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U.S. Appellate Court rules against anti-LGBTQ website designer

In the 2-1 ruling, the court said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups.

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U.S. 10th Circuit Court of Appeals, Byron White Courthouse Denver Colorado (Photo Credit - Library of Congress Collections)

DENVER – A three judge panel of the U.S. 10th Circuit Court of Appeals on Monday ruled against a Lakewood, Colorado based web designer who sued to challenge the state’s anti-discrimination law, claiming that it would force her to design wedding websites for same-sex couples which violated her ‘Christian’ beliefs.

Lorie Smith, represented by anti-LGBTQ legal group, the Alliance Defending Freedom, (ADF)- listed by the Southern Poverty Law Center as an anti-LGBTQ extremist hate group, claimed in court filings that the Colorado law violated Smith’s freedom of speech and freedom of religious expression.

In the 2-1 ruling, the panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law.

The law that is being challenged by Smith and ADF is the same one that was argued before the U.S. Supreme Court and decided in 2018, Masterpiece Cakeshop, Ltd., et al., Petitioners v. Colorado Civil Rights Commission, et al., in the case of another Lakewood business and individual, Jack Phillips.

The high court in the Masterpiece Bakeshop case narrowly ruled in a 7–2 decision, the Colorado Civil Rights Commission had not acted employing religious neutrality. In the decision Associate Justice Anthony Kennedy, writing for the court majority on Monday, said it is “unexceptional” that Colorado law “can protect gay persons in acquiring products and services on the same terms and conditions that are offered to other members of the public,” but at the same time, “the law must be applied in a manner that is neutral toward religion.”

The high court however did not rule on the broader intersection of anti-discrimination laws, free exercise of religion, and freedom of speech, and whether a business can invoke religious objections to refuse service to LGBTQ people.

In a statement the ADF’s senior counsel, John Bursch noted that the group would appeal Monday’s ruling. “The government should never force creative professionals to promote a message or cause with which they disagree. That is quintessential free speech and artistic freedom,” Bursch said.

“This really isn’t about cake or websites or flowers,” Lambda Legal senior counsel Jennifer C. Pizer said in a statement. “It’s about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals and public humiliation in countless places – from fertility clinics to funeral homes and everywhere in between.”

Lambda Legal, is a legal group that fights for the civil rights of LGBTQ people and had submitted a brief supporting the state’s anti-discrimination law in the case.

Colorado Solicitor General Eric Olson questioned whether Smith should even be allowed to challenge the law since she had not started offering wedding websites yet, the Associated Press reported.

But if she did, Olson said, her argument would mean she would refuse to create a website for a hypothetical same-sex couple named Alex and Taylor but agree to make the same one for an opposite-sex couple with the same names. He said that would be discrimination under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation.

Judge Mark Beck Briscoe wrote in Monday’s majority opinion (303 Creative, et al. v. Elenis, et al.) that “we must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, `essential’ to our democratic ideals.”

In his dissent, Chief Judge Timothy Tymkovich wrote that “this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.”

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National

Results from key Tuesday primary races

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Democratic State Sen. Scott Wiener (Photo courtesy of Scott Wiener)

State officials in California had not called the governor’s race as of Wednesday morning but Republican Steve Hilton and Democrat Xavier Becerra appear likely to advance to the general election. 

The race for governor has been scrambled several times after Kamala Harris opted not to run, Rep. Eric Swalwell dropped out after sexual misconduct allegations surfaced, and Rep. Katie Porter’s campaign fizzled. Becerra would be the state’s first Latino governor since 1875 if elected. Hilton was endorsed by President Trump. 

In the Los Angeles mayor’s race, the AP declared that incumbent Mayor Karen Bass will advance to the Nov. 3 runoff while former reality TV star Spencer Pratt and LA Council member Nithya Raman were competing for second place. California is notoriously slow in counting ballots and only about half of the results were available by Wednesday morning.

In San Francisco, Democratic State Sen. Scott Wiener advanced to the general election in November, besting Supervisor Connie Chan, who was endorsed by House Speaker Emerita Nancy Pelosi. Pelosi is retiring from Congress after nearly 40 years in the House.

In Iowa, Democratic state Rep. Josh Turek won the primary for an open U.S. Senate seat, defeating state Sen. Zach Wahls. Turek will face Rep. Ashley Hinson, who won the GOP primary with President Donald Trump’s endorsement, in the general election.  

The Iowa seat is open because Sen. Joni Ernst (R) decided not to seek re-election. The primary was closely watched by LGBTQ advocates because Wahls rose to national prominence after a speech he made defending marriage equality went viral in 2011. Wahls was raised by a lesbian couple. 

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National

White House Correspondents’ Dinner rescheduled after shooting

‘We will not allow an act of violence to have the last word’

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The scene inside April’s White House Correspondents’ Dinner after shots rang out. (Washington Blade photo by Joe Reberkenny)

The White House Correspondents’ Association announced on Tuesday that it has rescheduled its annual dinner for July 24 after the April event was halted when gunshots rang out at the Washington Hilton.

Cole Allen, 31, is charged with the attempted assassination of President Trump, who was in the ballroom at the time of the incident. One Secret Service officer was wounded in the attack. Officers stopped Allen before he could enter the ballroom where 2,500 journalists and politicos were having dinner and waiting for Trump to speak. It was Trump’s first time attending as president.

“We will not allow an act of violence to have the last word, especially during a year when we are reflecting on the 250th anniversary of America and everything we stand for,” said WHCA President Weijia Jiang in a statement to members. 

She did not announce further details, including venue and ticketing. 

Washington Blade White House reporter Joe Reberkenny was in the audience when shots were fired and reported live on social media from the scene.  

This post will be updated as more details are announced.

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Federal Government

Advocates push back on proposed FCC warning labels

New rating system public notice seeking comments issued on April 22

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(Photo by REDPIXEL.PL/Bigstock)

The Federal Communications Commission is considering a new rating system that would require a warning label to appear before any television content that includes LGBTQ characters.

On April 22, the FCC issued a public notice asking Americans to submit comments on whether the TV Oversight Management Board should create new TV ratings to alert viewers to “transgender and gender nonbinary programming” and “the discussion or promotion of gender identity themes.”

This proposed warning would appear before content, similar to warnings that explain a program contains sexual content, drug use, or violence — categories that Congress explicitly included in the Telecommunications Act of 1996 on the grounds of obscenity and violence that some parents “believe is harmful to their children.”

The public notice says that “recently, parents have raised concerns that controversial gender identity issues are being included or promoted in children’s programs without providing any disclosure or transparency to parents.”

It goes on to say that not having a warning for trans and nonbinary people is “undermining the ability of parents to make informed choices for their families.”

LGBT Tech is an organization that works to provide LGBTQ representation in mainstream media or entertainment. The group notes 81 percent of trans respondents it surveyed said these representations had a positive impact on them discovering or learning about their identity.

“These numbers reflect a basic truth: for many people, and especially young people, seeing LGBTQ+ lives represented in ordinary media is not harmful. It is formative, affirming, and often lifesaving.”

Since the public notice’s publication, more than 40 organizations have come out against the proposed alert.

GLAAD President Sarah Kate Ellis issued a statement in May on the proposal, highlighting what she described as a concerted effort by the Trump-Vance administration to other trans and nonbinary people.

“The FCC does not set TV ratings, but under this administration the FCC has repeatedly tried to control what Americans can see on their own televisions. This government overreach is dangerous and a threat to our community and our democracy,” Ellis said.

“LGBTQ+ people and their families deserve to see their lives represented in the media they watch. And media companies must have the freedom to create programming that appeals to their viewers and subscribers without interference from a government pursuing its own anti-LGBTQ+ political agenda.”

Human Rights Campaign President Kelley Robinson pointed out that this is an act of politically motivated policy, not one based on any rhyme or reason.

“LGBTQ+ stories matter and deserve to be told, seen, and heard,” Robinson said. “The Trump administration does not get to use the FCC to try and erase us simply because they want to pretend to live in a world where we don’t exist. This is a brazen form of political interference that will hurt the ability of all people to appreciate, understand, and learn about the world and people around them.”

Brian Dittmeier, director of LGBTQI+ equality at the National Women’s Law Center Action Fund, echoed Robinson’s concerns that this is attempted censorship for the sake of political gain.

“The FCC is cloaking itself in purported concern for parents in an attempt to censor content, intimidate industry, and silence depictions of our trans siblings and neighbors,” Dittmeier wrote. “The FCC is overstepping its authority to undermine the existing ratings system, which is well understood by parents and enjoys broad public support. The FCC’s presumption that it knows better does not reflect parents’ priorities and reeks of government overreach.”

PFLAG National Vice President of Policy and Government Affairs Diego Sanchez said this is federal government overreach into censorship — something the First Amendment protects against.

“The FCC has given us yet another example of what ‘small government’ means: small enough to fit in your living room; to interrupt family movie night; small enough to make home feel unsafe,” Sanchez said. “Parents and families with transgender loved ones in particular know too well how big government actions impact their families directly, because they feel those impacts before everyone else.”

This proposed warning follows a slew of other federal actions targeting trans people in America, including Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which mandated that only sex assigned at birth be used on federal government documents regardless of gender identity, as well as broad-based restrictions on gender-affirming care, particularly for trans minors.

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