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Coronavirus upends campaign season as D.C. primary nears

Gay candidate competing in hotly contested Ward 2 Council race

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DC election, gay news, Washington Blade
John Fanning and Patrick Kennedy have each been endorsed by prominent members of the LGBTQ community for the Ward 2 Council seat. (Photos courtesy of the campaigns)

Nearly all of the 25 candidates running in D.C.ā€™s June 2 Democratic primary for five D.C. Council seats and three congressional seats have expressed strong support for LGBTQ rights, prompting activists to predict that LGBTQ voters will likely choose a candidate to vote for based on non-LGBTQ issues.

Early voting for the primary began on May 22 and was scheduled to continue each day except Memorial Day on May 25 at 20 voting centers located throughout the city from 8:30 a.m. to 7 p.m. The 20 voting centers were scheduled to be open from 7 a.m. to 8 p.m. on June 2. The location of the voting centers can be found at dcboe.org.

Board of Elections officials have said the deadline for applying online or by phone for an absentee mail-in ballot was May 26.

Most political observers say the hotly contested Ward 2 D.C. Council race is the wildcard in a city primary election in which the incumbents usually win. With no incumbent in the Ward 2 race and in the midst of the coronavirus shutdowns making it impossible for candidates to hold in-person events or campaign outdoors, no one is predicting who the winner will be in that contest.

Similar to nearly all D.C. elections, the winners in the Democratic primary are usually the winners in the November general election in a city with the overwhelming majority of voters being registered Democrats.

Some ā€” but by no means all ā€” LGBTQ activists have joined gay Ward 2 D.C. Council candidate John Fanning in urging their fellow LGBTQ compatriots to vote for Fanning as a means of returning an out LGBTQ person to the ranks of the 13-member City Council.

The Council has not had an LGBTQ member since January 2015 after the late gay Council member Jim Graham (D-Ward 1) lost his re-election race in 2014 and gay Council member David Catania (I-At-Large) gave up his seat in an unsuccessful run for mayor in 2014.

Fanningā€™s supporters argue that Fanning, 57, a longtime Logan Circle Advisory Neighborhood Commissioner and a Ward 2 community services representative for several D.C. mayors is highly qualified to serve on the Council.

Other LGBTQ activists, however, are supporting rival Ward 2 candidate Patrick Kennedy, 28, an Advisory Neighborhood Commissioner in Foggy Bottom who has been endorsed by at least three other gay ANC members, a gay member of the D.C. State Board of Education, and by Casa Ruby founder and executive director Ruby Corado. Catania is also backing Kennedy.

Several of them have said Kennedyā€™s understanding and support for LGBTQ issues is exceptionally strong and while they too favor electing an LGBTQ person to the Council, at this particular time they say Kennedy is the best person for the job. Kennedy has also been endorsed by D.C. Council Chair Phil Mendelson (D-At-Large).

Fanning supporters note that Fanning has been endorsed by former D.C. Council member Carol Schwartz, a longtime LGBTQ rights supporter, and by a number of prominent LGBT activists, including former Whitman-Walker Clinic Executive Director Cornelius Baker, former Whitman-Walker Board Chair Riley Temple, and longtime gay activists Paul Kuntzler, Jose Gutierrez, and Ernest Hopkins.

Fanning and Kennedy are among eight candidates competing in the Democratic primary for the Ward 2 Council seat that former D.C. Council member Jack Evans has held for 28 years. Evans resigned from the seat in January after all 12 of his Council colleagues said they planned to vote to expel Evans over allegations of ethics violations.

Evans has apologized for what he has called mistakes in judgment but insists he did not violate any laws. Citing his reputation as an expert in city financial and budget related matters, Evans has called on his former Ward 2 constituents ā€“ including LGBTQ constituents ā€“ to send him back to the Council to utilize his skills to help the city respond to the coronavirus crisis. LGBTQ activists, many of whom are not supporting Evans now, acknowledge that he has been among the Councilā€™s strongest supporters on LGBTQ rights since he first won election to the Council.

The remaining candidates running in the Democratic primary for the Ward 2 seat have also expressed strong support for LGBTQ rights. They include Burleith ANC member Kishan Putta, 46; former Obama administration official Jordan Grossman, 34; Marine Corps veteran and Microsoft employee Daniel Hernandez, 32; former Assistant D.C. Attorney General Brooke Pinto, 27; and Kaiser Permanente business development executive Yilin Zhang, 32.

Pinto has been endorsed by the Washington Post and by current D.C. Attorney General Karl Racine. Grossman received endorsements from the Metro Washington Council of the AFL-CIO, the Washington Teachers Union, and D.C. Council member Elissa Silverman (I-At-Large). Putta has been endorsed by former U.S. Surgeon General Vivek Murthy.

Evans has been endorsed by D.C. nightlife advocate and Washington Blade columnist Mark Lee. Also backing Evans are longtime LGBTQ rights advocates John Ralls and Michael Ramirez. Ralls is a former chief of staff at Evansā€™s Council office.

All of the candidates except Evans and Hernandez are also running in a June 16 special election to fill the Ward 2 D.C. Council seat that became vacant when Evans resigned in January. The winner of the special election will hold the seat until Evansā€™s term would have ended on Jan. 1, 2021.

Also running in the special election is Republican Ward 2 Council candidate Katherine Venice, who is running unopposed in the Republican primary also scheduled for June 2. Venice has alienated many of the cityā€™s GOP activists by denouncing President Donald Trump and pledging to work hard for his defeat in the November presidential election.

Venice received a +8 rating on LGBTQ issues from the D.C. Gay and Lesbian Activists Alliance, which praised her responses to its candidate questionnaire as being highly supportive and insightful on LGBTQ matters. She told the Washington Blade she would not accept an endorsement from the D.C. Log Cabin Republicans, the local LGBTQ GOP group, because Log Cabin has endorsed Trumpā€™s re-election.

Three longtime LGBTQ rights supporters ā€” D.C. Congressional Del. Eleanor Holmes Norton (D), D.C. Council member Robert White (D-At-Large), and D.C. Shadow U.S. Sen. Paul Strauss (D) ā€” are running unopposed in the Democratic primary. Also running unopposed is political newcomer Oye Owolewa (D), whoā€™s running for the shadow U.S. House seat. All four have been endorsed by the Gertrude Stein Democratic Club, the cityā€™s largest local GLBTQ political group.

The Stein Club did not make an endorsement in the Ward 2 Council race as well as in the Council races in Wards 4 and 8. None of the multiple candidates running for the three seats, including incumbents Brandon Todd (D-Ward 4) and Tryon White (D-Ward 8), received a required 60 percent of the vote by Stein Club members needed for an endorsement.

In the Ward 4 race, Todd, a longtime supporter of LGBTQ rights who has been endorsed by D.C. Mayor Muriel Bowser, is being challenged in the primary by community activists Janeese Lewis George and Marlena Edwards. George, who identifies herself as a democratic socialist, is appealing to the wardā€™s liberal-progressive voters who George says agree with her assertion that Todd is a captive of business interests at the expense of working class residents.

Todd supporters say Georgeā€™s far-left positions put her at odds with the majority of Ward 4 residents who recognize Toddā€™s role as a political moderate who is credited with providing excellent constituent services and with helping to boost the economic development in Ward 4.

George received a + 6.5 rating on LGBTQ issues by the D.C. Gay and Lesbian Activists Alliance compared to Todd, who received a +6 rating. Edwards received a +4.5 GLAA rating. GLAA rates candidates on a scale of +10, the highest possible rating, to -10, the lowest possible score indicating an anti-LGBTQ record or current positions.

Similar to other otherwise LGBT supportive candidates, GLAA said Todd and Edwards lost points for opposing decriminalization of sex work, a position that GLAA and other local LGBTQ organizations support.

Gay candidate wins key endorsements in Ward 7

In the Ward 7 D.C. Council race, incumbent Council member and former D.C. Mayor Vincent Gray, a longtime LGBTQ rights supporter who received the Stein Clubā€™s endorsement, is being challenged by five fellow Democrats. Among them is gay Advisory Neighborhood Commissioner and community activist Anthony Lorenzo Green.

The others running against Gray in the primary include attorney and community activist Veda Rasheed; Army veteran and Fannie Mae manager Kelvin Brown; Ward 7 businesswoman Rebecca Morris; and community activist James Leroy Jennings.

GLAA assigned Gray a rating of +8, saying Gray has an excellent record on LGBTQ issues but lost points for his opposition to decriminalization of sex work. Green, who also has a record of support on LGBTQ issues, received a +4 rating after failing to return the GLAA questionnaire, according to a GLAA statement accompanying its ratings. GLAA says it has a policy of assigning a rating of ā€œ0ā€ to candidates who donā€™t return the questionnaire if their record and positions on LGBTQ issues are unknown.

For that reason, GLAA assigned a ā€œ0ā€ rating to Ward 7 candidates Rasheed, Morris, Jennings, and Brown after each of them failed to return the questionnaire and their record on LGBTQ issues was unknown to GLAA.

Green, Brown, and Rasheed joined Gray in participating in a May 11 online candidate forum organized by the Stein Club, and each of them expressed support for LGBTQ issues at the forum. Morris and Jennings did not participate in the forum.

Most political observers believe Gray is the strong favorite to win re-election in the June 2 primary. But some of the same observers say Green has made a strong showing in both his campaign fundraising and by a few significant endorsements he has received, including from the D.C. local chapter of the AFL-CIO, the Washington Teachers Union and the progressive group D.C. for Democracy.

In addition to the Stein Club endorsement, Gray has been endorsed by the Washington Post, the Sierra Club, and the local group Greater Greater Washington.

In the Ward 8 D.C. Council race, incumbent Council member Trayon White (D), who has a record of support for LGBTQ rights, is considered the favorite to win re-election. He is being challenged in the Democratic primary by three opponents, each of whom has expressed support for LGBTQ rights.

The challengers include Ward 8 attorney and community activist Yaida Ford, who received a +7 rating from GLAA compared to a +4.5 rating that GLAA gave to White. Also receiving a +4.5 GLAA rating is Ward 8 candidate Mike Austin. The remaining candidate, Stuart Anderson, received a +3 GLAA rating. Although each of the Ward 8 candidates, including White, expressed support for LGBTQ issues at the Stein Clubā€™s May 11 virtual candidate forum, GLAA says in its ratings statement that all of the candidates except Ford did not provide sufficient substance to their answers to the 10 questions on the GLAA candidate questionnaire.

GLAA said Anderson lost points for expressing opposition on the questionnaire to a pending D.C. Council bill calling for outlawing the so-called LGBTQ panic defense in criminal trials. Attorneys have used the panic defense to excuse anti-LGBT violence on grounds that a perpetrator lost control of his or her emotions after learning the person they attacked was gay or transgender.

ā€œDemocratic candidate Yaida Ford agrees with GLAA on all issues and shows good substance in her questionnaire responses,ā€ GLAA says in a statement accompanying its ratings. ā€œShe was legislative counsel for the Committee on Human Services under [former DC Council member] Jim Graham, and was his liaison to the Gertrude Stein Democratic Club,ā€ GLAA says in its statement, which adds that Ford represents LGBTQ people in her law practice.

White, meanwhile, has been endorsed by the Washington Teachers Union, the Metropolitan Washington AFL-CIO, the American Federation of Government Employees (AFGE), the Sierra Club, and Jews for Justice.

Several independent candidates are running for some of the D.C. Council seats at play in the June 2 primary, but they will not be on the ballot until the November election. The Blade will be reporting on their campaigns in the coming weeks.

ā€˜Presidential Preferenceā€™ receives little attention

With the distraction of the coronavirus epidemic and the presumptive nomination of former Vice President Joe Biden as the Democratic candidate for president, D.C.ā€™s Presidential Preference Primary, also set for June 2, has received little attention in the media.

But when D.C. voters go to the polls or receive their mail-in ballots they will discover that Biden and three other Democratic presidential candidates who dropped out of the race and announced their support for Biden earlier this year are on the D.C. ballot. The others on the ballot are U.S. Sens. Bernie Sanders (D-Vt.) and Elizabeth Warren (D-Mass.), and U.S. Rep. Tulsi Gabbard (D-Hawaii).

The D.C. Board of Elections has said the decision by the three to drop out of the presidential race came too late to change the ballots, which were already prepared.

The name Donald J. Trump will be on the D.C. ballot for Republican voters in the June 2 Presidential Preference Primary.

Other Republican candidates along with D.C.ā€™s Statehood Green Party and Libertarian Party candidates will be on the June 2 primary ballot. Following is a list of those candidates along with the GLAA rating they received:

At-Large D.C. Council:

Marya Pickering (R), GLAA rating, -3

Ann C. Wilcox (Statehood Green), GLAA rating +0.5

Joe Bishop-Henchman (Libertarian), GLAA rating 0.

Ward 2 D.C. Council:

Katherine Venice (R), GLAA rating, +8

Ward 4 D.C. Council:

Perry Redd (Statehood Green), GLAA rating 0

Ward 8 D.C. Council:

Nate Derenge (R), GLAA rating -2

Delegate to U.S. House:

Natale Lino Stracuzzi (Statehood Green), no GLAA rating

Ford Fischer (Libertarian)

U.S. Shadow Senator:

Eleanor Ory (Statehood Green), no GLAA rating;

U.S. Shadow Representative:

Joyce (Chestnut) Robinson-Paul (Statehood-Green), no GLAA rating

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Honoring the legacy of New Orleansā€™ 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 Orleansā€™ 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, ā€œUnited We Standā€ by the Brotherhood of Man. 

ā€œUnited we stand,ā€ the men would sing together, ā€œdivided we fallā€ ā€” the words epitomizing the ethos of their beloved UpStairs Lounge bar, an egalitarian free space that served as a forerunner to todayā€™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 ā€” 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: ā€œSome thieves hung out there, and you know this was a queer bar.ā€ 

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 ā€œhelp our bereaved brothers and sistersā€ ā€” and shatter officialdomā€™s code of silence. 

Perry broke local taboos by holding a press conference as an openly gay man. ā€œItā€™s high time that you people, in New Orleans, Louisiana, got the message and joined the rest of the Union,ā€ 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. 

ā€œThis fire had very little to do with the gay movement or with anything gay,ā€ Esteve told a reporter from The Philadelphia Inquirer. ā€œI do not want my bar or this tragedy to be used to further any of their causes.ā€ 

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

ā€œPhil said the cash register, juke box, cigarette machine and some wallets had money removed,ā€ recounted Esteveā€™s friend Bob McAnear, a former U.S. Customs officer. ā€œPhil wouldnā€™t report it because, if he did, police would never allow him to operate a bar in New Orleans again.ā€ 

The next day, gay bar owners, incensed at declining gay bar traffic amid an atmosphere of anxiety, confronted Perry at a clandestine meeting. ā€œHow dare you hold your damn news conferences!ā€ 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. ā€œReverend Troy Perry awoke several sleeping giants, me being one of them,ā€ 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 storyā€™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 ā€” some with visible burn scars ā€” gathered but were discouraged from singing ā€œUnited We Stand.ā€ 

New Orleans cops neglected to question the chief arson suspect and closed the investigation without answers in late August 1973. Gay elites in the cityā€™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, ā€œWhere are the gay activists in New Orleans?,ā€ Esteve responded that there were none, because none were needed. ā€œWe donā€™t feel weā€™re discriminated against,ā€ Esteve said. ā€œNew Orleans gays are different from gays anywhere elseā€¦ Perhaps there is some correlation between the amount of gay activism in other cities and the degree of police harassment.ā€ 

(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 ā€” with the exception of a few sanctuaries for gay political debate such as the local lesbian bar Charleneā€™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: ā€œA tragedy that, as far as I know, no good came of.ā€ 

Finally, in 1991, at Stewart Butler and Charlene Schneiderā€™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 ā€” more than 18 years after the fire. 

ā€œI believe the fire was the catalyst for the anger to bring us all to the table,ā€ Schneider told The Times-Picayune, a tacit rebuke to Esteveā€™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. Whatā€™s left is an enduring story that refused to go gently. The story now echoes around the world ā€” 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 pastā€™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 ā€” and how, 50 years onward, it became known internationally ā€” 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 ā€” in the spirit of voices who once gathered ā€˜round a white baby grand piano and sang, joyfully and loudly, ā€œUnited We Stand.ā€ 

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

Robert W. Fieseler is a New Orleans-based journalist and the author of ā€œTinderbox: the Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation.ā€

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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 ā€” 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 ā€” whether or not either party is personally aggrieved and able bring to a lawsuit ā€” 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. Coloradoā€™s own cases agree that the government may not use public-accommodation laws to affect a commercial actorā€™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 Smithā€™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.

ā€œIā€™m honored and ready to lead HRC ā€” and our more than three million member-advocates ā€” as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,ā€ Robinson said. ā€œThis 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 ā€” and today I am making a promise and commitment to carry this work forward.ā€

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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