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Who can defeat Trump? Preview of HRC/CNN town hall

Forum to be held on eve of National Coming Out Day

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HRC Town Hall, gay news, Washington Blade
This week’s Los Angeles Blade cover

To paraphrase Oda Mae Brown in “Ghost,” democracy, you in danger, girl.

This profound and dreadful moment in American history is worse than Watergate and far worse than the House impeachment of President Bill Clinton for lying about his affair with Monica Lewinsky because President Donald Trump has undermined public confidence in the very institutions of American democracy in his unquenchable thirst for unrestricted and unquestioned power.

But a Democratically controlled House impeachment inquiry into Trump’s behavior and fitness for office does not mean the Republican controlled Senate will convict and vote to remove him from office. Trump has admitted to stopping congressionally authorized money to Ukraine to purchase weapons in their desperate war against Russia, which has already militarily annexed Crimea. That was before Trump called the president of the Ukraine and asked him, as a favor, to re-investigate his chief 2020 election rival, former Vice President Joe Biden and his son Hunter. An earlier investigation into the Bidens found no illegality, nothing untoward.

Secretary of State Mike Pompeo and Attorney General William Barr also appear to have been caught up in this presidential abuse of power, as well as apparently trying to find evidence to support a right-wing conspiracy theory exonerating Russia from interfering in the 2016 elections.

Twice on Oct. 2 Trump publicly ranted about his critics, insisting the impeachment inquiry is a “hoax” and a Democratic “coup” and dangerously targeting Rep. Adam Schiff, chair of the House Intelligence Committee, saying Schiff should be arrested for treason. Schiff and other favorite Trump targets such as Rep. Maxine Waters have reported receiving death threats since 2017.

Former CIA Director John Brennan has slammed Trump for not caring about protecting the security of the nation’s elections. On Oct. 2, Brennan tweeted: “Press conference with Finnish President shows @realDonaldTrump is a national disgrace who deserves impeachment, conviction, & ouster from office. Republicans in Congress must abandon him now if they care about our country & have any hope of salvaging a political future for GOP.”

In an interview with MSNBC while attending a March For Our Lives/Giffords Democratic presidential candidates forum on gun safety in Las Vegas, out South Bend, Ind. Mayor Pete Buttigieg addressed Trump’s latest rants.

“The simple fact is that these rantings are not the words of the leader of a democracy. When you are being criticized, let alone when you are being called out for wrongdoing, responding by describing somebody who is calling you out or disagreeing as being ‘disloyal’ to the country because they’re being critical of you – this is the stuff of tinpot dictatorships, not the presidency,” Buttigieg said. “And it’s sad, not just for the president but for the presidency itself, for the country. Remember, this is the president of the United States – your life and mine depend of the wisdom and judgement of the president of the United States. And these rants are a bad sign for all of us.”

Vermont Sen. Bernie Sanders had intended to participate in that gun violence forum but after an Oct. 1 event in Las Vegas the night before, he was hospitalized for treatment of chest pains that proved to be a blockage in one artery. Though the campaign said he was “feeling good” the next day, all appearances were cancelled “until further notice,” raising questions about whether he could or should attend the LGBTQ HRC/CNN Democratic presidential town hall on Oct 10.

The “2020 Gun Safety Forum” was held the day after the second anniversary of America’s deadliest mass shooting at the Route 91 Harvest music festival that left nearly 60 people dead. It is another in a series of “issue-themed” forums and town halls sponsored by activists and hosted by media outlets dealing with race, climate change and pay equity.

The LGBTQ town hall will be held on the eve of a significant LGBTQ historic milestone—the 31st anniversary of National Coming Out Day on Oct. 11 That day was selected to commemorate the 1987 March on Washington for Lesbian and Gay Rights.

“This town hall comes at a critical time in our fight to achieve equality for lesbian, gay, bisexual, transgender and queer people in this nation,” said HRC President Alphonso David said in a press release. “Today, in 30 states, LGBTQ people remain at risk of being fired, evicted or denied services because of who we are. Thirty-five states have yet to ban the dangerous and debunked practice of ‘conversion therapy,’ which is harming our young people. Hate crimes are rising, and more than 100 transgender people — most of whom are transgender women of color — have been killed in the United States in the last five years.”

Despite House passage of the LGBTQ civil rights bill, the Equality Act, a top priority for Speaker Nancy Pelosi, Republican Senate Leader Mitch McConnell refuses to take it up. Meanwhile despite empty promises to protect LGBTQ Americans that earned Trump a re-election endorsement from Log Cabin Republicans, the Trump administration continues to roll back much of the progress on equality made under the Obama administration.

“Although the federal government should be protecting all residents, the Trump-Pence Administration is directly attacking our community by banning transgender troops from serving our country openly, undermining health care services for people living with HIV, and seeking to erase LGBTQ people from protections under law,” said HRC’s David.

The press release announcing the partnership between HRC and CNN included some polling data to help frame the forum.

“A Gallup poll conducted in May showed that 53% of Americans believe new laws are needed to protect the LGBTQ community’s civil rights, while 46% do not. Those numbers have stayed steady since the Gallup last asked the question in 2017,” the press release said. “The latest poll showed that 63% of Americans support legal same-sex marriage; that has risen substantially since 1999, when only 35% of Americans backed it.”

Polls showing public support or lack thereof are often taken into consideration when elected officials and politicians make policy decisions. Public opinion also impacts reaction to Supreme Court decisions. Strong religious conservatives, for instance, still think Roe v Wade, which gave individual women autonomy over their own bodies and reproductive health instead of the government or their husbands, was wrongly decided or decided too soon for the public to accept. Brown v Board of Education decided in 1954 that “separate but equal” was unconstitutional, but institutional racism still flourishes.

Though the Supreme Court ruled positively in granting marriage equality to same-sex couples, actually being equal is a different thing. Two days before the HRC/CNN forum, on Oct. 8, the high court will hear three cases about LGBTQ employment discrimination that “will determine if federal law protects LGBTQ people,” writes Freedom For All Americans Chief Counsel Jon Davidson. “These are the most important cases in LGBTQ history since we won marriage equality. But, even if we win them, we still will need Congress to finish the job by passing the Equality Act, which would ensure express and enduring nondiscrimination protections for LGBTQ people.”

It will be no surprise that the CNN moderators and invited guest questioners will ask Biden, former Housing and Urban Development Secretary Julián Castro, Sens. Kamala Harris, Elizabeth Warren, Cory Booker, Amy Klobuchar, former Texas Rep. Beto O’Rourke, Buttigieg and businessman Tom Steyer if they support and will sign the Equality Act. Nor will it be a surprise to hear them say they will end AIDS in our lifetime, reinstate trans military service, and stand up for the rights of LGBTQ people.

But the donkey in the room is whether or not any of the candidates—including gay Mayor Pete—fully grasp that LGBTQ people are officially second-class citizens, officially subhuman—including white rich privileged gay men who think discrimination doesn’t affect them, until they are beaten up by some white supremacist who doesn’t care about their privilege. It’s worse, of course, for LGBTQ folks who are also a racial minority or an immigrant or disabled.

Will CNN and the candidates treat LGBTQ people as if we are just another “issue” like climate change and gun violence?

Here’s an illustration, substituting “Black” for “LGBTQ” in the paragraph about polls. “A Gallup poll conducted in May showed that 53% of Americans believe new laws are needed to protect the BLACK community’s civil rights, while 46% do not. Those numbers have stayed steady since the Gallup last asked the question in 2017.”

Should LGBTQ civil rights be left up to how the majority feels about “the other,” the minority? That’s not far-fetched, as LGBTQ Californians know. On May 15, 2008, the California Supreme Court ruled in favor of marriage equality after a four-year series of legal battles.

That November, the anti-gay marriage Prop 8 initiative passed and suddenly what the state high court deemed was a “fundamental constitutional right” was stripped away from same-sex couples by the majority of California voters, though marriages between June and November were not voided and domestic partnerships remained, thus creating another discriminatory and painful two-tier status.

When challenged, the California Supreme Court subsequently said the will of the people through the state’s initiative process superseded the rights of individual gays and lesbians who are not officially protected under federal law.

So — when scrutinizing the Democratic candidates to see how they respond to specific questions — some expected to be crafted specifically for them such as Harris and Warren on the rights of transgender prisoners to have medical coverage for transition and other health, wellness and safety needs—consider also whether that candidate would not only stand up to Trump but stand up against a backlash when taking an unpopular position in the polls but one that is morally and constitutionally pro-LGBTQ equality.

Additionally, also consider if, as an LGBTQ voter, there is a certain responsibility to stand up for those who can’t stand up for themselves. For instance, National Coming Out Day was conceived during the 1987 March on Washington when activists and regular people around the world came to the nation’s capitol to plead for help for people dying of AIDS. Many in the march that day were in wheelchairs or using the buddy system to hold on for one more day.

Now the community crisis is visibly hitting the trans community, especially trans women of color who are still seeking their voices and rights without being killed. And the LGBTQ issue of identity will only get more intense. According to a new survey by The Trevor Project, more than 1 in 5 LGBTQ youth in the United States identify as a sexual orientation other than gay, lesbian or bisexual.

How would the candidates protect non-binary individuals who refuse to be categorized by the government according to some pre-ordained, easy to count square box on a form?

Who decides what is culturally competent in each of the administration’s departments?

More than likely, the Democratic candidates showing up for the HRC/CNN town hall are there for more than chits at the LGBTQ ATM in SoCal. Looking at how Cory Booker affectionately hugged and lifted The Advocate’s Zach Stafford at the LGBTQ Iowa forum, for instance, one can tell he feels very much at ease with LGBTQ people. Same with Kamala Harris and of course, Pete Buttigieg. Julian Castro and Beto O’Rourke’s youth and Elizabeth Warren’s teacher’s core suggest they, too, are comfortable with LGBTQ people without having to think about it.

But for Amy Klobuchar, Joe Biden, Bernie Sanders and Tom Steyer, there’s a sense they very consciously evolved. Not that there’s anything wrong with that.

But with even the hint of “otherness” in the back of the brain as an “issue” and not thinking of LGBTQ people as flesh and blood human beings, LGBTQ people can be invisible, ignored, left out of a conversation, policy decision, left behind – even with a “we’ll come get you, we promise.” Trans folk and people of color have heard that one before ,even within the LGBTQ community.

But, with assumed promises made to be included in policies, the most significant question LGBTQ voters must ask themselves is: who can defeat Donald Trump? Or even who can defeat Mike Pence, if Trump is impeached and Pence survives?

Which candidates, if any, will use Trump’s hypocrisy and Pence’s religious cruelty toward LGBTQ people as part of their campaign to win the presidency? And how will they do it?

“I look at the field of candidates and I can’t imagine a more qualified, electable, decent candidate than Joe Biden,” Michael Lombardo tells the Los Angeles Blade. “I’m sure there are others there but in terms of my experience, I have utmost faith in him and I hope he gets the nomination. And I hope he wins.”

Lombardo’s experience is having Biden meet his children with Sonny Ward, Johnny and Josie Ward-Lombardo, in 2012, where then-HRC President Chad Griffin asked Biden about his personal views on same-sex marriage and Biden “went over his skis,” to the surprise of the Obama administration.

That same year, 2012, gay Republican political consultant and activist Fred Karger became the first LGBTQ person to seriously throw money, time and talent into running for president, hoping to square off against Mitt Romney in a debate. Now he’s backing Pete Buttigieg.

“It was a tremendous honor to endorse Pete Buttigieg for president after meeting with him in Brooklyn in February of this year. He is so smart, thoughtful, reasoned and has the innate ability to get along with people on both sides of the aisle,” Karger tells the Los Angeles Blade.

“Pete’s candidacy shows just how far this country has come that an openly gay married man can raise the most money of all the Democratic candidates and be embraced by millions and millions of Americans. He has more centrist positions on many issues making him an ideal candidate to take on Donald Trump and win. While I am still a member of the Republican Party (barely), l see Pete’s election as our 46th president as the absolute best way to bring our divided nation back together.”

But if Trump succeeds in ensnaring Biden in the muck and mire of the Ukraine scandal and if click-bait seeking pollsters ask if the public really wants to elect a gay man as president, could they defeat Trump?

And if not the front runner and the smartest, then who?

LGBTQ voters have an opportunity and a responsibility to seriously consider all the ramifications because, as Buttigieg said: “Remember, this is the president of the United States – your life and mine depend of the wisdom and judgement of the president of the United States. And these rants are a bad sign for all of us.”

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Honoring the legacy of New Orleans’ 1973 UpStairs Lounge fire

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Business owner seeks to decline services for same-sex weddings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Progressive activist a veteran of Planned Parenthood Action Fund

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Kelley Robinson (Screen capture via HRC YouTube)

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

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

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

Kelley Robinson IS NAMED as The next human rights Campaign president

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

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

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

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