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In 2004, Bloomberg fought partner benefits for LGBTQ workers — and won
NYC mayor refused to enforce ordinance despite court ruling
Democratic presidential candidate Michael Bloomberg on the campaign trail likes to talk about his early support for same-sex marriage and push for New York State to legalize gay nuptials in 2011, but one aspect of his record he doesn’t mention is his veto in the years before that time of domestic partner benefits for LGBTQ workers.
In 2004, Bloomberg as former New York City mayor, vetoed a measure approved by the New York City Council known as the Equal Benefits Law, which would have required businesses receiving $100,000 in annual city contracts to provide partner benefits, including health and pension benefits, to its LGBTQ employees.
Although the council voted to override his veto, Bloomberg sued to block the measure in court, citing interference with his authority as mayor, state law for municipalities and federal law for worker benefits. A judge refused to grant Bloomberg a temporary restraining order, but he nonetheless refused to enforce it. In 2006, when the case against the measure made its way to the New York State Court of Appeals, Bloomberg won.
At a time when same-sex couples are free to marry nationwide thanks to the 2015 decision by the U.S. Supreme Court in Obergefell v. Hodges, the idea of domestic partner benefits may seem quaint and insufficient, especially when they’d only be required for businesses doing $100,000 a year in contracts from New York City. But in 2004, when Massachusetts was the only state in the union to allow same-sex marriage and public sentiment was largely against gay nuptials, partner benefits were seen as a modest, but achievable, way to afford protections to LGBTQ families.
Carmen Vasquez, a now retired LGBTQ activist who at the time was deputy director of the Empire State Pride Agenda, told the Washington Blade Wednesday that Bloomberg’s veto of domestic partnership was “just dumb on his part.”
“It reflected poorly on his capacity to understand what the LGBT community was about,” Vasquez added.
Vasquez said Bloomberg overall was a “mixed bag,” citing positive moves of gun control, environment and the arts, but also “blind spots” on race, such as the “stop and frisk” policy for which Bloomberg has apologized since announcing his run for president.
Bloomberg’s veto of domestic partner benefits, Vasquez said, was “a big blow to the LGBT community” and spurred the decision to move forward with a larger statewide effort to legalize same-sex marriage in New York, which happened in 2011.
For context in 2004, the public perception on domestic partners was far more favorable than the idea of same-sex marriage. At least one other candidate for the Democratic presidential nomination had acted in support of them many years before that time. In 1992, Joseph Biden as U.S. senator voted against an amendment to appropriations legislation that would have overturned domestic partnerships in D.C.
Bloomberg is facing renewed scrutiny on his LGBTQ record in the aftermath of a two recently unearthed in which he made derisive comments about transgender people. In a 2016 video, Bloomberg referred to a trans woman as a “man in a dress,” and, as first reported by Buzzfeed News, Bloomberg in a 2019 video referred to a trans person as “it” and blamed transgender people for Democratic losses in 2016.
A Bloomberg campaign spokesperson responded to the 2004 veto of domestic partner benefits by saying the mayor had concerns the measure conflicted with state and local laws.
“Mike has been an advocate for LGBTQ+ equality throughout his public life,” the spokesperson said. “While Mike has been consistent in his belief that same-sex partners should have equal rights, in this case, he did not think the policy would advance this goal, because it would conflict with federal and state laws.”
Bloomberg had subsequently worked to expand benefits for LGBTQ workers, including partner benefits through a 2005 executive order, the campaign spokesperson said.
“As mayor, Mike worked to expand benefits and health care equality for domestic partners,” the spokesperson said. “In 2005, he secured health care benefits for domestic partners through executive order. He supported marriage equality in 2005 long before many elected officials in either party. As president Mike will pass the Equality Act and will take executive action to ensure equal benefits and protections for LGBTQ+ federal government employees, as well as employees of firms that do business with the federal government.”
Executive Order 72, which Bloomberg signed in 2005, required city vendors to report whether they offered health care coverage on an equal basis to the spouses and domestic partners of those employees, but made no requirement they did so as the city council ordinance did.
At the time of the veto, Matt Foreman, then-executive director of what is now the National LGBTQ Task Force, was so indignant over Bloomberg’s veto he resigned his post on New York City’s Commission of Human Rights — a role to which Bloomberg appointed him.
In a report from Gay City News in 2004, Foreman was quoted as lambasting Bloomberg, going so far as to say the former mayor may not have not ever seen a business contract with New York City.
“The City of New York has used its procurement power for decades to support social equality,” Foreman was quoted as saying. “I’m not sure the mayor has ever read a standard city contract. They contain pages of provisions requiring vendors to comply with the Human Rights Law, advance minorities and women and create a safe working environment.”
In his resignation letter to Bloomberg and Commission Chair Patricia Gatling, Foreman wrote, as reported by Gay City News, “Through its lawsuit, the administration is saying loudly and inexplicably that gay and lesbian families do no merit being part of this tradition [of promoting equity goals through contracting].” Foreman added “principle requires that I resign.”
Foreman, who’s now senior program director for gay and lesbian programs at the San Francisco-based Haas Jr. Foundation, didn’t dispute the 2004 quote in Gay City News when speaking with the Blade and acknowledged he resigned his position on the Human Rights Commission, but said there’s more to the story.
In the fall of 2005, Foreman said he received a phone call from Bloomberg, who explained his position against the council’s measure and urged him to rejoin the commission.
“He went over his objections to the ordinance (which were that it gave an unfair advantage to companies outside the city) and the steps he had taken to get more companies doing business with the city to offer domestic partner benefits,” Foreman told the Blade. “That included requiring all companies to publicly disclose whether they provided DP benefits to their employees and persuading some of the city’s largest health care insurance companies to start offering benefits at affordable rates. He was emphatic with me that he wanted gay couples to get equal benefits and thought the then-current situation was very unjust.”
Foreman told the Blade after listening to Bloomberg, he agreed to be reappointed to the commission and served until April 2008, when he left the Task Force to move to California.
“I don’t think the 2004 veto says anything about Mr. Bloomberg’s views on LGBT equality,” added Foreman, who said he hasn’t endorsed a candidate in the primary. “His actions since then confirm he’s a solid ally.”
At the end of the day, the New York State Court of Appeals — the highest state court in New York State — determined in 2006 Bloomberg was correct in refusing to enforce the measure, despite being unsuccessful in obtaining a restraining order, because the ordinance was “preempted by state and federal statutes.”
Writing the majority opinion in the decision in the case of Council of the City of New York v. Bloomberg was New York State Court of Appeals Associate Judge Robert Smith, who determined the measure conflicted with Bloomberg’s authority as mayor under the city charter, state municipal law for contracting rules and the federal Employee Retirement Income Security Act, or ERISA, which sets rules for health and retirement plans in the private industry.
“We have no doubt that the Equal Benefits Law is a good faith effort to make contractors treat the domestic partners of employees in a way that the Council considers fair,” Smith wrote. “But the competitive bidding statute reflects a judgment by the State Legislature that, to avoid among other things the risk of favoritism, municipalities must give business to the lowest responsible bidder, whether the bidder’s benefit plans meet the municipality’s idea of fairness or not.”
With regard to ERISA, the council had argued the benefits measure didn’t require certain business provide certain benefits, which would have been prohibited under federal law. That didn’t fly with Smith, who said the argument is “inconsistent with United States Court precedent” in the case of Boston Harbor v. Gould, which addressed unfair labor practices.
“The Equal Benefits Law, as its name implies, is designed to induce contractors to treat domestic partners and spouses equally, just as the Wisconsin statute in Gould was designed to induce contractors to avoid unfair labor practices,” Smith wrote. “Thus the market participant exception does not apply here, and the Equal Benefits Law, except to the extent that the benefits it governs are not provided through ERISA plans, is preempted by ERISA.”
The Court of Appeals ruling affirmed the appellate division’s dismissal of proceeding brought by the New York City Council to compel enforcement of the law.
Dissenting from the majority was then-Court of Appeals Associate Judge Albert Rosenblatt, who determined as a matter of separation of powers Bloomberg should have enforced the law after failing to obtain a restraining order because “it is the job of the legislative branch to enact laws and the executive to carry them out.”
Rosenblatt, however, declined to make a conclusion was unlawful or not under the constraints of federal and state law. Although the council maintained the measure would work because it was at minimal cost to contractors, additional evidence was needed.
“Expert testimony would be sought, hearings transcripts would be studied, credibility judgments would be made,” Rosenblatt wrote. “Supreme Court would be able to consider the extent to which factual matters were rationally controverted in reaching a conclusion about whether summary judgment was warranted. It would do so with all facts viewed in the light most favorable to the nonmoving City Council.”
Art Leonard, a professor of labor and employment law at New York Law School and editor of LGBT Law Notes,” said despite the court’s conclusion “issues of ERISA preemption and state preemption of a city ordinance are complicated, and debatable,” adding Bloomberg had more options.
“I think had Bloomberg enforced the law, he would have been sued by potential city contractors and the case would probably have ended up the same as it did, but in the meantime perhaps some employees of contractors would have enjoyed the benefits for their partners and children,” Leonard said. “I don’t know what was in Bloomberg’s heart — whether the legal argument was a pretext to deny benefits — but I would have said that in light of the difficulties of predicting how a court would resolve the preemption question, it would have been more politic for him to enforce the ordinance and have the city defend it in court if a contractor sued.”
Leonard compared Bloomberg’s veto of the domestic partnership measure to his appeal of a trial judge decision in Manhattan ruling in favor of marriage equality, which he said “inspired considerable ire.” The ruling was later overturned by the New York Appellate Division and the Court of Appeals.
“When he decided he was right about an issue, my recollection is that he was pretty much impervious to contrary argument,” Leonard concluded. “In that sense, of course, he bears a haunting resemblance to Trump along authoritarian lines.”
Christine Quinn, who as a former member of the city council, was chief sponsor of the measure, recalls in her 2013 book, “With Patience & Fortitude,” trying to model the New York City ordinance on a San Francisco measure and her disappointment when the New York Court of Appeals ruled against it.
“The point of that bill — for which I was the lead sponsor — was to get benefits for domestic partners; but even more important, it would demonstrate that we in city government had pushed the envelope as far as we could in recognizing gay families,” Quinn wrote. “We did everything to support the bill, from lobbying members of the City Council and community organizing to organizing businesses.”
Although Quinn conceded Bloomberg was justified in his reasoning, she concludes the court ruling against the measure was a “big defeat.” (The Blade reached out to Quinn for this article, but she declined to comment.)
“The mayor’s office brought a lawsuit claiming that passage of the bill was a violation of the City Council’s powers, because we don’t have power over contracts, which is actually true,” Quinn wrote. “Mayor Bloomberg didn’t disagree with the content of the bill, but he thought the City Council had overstepped its legislative authority. We had tried to be creative about how we wrote the legislation, doing it in a way that threaded the needle, but the court didn’t agree, and we lost. It was a big defeat.”
In subsequent years, Bloomberg as mayor of New York City would become a prominent voice in the fight to legalize same-sex marriage, advocating for it at the time of a failed vote on the Senate floor in 2009 and ultimately success in 2011. In subsequent years, Bloomberg would sign friend-of-the court briefs urging the U.S. Supreme Court to overturn the anti-gay Defense of Marriage Act in 2013 and rule in favor same-sex marriage nationwide in 2015.
At a Washington news conference last month announcing D.C. Mayor Muriel Bowser’s endorsement of his candidacy, Bloomberg said he had an “impeccable” record on LGBTQ rights and told the Blade his early support for same-sex marriage makes him stand from other competitors for the Democratic presidential nomination.
“Well just to address that one community, my recollection is…I went and got the Republican Senate of the State of New York as well as the Democratic House to pass a law permitting gay marriage in New York long before anybody else that I know who’s running for office ever even thought about it or certainly said anything about it,” Bloomberg said.
Foreman, speaking with the Blade, said Bloomberg’s later support for marriage equality is a perfect example of allowing public figures the opportunity to evolve on their views on LGBTQ rights.
“I’m starting my 41st year of essentially full-time work in the LGBT movement, 30 of them paid (yes, I’m unbelievably fortunate),” Foreman said. “What I’ve learned is that no elected official is perfect on our issues, that forward movement should be welcomed, and what counts most is actually getting things done for our people. Therefore, it would have been hypocritical and unproductive for me to have been locked in place when Mayor Bloomberg was doing the right things then. I’ve seen no evidence of backsliding since, just the opposite.”
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Honoring the legacy of New Orleans’ 1973 UpStairs Lounge fire
Why the arson attack that killed 32 gay men still resonates 50 years later
On June 23 of last year, I held the microphone as a gay man in the New Orleans City Council Chamber and related a lost piece of queer history to the seven council members. I told this story to disabuse all New Orleanians of the notion that silence and accommodation, in the face of institutional and official failures, are a path to healing.
The story I related to them began on a typical Sunday night at a second-story bar on the fringe of New Orleans’ French Quarter in 1973, where working-class men would gather around a white baby grand piano and belt out the lyrics to a song that was the anthem of their hidden community, “United We Stand” by the Brotherhood of Man.
“United we stand,” the men would sing together, “divided we fall” — the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to today’s queer safe havens.
Around that piano in the 1970s Deep South, gays and lesbians, white and Black queens, Christians and non-Christians, and even early gender minorities could cast aside the racism, sexism, and homophobia of the times to find acceptance and companionship for a moment.
For regulars, the UpStairs Lounge was a miracle, a small pocket of acceptance in a broader world where their very identities were illegal.
On the Sunday night of June 24, 1973, their voices were silenced in a murderous act of arson that claimed 32 lives and still stands as the deadliest fire in New Orleans history — and the worst mass killing of gays in 20th century America.
As 13 fire companies struggled to douse the inferno, police refused to question the chief suspect, even though gay witnesses identified and brought the soot-covered man to officers idly standing by. This suspect, an internally conflicted gay-for-pay sex worker named Rodger Dale Nunez, had been ejected from the UpStairs Lounge screaming the word “burn” minutes before, but New Orleans police rebuffed the testimony of fire survivors on the street and allowed Nunez to disappear.
As the fire raged, police denigrated the deceased to reporters on the street: “Some thieves hung out there, and you know this was a queer bar.”
For days afterward, the carnage met with official silence. With no local gay political leaders willing to step forward, national Gay Liberation-era figures like Rev. Troy Perry of the Metropolitan Community Church flew in to “help our bereaved brothers and sisters” — and shatter officialdom’s code of silence.
Perry broke local taboos by holding a press conference as an openly gay man. “It’s high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,” Perry said.
Two days later, on June 26, 1973, as families hesitated to step forward to identify their kin in the morgue, UpStairs Lounge owner Phil Esteve stood in his badly charred bar, the air still foul with death. He rebuffed attempts by Perry to turn the fire into a call for visibility and progress for homosexuals.
“This fire had very little to do with the gay movement or with anything gay,” Esteve told a reporter from The Philadelphia Inquirer. “I do not want my bar or this tragedy to be used to further any of their causes.”
Conspicuously, no photos of Esteve appeared in coverage of the UpStairs Lounge fire or its aftermath — and the bar owner also remained silent as he witnessed police looting the ashes of his business.
“Phil said the cash register, juke box, cigarette machine and some wallets had money removed,” recounted Esteve’s friend Bob McAnear, a former U.S. Customs officer. “Phil wouldn’t report it because, if he did, police would never allow him to operate a bar in New Orleans again.”
The next day, gay bar owners, incensed at declining gay bar traffic amid an atmosphere of anxiety, confronted Perry at a clandestine meeting. “How dare you hold your damn news conferences!” one business owner shouted.
Ignoring calls for gay self-censorship, Perry held a 250-person memorial for the fire victims the following Sunday, July 1, culminating in mourners defiantly marching out the front door of a French Quarter church into waiting news cameras. “Reverend Troy Perry awoke several sleeping giants, me being one of them,” recalled Charlene Schneider, a lesbian activist who walked out of that front door with Perry.
Esteve doubted the UpStairs Lounge story’s capacity to rouse gay political fervor. As the coroner buried four of his former patrons anonymously on the edge of town, Esteve quietly collected at least $25,000 in fire insurance proceeds. Less than a year later, he used the money to open another gay bar called the Post Office, where patrons of the UpStairs Lounge — some with visible burn scars — gathered but were discouraged from singing “United We Stand.”
New Orleans cops neglected to question the chief arson suspect and closed the investigation without answers in late August 1973. Gay elites in the city’s power structure began gaslighting the mourners who marched with Perry into the news cameras, casting suspicion on their memories and re-characterizing their moment of liberation as a stunt.
When a local gay journalist asked in April 1977, “Where are the gay activists in New Orleans?,” Esteve responded that there were none, because none were needed. “We don’t feel we’re discriminated against,” Esteve said. “New Orleans gays are different from gays anywhere else… Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.”
An attitude of nihilism and disavowal descended upon the memory of the UpStairs Lounge victims, goaded by Esteve and fellow gay entrepreneurs who earned their keep via gay patrons drowning their sorrows each night instead of protesting the injustices that kept them drinking.
Into the 1980s, the story of the UpStairs Lounge all but vanished from conversation — with the exception of a few sanctuaries for gay political debate such as the local lesbian bar Charlene’s, run by the activist Charlene Schneider.
By 1988, the 15th anniversary of the fire, the UpStairs Lounge narrative comprised little more than a call for better fire codes and indoor sprinklers. UpStairs Lounge survivor Stewart Butler summed it up: “A tragedy that, as far as I know, no good came of.”
Finally, in 1991, at Stewart Butler and Charlene Schneider’s nudging, the UpStairs Lounge story became aligned with the crusade of liberated gays and lesbians seeking equal rights in Louisiana. The halls of power responded with intermittent progress. The New Orleans City Council, horrified by the story but not yet ready to take its look in the mirror, enacted an anti-discrimination ordinance protecting gays and lesbians in housing, employment, and public accommodations that Dec. 12 — more than 18 years after the fire.
“I believe the fire was the catalyst for the anger to bring us all to the table,” Schneider told The Times-Picayune, a tacit rebuke to Esteve’s strategy of silent accommodation. Even Esteve seemed to change his stance with time, granting a full interview with the first UpStairs Lounge scholar Johnny Townsend sometime around 1989.
Most of the figures in this historic tale are now deceased. What’s left is an enduring story that refused to go gently. The story now echoes around the world — a musical about the UpStairs Lounge fire recently played in Tokyo, translating the gay underworld of the 1973 French Quarter for Japanese audiences.
When I finished my presentation to the City Council last June, I looked up to see the seven council members in tears. Unanimously, they approved a resolution acknowledging the historic failures of city leaders in the wake of the UpStairs Lounge fire.
Council members personally apologized to UpStairs Lounge families and survivors seated in the chamber in a symbolic act that, though it could not bring back those who died, still mattered greatly to those whose pain had been denied, leaving them to grieve alone. At long last, official silence and indifference gave way to heartfelt words of healing.
The way Americans remember the past is an active, ongoing process. Our collective memory is malleable, but it matters because it speaks volumes about our maturity as a people, how we acknowledge the past’s influence in our lives, and how it shapes the examples we set for our youth. Do we grapple with difficult truths, or do we duck accountability by defaulting to nostalgia and bluster? Or worse, do we simply ignore the past until it fades into a black hole of ignorance and indifference?
I believe that a factual retelling of the UpStairs Lounge tragedy — and how, 50 years onward, it became known internationally — resonates beyond our current divides. It reminds queer and non-queer Americans that ignoring the past holds back the present, and that silence is no cure for what ails a participatory nation.
Silence isolates. Silence gaslights and shrouds. It preserves the power structures that scapegoat the disempowered.
Solidarity, on the other hand, unites. Solidarity illuminates a path forward together. Above all, solidarity transforms the downtrodden into a resounding chorus of citizens — in the spirit of voices who once gathered ‘round a white baby grand piano and sang, joyfully and loudly, “United We Stand.”
Robert W. Fieseler is a New Orleans-based journalist and the author of “Tinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.”
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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, 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, a Black, queer woman and veteran of Planned Parenthood Action Fund, is to become the next president of the Human Rights Campaign, the nation’s leading LGBTQ group announced on Tuesday.
Robinson is set to become the ninth president of the Human Rights Campaign after having served as executive director of Planned Parenthood Action Fund and more than 12 years of experience as a leader in the progressive movement. She’ll be the first Black, queer woman to serve in that role.
“I’m honored and ready to lead HRC — and our more than three million member-advocates — as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,” Robinson said. “This is a pivotal moment in our movement for equality for LGBTQ+ people. We, particularly our trans and BIPOC communities, are quite literally in the fight for our lives and facing unprecedented threats that seek to destroy us.”
The next Human Rights Campaign president is named as Democrats are performing well in polls in the mid-term elections after the U.S. Supreme Court overturned Roe v. Wade, leaving an opening for the LGBTQ group to play a key role amid fears LGBTQ rights are next on the chopping block.
“The overturning of Roe v. Wade reminds us we are just one Supreme Court decision away from losing fundamental freedoms including the freedom to marry, voting rights, and privacy,” Robinson said. “We are facing a generational opportunity to rise to these challenges and create real, sustainable change. I believe that working together this change is possible right now. This next chapter of the Human Rights Campaign is about getting to freedom and liberation without any exceptions — and today I am making a promise and commitment to carry this work forward.”
The Human Rights Campaign announces its next president after a nearly year-long search process after the board of directors terminated its former president Alphonso David when he was ensnared in the sexual misconduct scandal that led former New York Gov. Andrew Cuomo to resign. David has denied wrongdoing and filed a lawsuit against the LGBTQ group alleging racial discrimination.
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