U.S. Supreme Court
Experts weigh in on what’s next after 303 Creative ruling
Sources find reasons to be apprehensive but also hopeful
Following the U.S. Supreme Court’s ruling on Friday in 303 Creative v. Elenis, three experts connected with the Washington Blade to share their analysis of the case and expectations for what may come after the fallout.
James Dale was the named plaintiff in Boy Scouts of America v. Dale, a case challenging the organization’s policy of excluding homosexuals from its membership that was decided by the Supreme Court in 2000. The majority opinion in 303 Creative, authored by Justice Neil Gorsuch and joined by the Court’s five other conservative justices, cited Dale’s case dozens of times.
Beth Littrell is the Southern Poverty Law Center’s senior attorney, having previously worked on litigation teams at Lambda Legal and the ACLU, including on a case that Justice Sonia Sotomayor highlighted in her widely read dissenting opinion in the 303 Creative case.
Christopher Cooper is a civil rights attorney who serves as director of legal affairs and legislative initiatives at the Rainbow Youth Project, having previously worked at the U.S. Department of Justice’s Civil Rights Division.
All objected to Friday’s ruling that plaintiff Lori Smith may on First Amendment grounds refuse to provide services requested in connection with same-sex weddings, notwithstanding Colorado’s law prohibiting businesses from discrimination on the basis of sexual orientation. The sources fear future cases will seek to widen the aperture for the types of businesses that may claim similar exemptions on the basis of their proprietors’ faith beliefs.
While unsurprising given the Court’s conservative supermajority, Littrell said the decision was nevertheless “a kick in the teeth.”
“Public accommodation laws play such a critical role in ensuring that vulnerable populations have access to the marketplace,” she said, adding that they are “only a small part way of getting the country to some modicum of equal justice, equality, for vulnerable populations.”
The majority opinion in 303 Creative takes pains to distinguish some services provided by Smith’s business as constituting original works of artistic expression, but when it comes to the applicability of its ruling, Littrell said the Court did not make “that distinction very clear.”
“And more than that,” she said, “I don’t know that there is a distinction here.”
“The way public accommodation laws generally work is there is no distinction — that you open your doors, and where there are anti-discrimination laws, you have to abide by them,” Littrell said.
With this majority opinion, the conservatives have “basically said that you have a constitutional right to discriminate if you’re doing anything” that constitutes “artistic or other expression,” Cooper said.
The ruling will be followed by “a lot of litigation,” he added.
Littrell said she has “some realistic fears that it’s opening the door — that [businesses] that offer pure speech will be the first shoe to fall and that there will be cases to follow” as well as instances in which firms discriminate against or otherwise turn away customers “under the justification that there’s either some expressive elements to the services that are being requested or other individual liberties that are protected by the Constitution.”
“I have no doubt that conservatives and people who want to be able to discriminate against those they disagree with, or people they don’t want to associate with, will attempt to push the boundaries” of the ruling, Littrell said.
“If we crack the door on allowing discrimination of any type against any protected class of people,” Cooper warned, “someone will open the door wide open.”
“Many religious groups do not believe in inter-racial, inter-faith, or even divorcee marriages,” he said, “And keep in mind that any moral or ethical belief about what is ‘right and wrong’ that are sincerely held with the strength of traditional religious views may meet the definition of a sincerely held religious belief.
The three sources also noted unresolved questions around whether the plaintiff suffered legally cognizable injury or received even one request to render services that would constitute speech about same-sex marriage with which she disagrees.
Smith was represented by the right-wing impact litigation group Alliance Defending Freedom, which is deemed an anti-LGBTQ hate group by the Southern Poverty Law Center.
“I always thought the Supreme Court took cases based on real facts and real people, not ones that a right wing group like the Alliance Defending Freedom creates out of thin air to justify future discrimination,” said Dale.
Anti-LGBTQ forces on the right, whether they endeavor to pass hateful bills in the legislatures or create them with the courts, have been known to rely on “myths and misconceptions” and have demonstrated they will “stoop to ginning up a case,” Littrell said.
“You know,” Cooper said, Gorsuch tells Justice Sotomayor “‘You’re imagining things and creating scenarios that this does not cover,'” but at the same time, his majority opinion is “basically base[d]” on “a scenario that may or may not have happened.”
Reporting in the New Republic has cast doubt on the veracity of a document filed by Smith and her counsel, ADF CEO Kristen Waggoner, that purports to show a request filed by a prospective client for services from 303 Creative in connection with a same-sex wedding.
Loss offers reasons to be hopeful
“I’m hopeful that we’re marching in the right direction, that there’s some swings in the pendulum — and we’re certainly experiencing some backsliding — but that in the end this decision will be cabined in some way,” Littrell said.
Sotomayor’s powerful dissent notes that with 303 Creative, “a business open to the public” has been granted “a constitutional right to refuse to serve members of a protected class” for the first time in the Court’s history.
She detailed some of the ways in which LGBTQ people have been harmed by the sting of discrimination over the years, including with an anecdote from a real case filed in 2017.
“Imagine a funeral home in rural Mississippi agrees to transport and cremate the body of an elderly man who has passed away, and to host a memorial lunch,” Sotomayor wrote in her dissent, but “Upon learning that the man’s surviving spouse is also a man, however, the funeral home refuses to deal with the family.”
“Grief stricken, and now isolated and humiliated, the family desperately searches for another funeral home that will take the body,” she wrote. “They eventually find one more than 70 miles away. This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species.”
Littrell, who brought that case against the funeral home when practicing at Lambda Legal, said it was remarkable to see the Supreme Court, with a “strong and powerful, big picture” dissenting opinion, “identify a case that was a fight worth fighting.”
Sotomayor had signaled “That was a story worth telling,” Littrell said, “Even though in the end, you know, we didn’t get a precedent out of the case,” which was settled.
Referring to 303 Creative, she said, “As we lose cases that feel so devastating,” it is important to remember “sometimes you lose forward” because they can usher in a change in the tide of public opinion.
Dale said his case followed a similar trajectory. As a young Scoutmaster, he had spoken at a conference about the importance of educators mentoring LGBTQ teens, which, when it appeared in the newspaper, prompted leadership to instruct Dale to cut all ties with the Scouts.
“By five-four decision, the conservative majority on the court gave the Boy Scouts a First Amendment shield, protecting them from New Jersey’s gay rights law, which is kind of what we see going on here,” Dale told the Blade.
While the Scouts won, Dale said it was a “Pyrrhic victory.”
“Ultimately, over the course of, you know, 10, 15 years, the Boy Scouts lost a colossal amount of membership,” he said. “They lost money, they lost funders, they lost the public support and goodwill that essentially made them the Boy Scouts of America.”
“As a result of their victory in the Supreme Court, they had that devastating backlash,” Dale said.
“The takeaway I have now, as we had this kind of narrow defeat in the Supreme Court with this [303] Creative decision: the Supreme Court isn’t the final say,” Dale said.
“That’s not where it ends. It ends with the people and ends with the American public and convincing our families our neighbors our bosses, the people that surround us about why this is wrong.”
“The loss that I experienced was a catalyst for something wonderful,” Dale said. “It was a catalyst for making people speak out and stand up for what they believe in” — putting everyone on the record about where they stand when it comes to anti-LGBTQ discrimination.”
U.S. Supreme Court
Activists rally for Andry Hernández Romero in front of Supreme Court
Gay asylum seeker ‘forcibly deported’ to El Salvador, described as political prisoner
More than 200 people gathered in front of the U.S. Supreme Court on Friday and demanded the Trump-Vance administration return to the U.S. a gay Venezuelan asylum seeker who it “forcibly disappeared” to El Salvador.
Lindsay Toczylowski, president of the Immigrant Defenders Law Center, a Los Angeles-based organization that represents Andry Hernández Romero, is among those who spoke alongside U.S. Rep. Mark Takano (D-Calif.) and Human Rights Campaign Campaigns and Communications Vice President Jonathan Lovitz. Sarah Longwell of the Bulwark, Pod Save America’s Jon Lovett, and Tim Miller are among those who also participated in the rally.
“Andry is a son, a brother. He’s an actor, a makeup artist,” said Toczylowski. “He is a gay man who fled Venezuela because it was not safe for him to live there as his authentic self.”
(Video by Michael K. Lavers)
The White House on Feb. 20 designated Tren de Aragua, a Venezuelan gang, as an “international terrorist organization.”
President Donald Trump on March 15 invoked the Alien Enemies Act of 1798, which the Associated Press notes allows the U.S. to deport “noncitizens without any legal recourse.” The Trump-Vance administration subsequently “forcibly removed” Hernández and hundreds of other Venezuelans to El Salvador.
Toczylowski said she believes Hernández remains at El Salvador’s Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT. Toczylowski also disputed claims that Hernández is a Tren de Aragua member.
“Andry fled persecution in Venezuela and came to the U.S. to seek protection. He has no criminal history. He is not a member of the Tren de Aragua gang. Yet because of his crown tattoos, we believe at this moment that he sits in a torture prison, a gulag, in El Salvador,” said Toczylowski. “I say we believe because we have not had any proof of life for him since the day he was put on a U.S. government-funded plane and forcibly disappeared to El Salvador.”
“Andry is not alone,” she added.
Takano noted the federal government sent his parents, grandparents, and other Japanese Americans to internment camps during World War II under the Alien Enemies Act. The gay California Democrat also described Hernández as “a political prisoner, denied basic rights under a law that should have stayed in the past.”
“He is not a case number,” said Takano. “He is a person.”
Hernández had been pursuing his asylum case while at the Otay Mesa Detention Center in San Diego.
A hearing had been scheduled to take place on May 30, but an immigration judge the day before dismissed his case. Immigrant Defenders Law Center has said it will appeal the decision to the Board of Immigration Appeals, which the Justice Department oversees.
“We will not stop fighting for Andry, and I know neither will you,” said Toczylowski.
Friday’s rally took place hours after Attorney General Pam Bondi said Kilmar Abrego Garcia, a Maryland man who the Trump-Vance administration wrongfully deported to El Salvador, had returned to the U.S. Abrego will face federal human trafficking charges in Tennessee.
U.S. Supreme Court
Supreme Court allows Trump admin to enforce trans military ban
Litigation challenging the policy continues in the 9th Circuit
The U.S. Supreme Court on Tuesday allowed the Trump-Vance administration to enforce a ban on transgender personnel serving in the U.S. Armed Forces pending the outcome of litigation challenging the policy.
The brief order staying a March 27 preliminary injunction issued by the U.S. District Court for the Western District of Washington notes the dissents from liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
On the first day of his second term, President Donald Trump issued an executive order requiring Secretary of Defense Pete Hegseth to effectuate a ban against transgender individuals, going further than efforts under his first administration — which did not target those currently serving.
The DoD’s Feb. 26 ban argued that “the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.”
The case challenging the Pentagon’s policy is currently on appeal before the U.S. Court of Appeals for the Ninth Circuit. The lead plaintiff is U.S. Navy Commander Emily Shilling, who is joined in the litigation by other current transgender members of the armed forces, one transgender person who would like to join, and a nonprofit whose members either are transgender troops or would like to be.
Lambda Legal and the Human Rights Campaign Foundation, both representing the plaintiffs, issued a statement Tuesday in response to the Supreme Court’s decision:
“Today’s Supreme Court ruling is a devastating blow to transgender servicemembers who have demonstrated their capabilities and commitment to our nation’s defense.
“By allowing this discriminatory ban to take effect while our challenge continues, the Court has temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice.
“Transgender individuals meet the same standards and demonstrate the same values as all who serve. We remain steadfast in our belief that this ban violates constitutional guarantees of equal protection and will ultimately be struck down.”
U.S. Solicitor General D. John Sauer noted that courts must show “substantial deference” to DoD decision making on military issues.
“The Supreme Court’s decision to allow the military ban to go into effect is devastating for the thousands of qualified transgender servicemembers who have met the standards and are serving honorably, putting their lives on the line for their country every single day,” said GLAD Law Senior Director of Transgender and Queer Rights Jennifer Levi. “Today’s decision only adds to the chaos and destruction caused by this administration. It’s not the end of the case, but the havoc it will wreak is devastating and irreparable. History will confirm the weight of the injustice done today.”
“The Court has upended the lives of thousands of servicemembers without even the decency of explaining why,” said NCLR Legal Director Shannon Minter. “As a result of this decision, reached without benefit of full briefing or argument, brave troops who have dedicated their lives to the service of our country will be targeted and forced into harsh administrative separation process usually reserved for misconduct. They have proven themselves time and time again and met the same standards as every other soldier, deploying in critical positions around the globe. This is a deeply sad day for our country.”
Levi and Minter are the lead attorneys in the first two transgender military ban cases to be heard in federal court, Talbott v. Trump and Ireland v. Hegseth.
U.S. Rep. Mark Takano (D-Calif.) issued a statement on behalf of the Congressional Equality Caucus, where he serves as chair.
“By lifting the lower court’s preliminary injunction and allowing Trump to enforce his trans troop ban as litigation continues, the Supreme Court is causing real harm to brave Americans who simply want to serve their nation in uniform.
“The difference between Donald Trump, a draft dodger, and the countless brave Americans serving their country who just happen to be trans couldn’t be starker. Let me be clear: Trump’s ban isn’t going to make our country safer—it will needlessly create gaps in critical chains of military command and actively undermine our national security.
“The Supreme Court was absolutely wrong to allow this ban to take effect. I hope that lower courts move swiftly so this ban can ultimately be struck down.”
SPARTA Pride also issued a statement:
“The Roberts Court’s decision staying the preliminary injunction will allow the Trump purge of transgender service members from the military to proceed.
“Transgender Americans have served openly, honorably, and effectively in the U.S. Armed Forces for nearly a decade. Thousands of transgender troops are currently serving, and are fully qualified for the positions in which they serve.
“Every court up to now has found that this order is unconstitutional. Nevertheless, the Roberts Court – without hearing any evidence or argument – decided to allow it to go forward. So while the case continues to be argued, thousands of trans troops will be purged from the Armed Forces.
“They will lose their jobs. They will lose their commands, their promotions, their training, pay and benefits, and time. Their units will lose key players; the mission will be disrupted. This is the very definition of irreparable harm.”
Imara Jones, CEO of TransLash Media, issued the following statement:
“The Supreme Court’s decision to uphold Trump’s ban on transgender soldiers in the military, even as the judicial process works its way through the overall question of service, signals that open discrimination against trans people is fair game across American society.
“It will allow the Trump Administration to further advance its larger goal of pushing trans people from mainstream society by discharging transgender military members who are currently serving their country, even at a time when the military has struggled recently to meet its recruiting goals.
“But even more than this, all of my reporting tells me that this is a further slide down the mountain towards authoritarianism. The hard truth is that governments with authoritarian ambitions have to separate citizens between who is worthy of protection and who’s not. Trans people are clearly in the later category. And this separation justifies the authoritarian quest for more and more power. This appears to be what we are witnessing here and targeting trans people in the military is just a means to an end.”
U.S. Supreme Court
Supreme Court hears oral arguments in LGBTQ education case
Mahmoud v. Taylor plaintiffs argue for right to opt-out of LGBTQ inclusive lessons
The U.S. Supreme Court on Tuesday heard oral arguments in Mahmoud v. Taylor, a case about whether Montgomery County, Md., public schools violated the First Amendment rights of parents by not providing them an opportunity to opt their children out of reading storybooks that were part of an LGBTQ-inclusive literacy curriculum.
The school district voted in early 2022 to allow books featuring LGBTQ characters in elementary school language arts classes. When the county announced that parents would not be able to excuse their kids from these lessons, they sued on the grounds that their freedom to exercise the teachings of their Muslim, Jewish, and Christian faiths had been infringed.
The lower federal courts declined to compel the district to temporarily provide advance notice and an opportunity to opt-out of the LGBTQ inclusive curricula, and the 4th U.S. Circuit Court of Appeals determined that the parents had not shown that exposure to the storybooks compelled them to violate their religion.
“LGBTQ+ stories matter,” Human Rights Campaign President Kelley Robinson said in a statement Tuesday. “They matter so students can see themselves and their families in the books they read — so they can know they’re not alone. And they matter for all students who need to learn about the world around them and understand that while we may all be different, we all deserve to be valued and loved.”
She added, “All students lose when we limit what they can learn, what they can read, and what their teachers can say. The Supreme Court should reject this attempt to silence our educators and ban our stories.”
GLAD Law, NCLR, Family Equality, and COLAGE submitted a 40-page amicus brief on April 9, which argued the storybooks “fit squarely” within the district’s language arts curriculum, the petitioners challenging the materials incorrectly characterized them as “specialized curriculum,” and that their request for a “mandated notice-and-opt-out requirement” threatens “to sweep far more broadly.”
Lambda Legal, the Leadership Conference on Civil and Human Rights, PFLAG, and the National Women’s Law Center announced their submission of a 31-page amicus brief in a press release on April 11.
“All students benefit from a school climate that promotes acceptance and respect,” said Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal. “Ensuring that students can see themselves in the curriculum and learn about students who are different is critical for creating a positive school environment. This is particularly crucial for LGBTQ+ students and students with LGBTQ+ family members who already face unique challenges.”
The organizations’ brief cited extensive social science research pointing to the benefits of LGBTQ-inclusive instruction like “age-appropriate storybooks featuring diverse families and identities” benefits all students regardless of their identities.
Also weighing in with amici briefs on behalf of Montgomery County Public Schools were the National Education Association, the ACLU, and the American Psychological Association.
Those writing in support of the parents challenging the district’s policy included the Center for American Liberty, the Manhattan Institute, Parents Defending Education, the Alliance Defending Freedom, the Trump-Vance administration’s U.S. Department of Justice, and a coalition of Republican members of Congress.
South African activists demand action to stop anti-LGBTQ violence
Gay pharmacist’s murder sparks outrage in Chile
D.C. police investigating threat of shooting at WorldPride festival
Capitalism, patriarchy, and neocolonialism are repackaging the scramble for Africa
WorldPride wraps up after epic weekend of events
I interviewed Biden in late 2024 and he was attentive, engaged
Delaware Gov. Meyer announces LGBTQ commission
PHOTOS: Capital Pride Honors
U.S. Park Service closes Dupont Circle Park for WorldPride weekend
