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Supreme Court sidesteps major ruling in Masterpiece Cakeshop case

Justices cite hostility to religion by Colorado commission

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The Supreme Court issued a narrow decision for an anti-gay baker in the Masterpiece Cakeshop case. (Washington Blade file photo by Michael Key)

The U.S. Supreme Court sidestepped a major decision in the Masterpiece Cakeshop case, issuing a narrow decision based on the facts of the lawsuit in favor of a Colorado baker sued for refusing to make a wedding cake for a same-sex couple.

In the 7-2 decision written by U.S. Associate Justice Anthony Kennedy, the Supreme Court vacated the decision by the Colorado Court of Appeals against baker Jack Phillips on the basis the state commission handling his case displayed a religious bias against him.

“When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires,” Kennedy writes.

Kennedy concluded his ruling by making clear it provides no precedent for cases in which individuals and businesses assert a First Amendment right to refuse service to same-sex couples, insisting that determination must come at a later time.

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” Kennedy wrote.

As evidence of the Colorado Civil Rights Commission’s hostility toward Phillips’ religious views, Kennedy cites language the commissioners used as they heard the case in 2014, including one commissioner’s words that religious views are “one of the most despicable pieces of rhetoric that people can use.”

During oral arguments in the case before the Supreme Court, Kennedy has expressed concern over these words from the commission, prompting observers to speculate the court might issue a decision punting the case and remanding it for reconsideration without hostility toward religion.

In the decision, Kennedy writes those words from the commissioner demonstrates hostility toward Phillips’ religion both by describing as despicable and by characterizing it as merely rhetorical.

“This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects against discrimination on the basis of religion as well as sexual orientation,” Kennedy wrote.

The decision will likely mean the Colorado Civil Rights Commission will rehear the case, although there’s no reason to think the outcome will be different even if the commissioners approach it differently as advised by Kennedy.

It also means the long-running case against Masterpiece Cakeshop, filed by Charlie Craig and Dave Mullins back in 2012 when Phillips refused to make them a custom-made wedding cake, hasn’t reached its finish line at the Supreme Court and likely will continue to proceed.

After the couple sued six years ago, the Colorado Civil Rights Commission ruled in their favor in 2014 and the Colorado Court of Appeals upheld that decision a year later. Phillips filed a petition before the U.S. Supreme Court to review those rulings, which the Supreme Court accepted last year shortly after the confirmation of U.S. Associate Justice Neil Gorsuch.

Attorneys representing both sides in the case declared victory to some extent, with the American Civil Liberties Union, which represented the couple, insisting non-discrimination principles were upheld and Alliance Defending Freedom, which represented Phillips, calling the decision a victory for “religious freedom.”

Louise Melling, deputy legal director of the ACLU, said in a statement the Supreme Court essentially punted without making a sweeping decision.

“The court reversed the Masterpiece Cakeshop decision based on concerns unique to the case but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people,” Melling said.

Kristen Waggoner, who argued the case for Phillips before the Supreme Court as senior counsel to Alliance Defending Freedom, said in a statement the ruling was a win for her client.

“Government hostility toward people of faith has no place in our society, yet the state of Colorado was openly antagonistic toward Jack’s religious beliefs about marriage,” Waggoner said. “The court was right to condemn that. Tolerance and respect for good-faith differences of opinion are essential in a society like ours. This decision makes clear that the government must respect Jack’s beliefs about marriage.”

Joining Kennedy in the decision was U.S. Chief Justice John Roberts as well as U.S. Associate Justices Stephen Breyer, Samuel Alito, Elena Kagan, Gorsuch and Clarence Thomas. Dissenting in the ruling was U.S. Associate Justices Ruth Bader Ginsburg, who was joined by U.S. Associate Justice Sonia Sotamayor.

In her dissent, Ginsburg wrote the long process in which the case was reviewed by the Colorado Civil Rights Commission and appealed to the Colorado Court of Appeals should abrogate any concerns about religious liberty.

“I see no reason why the comments of one or two commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins,” Ginsburg writes. “The proceedings involved several layers of independent decision-making, of which the commission was but one.”

The decision means that a final determination from the court on whether individuals and businesses have a First Amendment right to discriminate against same-sex couples may come at a later time. That decision could result from a petition pending before the court in a similar case filed by Arlene’s Flowers, a floral shop in Washington State seeking a First Amendment right to refuse service to same-sex weddings.

Many predict Kennedy will step down from the bench at the end of this Supreme Court term. If that happens, the Supreme Court could issue a decision that makes precedent on this issue with whomever President Trump appoints to replace Kennedy. That justice could be an anti-LGBT pick as opposed to Kennedy, who has authored major gay rights decisions.

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Iowa

Iowa State Appeal Board settles lawsuits by anti-LGBTQ religious groups

The Christian groups claimed the university had violated their constitutional rights to free speech and the free exercise of religion

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The University of Iowa during Homecoming (Photo Credit: The University of Iowa)

DES MOINES – The Iowa State Appeal Board, made up of Iowa state Treasurer Michael Fitzgerald, Auditor Rob Sand and Department of Management Director Kraig Paulsen, approved disbursing nearly $2 million in state funds to settle two Federal lawsuits brought against the University of Iowa in 2017 after a religious group denied an openly gay student a leadership role. 

According to the Associated Press in a U.S. News article Monday, lawyers for the student group Business Leaders in Christ were awarded $1.37 million in fees and costs for litigating their case. A second student group, Intervarsity Christian Fellowship, won their federal court case and will be paid $20,000 in damages and about $513,000 in attorney fees.

The groups claimed the university had violated their constitutional rights to free speech and the free exercise of religion.

The monetary amounts were negotiated between the university and the plaintiffs in both cases and approved by a federal judge. Monday’s approval by the State Appeal Board authorizes the state to make the payments the AP reported.

In March of this past Spring, the 8th U.S. Circuit Court of Appeals ruled in favor of Business Leaders in Christ after the University of Iowa had ordered group was dismantled in 2017 after claiming the student group violated its Human Rights Policy.

As reported by The Daily Iowan, Marcus Miller, a UI sophomore at the time, filed a discrimination complaint against the Business Leaders in Christ after the group  revoked a leadership position from Miller upon finding out his sexual orientation.

A new law that requires state universities and community colleges to adopt policies that prohibit them from denying benefits to a student organization based on the viewpoint of the group was implemented in 2019.

“In addition, a public institution of higher education shall not deny any benefit or privilege to a student organization based on the student organization’s requirement that the leaders of the student organization agree to and support the student organization’s beliefs, as those beliefs are interpreted and applied by the organization, and to further the student organization’s mission,” the law reads.

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New York

New state charges against man who threatened LGBTQ+ New Yorkers

Fehring is being charged with criminal mischief and grand larceny as a hate crime in the Sayville, Long Island case

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Los Angeles Blade file photo by @strekoza.nyc

RIVERHEAD, Ny. – The man arrested by FBI agents on Monday charged in U.S. District Court for the Eastern District of New York for mailing letters threatening to assault, shoot, and bomb LGBTQ+ affiliated individuals, organizations, and businesses, was arrested Tuesday on state charges.

Tri-state news outlet News 12 New York reported that Robert Fehring, 74, a resident of Bayport, New York on Long Island, surrendered to Suffolk County police detectives accused of stealing almost two dozen pride flags back in July from Long Railroad Avenue in Sayville.

Eileen Tyznar has organized the LGBTQ parade for the past three years in Sayville. She saysshe lived in fear and would constantly get threatening letters. She is now relieved Fehring was arrested she told News12.

The stolen pride flags inside his home were discovered while executing the Federal search warrant, Suffolk police said.

On November 18, 2021, members of the FBI’s Civil Rights Squad and the New York Joint Terrorism Task Force executed a search warrant at Fehring’s home in Bayport, New York, and recovered photographs from a June 2021 Pride event in East Meadow, New York, two loaded shotguns, hundreds of rounds of ammunition, two stun guns, and a stamped envelope addressed to an LGBTQ+ affiliated attorney containing the remains of a dead bird. 

Fehring is being charged with criminal mischief and grand larceny as a hate crime in the Sayville case.

Robert Fehring, (right) with his attorney Glenn Obedin Tuesday
(Screenshot via News 12 New York)

In the Federal criminal complaint Fehring is accused of sending, according to the complaint, include one this year threatening to shoot a high-powered rifle at a Long Island Pride event in June; another warning a local Chamber of Commerce member that ambulances would be needed if the group allowed an L.G.B.T.Q. event to proceed; and a third describing a Brooklyn barbershop as a “perfect target for a bombing.”

Since at least 2013, Fehring had been sending individuals associated with the LGBTQ+ community letters in which he threatened violence, including threatening the use of firearms and explosives. 

In the criminal complaint and affidavit for arrest, federal prosecutors allege that one letter threatened that there would “be radio-cont[r]olled devices placed at numerous strategic places” at the 2021 New York City Pride March with “firepower” that would “make the 2016 Orlando Pulse Nightclub shooting look like a cakewalk,” referencing the 2016 attack in which 49 persons were killed and dozens wounded at Pulse, a gay nightclub in Orlando, Florida.

If convicted, Fehring, whom media outlets in New York identified as a retired high school teacher, band director and track coach, faces up to five years in prison.

Court records show that he sued the Suffolk County police unsuccessfully after being taken into custody in 2010 after an off-duty officer saw him hide a shotgun under a raincoat and bring it into a Long Island office building, the New York Times reported.

Gay City News editor  Matt Tracy reported that Fehring appeared in court on December 6 before Magistrate Judge Steven I. Locke and was released on $100,000 bond. He is restricted to home detention with location monitoring, according to prosecutors. He is not allowed to have any firearms or “destructive devices,” is barred from contacting any of his alleged victims, and cannot go to the places he is said to have targeted.

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District of Columbia

D.C. Trans woman’s killers could be free in 3 years in a plea deal

“A plea bargain from first-degree murder to voluntary manslaughter is a miscarriage of justice”

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Deeniquia ‘Dee Dee’ Dodds was killed on July 4, 2016. (Photo via Facebook)

WASHINGTON – A D.C. LGBTQ anti-violence group will be submitting a community impact statement for a D.C. Superior Court judge scheduled to sentence two men on Dec. 10 for the July 4, 2016, shooting death of transgender woman Deeniquia “Dee Dee” Dodds in a case D.C. police listed as a hate crime.

Stephania Mahdi, chair of the D.C. Center for the LGBT Community’s Anti-Violence Project, told the Washington Blade the project has been in contact with the Office of the U.S. Attorney for D.C., which is prosecuting the case against the two defendants set to be sentenced this week, to arrange for the submission of a statement on the impact the murder of Dodds has had on the community.

The impact statement would also apply to the sentencing of two other men charged in the Dodds murder case who are scheduled to be sentenced on Dec. 20.

The Dec. 10 sentencing for Jolonta Little, 30, and Monte T. Johnson, 25, was set to take place a little over two months after Little and Johnson pleaded guilty on Sept. 30 to a single count of voluntary manslaughter as part of a plea bargain deal offered by prosecutors.

In exchange for the guilty plea for voluntary manslaughter, prosecutors with the U.S. Attorney’s Office agreed to drop the charge of first-degree murder while armed originally brought against the two men. The plea agreement also called for dropping additional charges against them in connection with the Dodds murder, including robbery while armed, possession of a firearm during a crime of violence, and unlawful possession of a firearm.

In addition, the plea agreement includes a promise by prosecutors to ask D.C. Superior Court Judge Milton C. Lee, who is presiding over the case, to issue a sentence of eight years in prison for both men. Under the D.C. criminal code, a conviction on a voluntary manslaughter charge carries a maximum sentence of 30 years in prison.

Johnson has been held without bond for five years and three months since his arrest in the Dodds case in September 2016. Little has been held without bond since his arrest for the Dodds murder in February 2017. Courthouse observers say that judges almost always give defendants credit for time served prior to their sentencing, a development that would likely result in the two men being released in about three years.

The plea deal for the two men came two and a half years after a D.C. Superior Court jury became deadlocked and could not reach a verdict on the first-degree murder charges against Johnson and Little following a month-long trial, prompting Judge Lee to declare a mistrial on March 6, 2019.

The two other men charged in Dodds’ murder, Shareem Hall, 27, and his brother, Cyheme Hall, 25, accepted a separate plea bargain offer by prosecutors shortly before the start of the 2019 trial in which they pled guilty to second-degree murder. Both testified at Johnson and Little’s the trial as government witnesses.

In dramatic testimony, Cyheme Hall told the jury that it was Johnson who fatally shot Dodds in the neck at point blank range after he said she grabbed the barrel of Johnson’s handgun as Johnson and Hall attempted to rob her on Division Ave., N.E., near where she lived. Hall testified that the plan among the four men to rob Dodds did not include the intent to kill her.

In his testimony, Hall said that on the day of Dodd’s murder, he and the other three men made plans to commit armed robberies for cash in areas of D.C. where trans women, some of whom were sex workers, congregated. He testified that the four men got into a car driven by Little and searched the streets for victims they didn’t expect to offer resistance.

D.C. police and the U.S. Attorney’s office initially designated the murder charge against Little and Johnson as an anti-trans hate crime offense based on findings by homicide detectives that the men were targeting trans women for armed robberies. But during Johnson and Little’s trial, Judge Lee dismissed the hate crime designation at the request of defense attorneys on grounds that there was insufficient evidence to support a hate crime designation.

At the request of prosecutors, Judge Lee scheduled a second trial for Johnson and Little on the murder charge for Feb. 25, 2020. But court records show the trial date was postponed to June 22, 2020, and postponed several more times – to Jan 11, 2021, and later to Feb. 17, 2022, due to COVID-related restrictions before the plea bargain offer was agreed to in September of this year.  The public court records do not show why the trial was postponed the first few times prior to the start of COVID restrictions on court proceedings.

Legal observers have said long delays in trials, especially murder trials, often make it more difficult for prosecutors to obtain a conviction because memories of key witnesses sometimes become faulty several years after a crime was committed.

“The D.C. Anti-Violence Project is disappointed to hear about the unfortunate proceedings in the case to bring justice for Dee Dee Dodds,” Mahdi, the Anti-Violence Project’s chair, told the Blade in a statement.

“A plea bargain from first-degree murder to voluntary manslaughter as well as a reduction of years in sentencing from 30 to 8 communicates not only a miscarriage of justice, but a message of penalization for victims who attempt to protect themselves during a violent assault,” Mahdi said. “The continual impact of reducing the culpability of perpetrators who target members of specifically identified communities sends a malicious message to criminals that certain groups of people are easier targets with lenient consequences,” she said.

“As a result of this pattern, the D.C. community has failed to defend the life and civil rights of Dee Dee Dodds and leaves criminally targeted LGBTQ+ community and other cultural identity communities critically undervalued by stewards of justice in the nation’s capital,” Mahdi concluded.  

William Miller, a spokesperson for the U.S. Attorney’s Office, has declined to disclose the reason why prosecutors decided to offer Johnson and Little the plea bargain deal rather than petition the court for a second trial for the two men on the first-degree murder charge.

Attorneys familiar with cases like this, where a jury becomes deadlocked, have said prosecutors sometimes decide to offer a plea deal rather than go to trial again out of concern that another jury could find a defendant not guilty on all charges.

During the trial, defense attorneys told the jury that the Hall brothers were habitual liars and there were inconsistencies in their testimony. They argued that the Halls’ motives were aimed strictly at saying what prosecutors wanted them to say so they could get off with a lighter sentence.

The two prosecutors participating in the trial disputed those claims, arguing that government witnesses provided strong evidence that Johnson and Little should be found guilty of first-degree murder and other related charges.

Before the jury announced it was irreconcilably deadlocked on the murder charges, the jury announced it found Little not guilty of seven separate counts of possession of a firearm during a crime of violence and found Johnson not guilty of five counts of possession of a firearm during a crime of violence.

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