentially for a time politically control through violence, their neighbors. I just don’t — in a multipolar world, I don’t see Russia being one of the poles, at least not on its current path.
Blade: How would you evaluate the U.S. diplomatic approach to this issue?
Baer: There’s been very clear over-the-top effort to include the Europeans at every step — meetings with them before each meeting and after each meeting, to force conversations into fora that are more inclusive and stuff like that. And I think that Secretary Blinken is rightly recognizing the need to kind of play a role of kind of keeping everybody on the side while we test whether diplomacy whether there’s anything to do, whether there’s any promise with diplomacy.
I think there’s kind of, sometimes kind of, two camps in U.S. foreign policy circles. One is like: We should give the Russians what they want because it just doesn’t matter that much. War is much worse than anything that we would give them. And another is that we can’t give them an inch and we have to punch them in the face whenever we can. And I think both of those are kind of knee-jerk positions that have become a bit religious for people and neither of them is paying attention to the practical challenge that’s in front of the administration, which is like this guy’s threatening to invade and we need to identify whether there’s any opportunity for a functional off ramp, and that doesn’t mean we do that in a vacuum and ignore the long-term consequences, but our problem is not a religious one, it’s a practical one. And I think they’re doing a pretty good job of threading the needle on that and being not too far forward and not too far back.
Blade: Do you see any significant daylight between the United States and Europe?
Baer: No, I mean, no more than the minimum that is possible. There’s a lot of talk about Germany these days. Look, I think some of the things they say are not particularly helpful, but I don’t actually think that in the long run, if Putin invaded, I don’t think that they would hold up sanctions or anything like that. So I think they’re on our side, even if they’re talking out of both sides, in some cases.
Blade: I am wise to the fact that this is a nuclear power. It might be a little old school, but could escalation get that far?
Baer: There can’t be war. There can’t be war between NATO and Russia. It should be avoided. Obviously, there can be, but it should be avoided.
Blade: How committed do you think President Biden is to protecting Ukraine?
Baer: Reasonably so. I think he’s enough of an old school trans-Atlantist that he understands that this isn’t just about Ukraine.
Blade: I was wondering because he had those comments from his press conference about “minor incursion” and I’m just wondering if you’re reading anything into that or not.
Baer: No, I think that was that was a — I think broadly speaking, everything he says is in line with the kind of view that you would expect. And of course, one sentence can catch [attention]. That wasn’t what he meant. What he meant was that he didn’t want to draw a “red line” that would prejudge policy in response to something short of the most extreme scenario.
I think it is a good caution to not obsess over a single sentence and to look at the broad considered policy statements.
Blade: What do you think if you were looking for developments, like what would you be looking out for is significant in terms of where we are going to be going in the near future? This is one thing to keep an eye out for but is there anything else that you are kind of looking out for in terms of the near future?
Baer: I guess I would look out for whether or not the United States joins meetings of the so-called Normandy Format, which is the France, Germany, Ukraine and Russia grouping, which has so far been unsuccessful, but I think can only be successful as the United States joins it, but the Russians, I think have misgivings with the idea of our joining it.
Blade: I’m not at all familiar with that. What makes this forum particularly so —
Baer: So it was started in the summer in like June of 2015, on the margins of some meeting between Merkel and Hollande. The French and the Germans are very committed to the idea that they might be able to mediate peace between Ukraine and Russia. It was supposed to implement the Minsk Agreement, and it just hasn’t been productive so far. I don’t think that the Russians will do anything — I don’t think the Ukrainians feel comfortable negotiating anything without the Americans at the table. And I don’t think the Russians feel like anything is guaranteed without the Americans at the table. So I just, I’m fine with France and Germany taking the lead, but I think the U.S. has to be there.
And there was a meeting of this group in Paris yesterday, and which the U.S. was supportive of, and so I’m watching to see whether or not the United States gets added in some ad hoc way, whether there are future meetings. I guess the reason I would watch it, if the U.S. were to join future meetings that would signal to me that it’s actually there’s some diplomacy happening there.
That’s meant to be focusing mainly on the existing Russian invasion, the occupation of the Donbas, so that’s not about the threat of the new invasion, but it would be interesting to me if there was forward movement on other parts of Ukraine. The announcement of the American ambassador is one. I think that last week movement of troops into Belarus was a game changer for the U.S., because there are all kinds of new implications if you’re using a third country as your launchpad for war, and so it complicates things and it also looks more serious if you’re starting to deploy to third countries and stuff like that. So I think that was that last week, you noticed a difference in the U.S. tone and tenor in response to that.
So things like that. But in general, like what I would do and I don’t think people always catch this is because there’s a boiling frog aspect to it. There are statements coming out from the White House or State Department. Almost every day on stuff related to this and like last week, there was a noticeable change in the tenor as the U.S. became less, I think more pessimistic about the prospects of diplomacy and those I don’t have anything better to look for in those statements as tea leaves, in terms of what the U.S. assessment is of the prospects of the escalation are, so it’s bad.
Blade: Right. That’s very sobering.
There’s a lot of talk, and I’ve just been seeing some like about in terms of, there’s like comparisons to Afghanistan and making sure that all Americans are able to get out of Ukraine. Is that comparing apples to oranges?
Blade: And could you unpack that a little bit? I mean, I can kind of guess the reasons why. How is that apples to oranges?
Blade: Well, the level of development in Ukraine in terms of infrastructure and transport and stuff like that is not comparable to Afghanistan. I think it would be– if there were a Russian invasion–you would definitely want to, obviously, for safety reasons, it’s not safe to be in a war zone, so you would want people to be able to evacuate and you’d have to plan for that.
A major concern [in Afghanistan] was also that there were tens of thousands, if not hundreds of thousands of locals who had worked for the Americans. The Americans that are in Ukraine are not a departing occupying power. There’s just not the same footprint there — the Americans are in Ukraine or there as business people or young [people working on] democracy assistance or whatever. And it’s just it’s a different context.
Blade: Why do you think the Russians put up with Putin? I mean, this is a country that was a world power and I would think has some economic potential just given its sheer size, first of all, and they do have oil to offer people. So why aren’t the Russians like angry at him for obstructing their participation in the global order as opposed to just putting up with him for years and years and years.
Baer: Successful instrumentalisation of cynicism. The lack of a belief in an alternative will keep you from fighting for it.
Blade: That’s pretty succinct.
Baer: I mean, I don’t think there’s any question that the people of Russia could be better off or different in terms of kitchen table issues, and ease of navigating the world, prospects for their future for their children’s future. The amount of money that Putin has invested into military modernization that Russia can ill afford, while he’s cut pensions and social services and health care. It’s just it’s objectively true that the average Russian person would be better served by a different leader. But he’s done a very good job of effectively selling off the country for profit and persuading people through repression and propaganda that there is no alternative.
Blade: And Putin won’t be around forever. Once he finally goes, is an alternative going to emerge, or will it be the next guy in Putin’s mold?
Baer: I think it’s far from clear that what comes after Putin isn’t worse and bloody. Regimes like this don’t reliably have stable transitions.
Blade: Wow, okay.
Baer: Yeah, we shouldn’t… we should be careful about wishing… wishing for his demise.
Blade: That’s good to know. It’s kind of a frightful note for me to end my questions. But actually before I sign off, there’s one more thing too because I do kind of want to talk about the intersection about your old job in democracy and human rights and then a Venn diagram of that with your experience in Eastern Europe in particular. Do you have a sense of what’s at stake for LGBTQ people in Ukraine or if they’re in more danger right now than they would be otherwise?
Baer: That’s a good question. I mean, my knee jerk reaction is yes. That — as mixed of a picture as Ukraine has been in the last seven years, or eight years — there have been meaningful steps forward, and certainly, in terms of visibility.
I guess, in the sense that Ukraine is better than Russia today, if you’re gay, if Russia is going to occupy or control Ukraine we can expect that it will get worse because it will become more like Russia.
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