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Gay State Dept. official oversees sale of military tech to allies

Former Log Cabin leader speaks on his new job and fighting for equality



Assistant Secretary Cooper consults with a senior U.S. Air Force Pilot as he tours the U.S. corral at the Paris Air Show. (Photo courtesy of the U.S. Department of State)

If you hear about the United States announcing the sale of military technology to a foreign ally, R. Clarke Cooper will have had a hand in it.

As assistant secretary for political-military affairs at the State Department, Cooper is charged with advancing national security interests by coordinating with allied and partner nations the sale of U.S. conventional weapons, such as F-35 aircraft, bombs, missiles and firearms. Each year, his bureau facilitates more than $190 billion in U.S. defense transfers.

Among the recipients are democracies like the United Kingdom, Italy and Japan — although others, such as Saudi Arabia and United Arab Emirates, have repressive governments notorious for criminalizing gay relationships and restricting women’s rights.

As a gay combat veteran, Cooper said he’s aware the United States supplies weapons to countries with less than stellar — even abysmal — records on human and civil rights.

“I’ve probably spent a good chunk of my life serving in places where one’s orientation like mine, would be either defined as criminal or even under the threat of a death sentence,” Cooper said. “But it doesn’t preclude us from presenting our people forward into these places, and it certainly doesn’t suspend our bilateral relationships.”

Cooper is acquainted with policies that suppress gay people. In the early Obama years, Cooper, as executive director of Log Cabin Republicans, worked with Congress to repeal “Don’t Ask, Don’t Tell,” and coordinated litigation that compelled the Pentagon to support open service.

Speaking with the Washington Blade in his office at the State Department on Aug. 21 about his present role, Cooper said the weapons sales are about a different thing entirely: Maintaining global security with U.S. allies to limit the influence of adversaries like Russia and China.

“It is always going to be what U.S. interests do we have in that particular country, in that region that we need to protect,” Cooper said. “That is overriding. Full stop. Always will be.”

Although Cooper is a Trump appointee (making him one of the handful of openly gay officials in the administration), the sale of weapons to these countries spans both Democratic and Republican administrations, including those of Trump, Obama, Clinton and both Bushes.

It’s the wiggle-room in between, Cooper said, that enables the United States to advocate for decriminalization of same-sex relationships and women’s role in society. Among these efforts, he said, are the United Nations’ Women, Peace & Security initiative and requirements on troop-contributing countries in global peacekeeping operations.

“There are a number of countries that have been challenging either statutes or policies on women and the LGBT community, who are significant troop contributors to U.N. peacekeeping operations or African Union peacekeeping operations,” Cooper said. “That does provide us a point of entre as a department to advocate for those communities.”

Cooper said the process for the arms transfer can take years, and during that time, red flags addressed in the State Department Human Rights Report or regional contextual issues could come into play.

“At the end of the day, though, regardless of whatever outlying issues there are, it’s always going to be about what’s in our interest,” Cooper said. “Again, not a new protocol, that is sustained.”

Weapons sales are but one part of the job of managing the Bureau of Political-Military Affairs. The responsibilities also include helping coordinate diplomacy and defense policy, assisting countries with clearing explosive hazards and building a capable and accountable staff of political-military practitioners.

Cooper won Senate confirmation in April after his nomination by President Trump was pending for about eight months. Since that time, Cooper said his day-to-day life on the job is unpredictable and “predicated on what’s happening globally.”

“I can have a day where I know that, OK, I’ve got calendar items, there’s either a meeting at the National Security Council, or there’s a briefing on Capitol Hill, or I’ve got to make sure I got to get a decision up to Secretary [Mike] Pompeo,” Cooper said. “Those are things that are on our calendar, and I can plan [for], what we don’t plan for is a particular reaction from an adversary or a posturing or threatening act by an adversary, and how that might be disruptive, and how we have to react.”

Cooper knows his stuff. Over the course of the interview, he quickly rattles off military acronyms, policy initiatives and recalls historical policies set by the Untied States and allies in the immediate aftermath of World War II.

Although Cooper said he’s forced to speak in generalities because much of his work is sensitive and classified, he identified both Russia and China as adversaries the United States is seeking to limit through weapons sales to allies.

“When we’re talking about the national security strategy that is very much focused on China and Russia,” Cooper said. “So when we’re looking at how we’re prioritizing not only foreign military financing, and foreign military sales and security assistance, all of that is looking to bolster and support our security partners who may be either directly challenged by Moscow or Beijing.”

In historical context, Cooper said those partners have been limited to countries bordering Russia and China, but in an asymmetric environment where the world is flat, those partnerships are “much broader than that.”

“When we are looking at security assistance, when we’re looking at presence and when we’re looking at influence, countering China is inclusive of Africa, and the African continent, countering Russia is inclusive of, well, this hemisphere as well,” Cooper said. 

In terms of China, Cooper also identified the Indo-Pacific region as an area “where we have put significant attention and resources.”

“That is, we’re wanting to make sure that is it not only free and open for trade, but unmolested, and undisrupted by China,” Cooper said. “That does help us as far as prioritization.”

It’s a dream job for Cooper, who following his stint from 2010 to 2012 at Log Cabin returned to active duty service in the U.S. Army. His tours include United States Africa Command, Special Operations Command Africa, Joint Special Operations Task Force Trans-Sahara and Special Operations Command Central.

In a previous life during the Bush administration, Cooper worked in the State Department as a representative to the United Nations and an adviser at the U.S. embassy in Baghdad. Immediately before his confirmation, Cooper was director of intelligence planning for Joint Special Operations Command’s Joint Inter-Agency Task Force in the National Capital Region.

But it’s also a dirty job, according to a majority of Americans. Last month, the Chicago Council for Global Affairs issued survey data finding 70 percent of Americans believe that selling weapons to other countries makes the United States less safe, not more. 

That view cuts across party lines, with 75 percent of Democrats, 70 percent of independents and 62 percent of Republicans believing the United States is worse off for the weapons sales. Another 20 percent say the weapons sales make no difference.

Elliot Imse, a spokesperson for the LGBTQ Victory Institute, which has sought to facilitate the appointment of LGBT people to federal government posts, had an altogether different complaint about Cooper: Too white male, not LGBT enough.

“All aspects of our government have been dominated by straight white cisgender men — and that perspective, and conscious or unconscious bias, seeps into every policy decision our country makes,” Imse said. “Better decisions are made — whether about our economy, international relations or national defense — when people of color, women, LGBTQ people and other diverse voices are part of the conversation.”

Imse pointed out Cooper is an appointee in the Trump administration, which has gained a reputation for being hostile to LGBT people and other minorities.

“The Trump administration is still the Trump administration and the people they appoint rarely reflect our values, but the hope is that even those who don’t can provide some new openings toward more inclusive thinking,” Imse said. “There will be no miracles, however, as this administration remains fundamentally opposed to equality.”

There’s one other aspect of Cooper’s job: It’s macho and consists of engagements with military officials and foreign leaders in countries hostile to LGBT rights. 

Cooper, however, said being gay has “not at all” come up as an issue.

“I have not encountered anything that would be interpreted or defined as counter to supportive,” he said. “I’ve not witnessed or assessed anything that would have been degrading, or holding me back in my career.”

R. Clarke Cooper at his ceremonial swearing-in by Secretary of State Mike Pompeo, joined by his mother, Tracy Clarke Cooper Tuckman and his husband, fellow combat veteran Mike Marin. (Photo courtesy State Department)

Cooper pivoted to his time in the military immediately after his tenure at Log Cabin and “Don’t Ask, Don’t Tell” repeal to emphasize the transition in the way the United States views gay people, including in the military. At the time, Cooper said no one else with whom he served was aware of his time at the Republican LGBT group.

“I think one of the best things, probably the most equitable place for the LGBT community is the military,” Cooper said. “Because it is such a merit based place. Again, you either are able to meet requirements, and you’re able to fulfill those requirements. And then there are certain programs like I was in that have very specific assessment and selection procedures. But none of them factor in orientation. None.”

At the same time, Cooper developed his relationship with his now husband Michael Marin, who’s also an active duty officer. Cooper said as members of the military they were both expected to attend each other’s functions as a date.

When the time came for marriage, Cooper said he informed his commander, per military tradition dating back to the 18th century, and received an enthusiastic response. Not only that, Cooper said, but his colleagues in the military were supportive.

“They were making jokes about life’s gonna be a little easier being married to a guy,” Cooper said. “I was like, What? ‘You can fart in bed and stuff.’ And so I’m sitting here thinking, I can’t believe I’m having this conversation. We’ve gotten to that point where it’s like there, and then they’re giving marital advice.”

Cooper said he realizes that transition may surprise older gay men, who are used to the idea of the military being hostile to gays. Holding back emotion for a brief moment, Cooper said, “The exciting part of this is not everybody gets to see the fruits of their labor, and they don’t get to see it as quickly.”

Still, Cooper conceded what has changed in the military for gays in the aftermath of “Don’t Ask, Don’t Tell” may not be true in all areas of the United States.

Invoking a time before the civil rights era for black Americans — when they were treated more equitably in the military after desegregation, but not in other places of the country — Cooper said the same holds true for gay people at military bases, which he said have become “islands of equality.”

“Fort Bragg, North Carolina, I’m a peer. I’m equal,” Cooper said. “There is no difference…I’m married. My spouse is identified by the Department of Defense as my spouse, not my partner, my spouse. Step into Fayetteville: Not so much.”

Assistant Secretary Cooper mixes at a reception to welcome incoming U.S. Marine Security Guard Detachment Commanders assigned to protect U.S. embassies worldwide. (Photo courtesy State Department)

But Cooper stopped short of criticizing the transgender military ban implemented under the Trump administration. Asked if based on that experience whether he opposes the policy, Cooper replied, “No.”

Cooper relented by saying “if someone is trans and they are capable of serving, they should be serving,” but towed the line of the Defense Department.

“This is not my wheelhouse right now, but my understanding of where the current status is with the Department of Defense is that there is no ban that’s in place,” Cooper said.

Under the Trump administration, service members are discharged who are diagnosed with gender dysphoria or are prescribed transition-related care. In terms of enlistments, the policy bars applicants with a history of gender dysphoria — unless the individuals are willing to serve in their biological sex (an extremely small number of transgender people). Applicants who obtained transition-related care are outright banned.

In a recent Washington Blade article on the transgender policy, which was implemented in April, the military reported no discharges — although transgender rights advocates have doubts about those numbers.

“I do know that [James] Mattis and [Mark] Esper made clear that if we are going to address readiness across the board, there was a refocus on people’s weight, people’s exposure to drug and alcohol abuse…if people had to come off line from service, for whatever reason,” Cooper said, adding he’s “not equating someone’s status with other issues.”

Asked if that means he’s fine with the policy, Cooper replied, “If I understand it correctly, there’s not a ban on trans service. There’s not an operative ban on trans service at the department.”

Pressed again by the Blade about the issue, Cooper said, “I think it’s I think it’s still being addressed.” (The issue is considered resolved by the Trump administration.)

“I know that depending on where somebody may be in transition, that that was probably part of the dialogue,” Cooper said. “I say probably because I’m guessing because I wasn’t a part of that conversation.”

Informed by the Blade an estimated 14,700 transgender people are serving in the military, Cooper said those service members should be able to stay “if they’re in current service, and they’re deployable.”

Asked whether he had any input on Log Cabin’s recent controversial endorsement of Trump, Cooper distanced himself and said he hasn’t been involved in politics for some time.

“I’ve been in a Hatch Act space now for quite a while,” Cooper said. “So I can say from previous experience of how those work. Any group that would be seeking endorsement of any candidate usually is going to be doing some homework prior to doing that. But I have zero visibility on what either they or the RNC is doing.”

Cooper, however, still has allies from his days at Log Cabin.

Christian Berle, a gay Republican who worked with Cooper at Log Cabin on “Don’t Ask, Don’t Tell” repeal, praised his one-time colleague.

“He’s a conservative, so locking himself to the White House fence has never been who he is, but he has, in my experience, used his personal and political connections to advocate for those who he knows are disadvantaged,” Berle said.

Berle said Cooper’s efforts during the “Don’t Ask, Don’t Tell” repeal process were “rooted in his frustration” about privileged gay people like him being able to serve in high-profile civilian positions, but others not being allowed to serve in the military.

“I think Clarke is very capable of using his positions, his opportunity to interact with Secretary Pompeo and other members of the administration to argue for a fairer [world],” Berle said. “I think there is a lot more that needs to be done, a lot of people elsewhere in the administration who also need to stand up, but I’m confident in the work that Clarke is doing to raise the voice to stand up for LGBT members of the diplomatic corps.”


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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



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



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



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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