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The Pendulum Swings · Hate State

• 0:00
  SPEAKER_11: Brianna Tettone could make history in Colorado.
• 0:02
  SPEAKER_12: She is seeking to become the first openly transgender member of the state legislature.
• 0:07
  SPEAKER_11: It was a Republican seat, so it was an uphill battle, and that was what a lot of the political insiders were doubtful that I would ever pull it off.
• 0:15
  SPEAKER_11: And I was doing an interview, and then I got a call from my opponent conceding during the interview.
• 0:22
  SPEAKER_11: Which was pretty interesting.
• 0:24
  SPEAKER_11: It's like I gotta take this call real quick.
• 0:26
  SPEAKER_11: It's my opponent conceding.
• 0:29
  SPEAKER_11: I never saw the look on my face, but I think I know what it looked like.
• 0:32
  SPEAKER_13: In 2018, Brianna Titone became the first openly transgender state legislator in Colorado, and the fourth in the nation.
• 0:40
  SPEAKER_12: And that felt like such a big election in Colorado because remember, that was also the same year Jared Polis was elected governor of Colorado.
• 0:50
  SPEAKER_12: So you've got our first trans lawmaker and our first openly gay governor.
• 0:56
  SPEAKER_13: Yeah, first gay man elected governor in the whole country, actually.
• 1:01
  SPEAKER_13: And Brianna Titone flipped that seat from Republican to Democrat as a trans woman.
• 1:07
  SPEAKER_12: You might be wondering how this happened since last episode we left Colorado becoming the hate state in the 90s.
• 1:14
  SPEAKER_12: But by 2018, the pendulum of LGBTQ rights in America had swung in the direction of progress.
• 1:22
  SPEAKER_12: But it kept on swinging.
• 1:31
  SPEAKER_13: And I'm Anne Marie Awad, and this is Hate State, a series about the two Colorados that have been battling it out over LGBTQ rights for almost half a century, and how our state is still a testing ground for far-right legislation across the country.
• 1:46
  SPEAKER_12: That's right.
• 1:47
  SPEAKER_12: And last episode, we dug into Colorado's 1992 Amendment 2, and its ripple effects are still felt today.
• 1:55
  SPEAKER_12: As we record this, the midterm elections are coming up, and Colorado's ballots include two anti-trans measures that voters will have to decide on.
• 2:04
  SPEAKER_13: And Colorado is not alone.
• 2:06
  SPEAKER_13: At least four other states are putting similar ballot measures in front of voters this year.
• 2:10
  SPEAKER_13: The pendulum swings again, still.
• 2:14
  SPEAKER_13: But back to 1992, all eyes were on Colorado and what would happen to its LGBTQ population if Amendment 2 was left unchecked.
• 2:23
  SPEAKER_12: Anti-gay movements in other states were already copying down the playbook and hoping if Amendment 2 stuck, their actions had a chance of sticking to.
• 2:31
  SPEAKER_13: Let's rewind to the run-up to that election and go back to somebody we met at the end of the last episode, Mary Celeste.
• 2:38
  SPEAKER_02: One Sunday morning when I was reading the Sunday papers, my partner turned to me and said, What happens if this thing wins or passes?
• 2:49
  SPEAKER_02: I said, Well, we may lose some protective rights.
• 2:51
  SPEAKER_02: She said, Is anybody gonna do anything about it?
• 2:54
  SPEAKER_02: I said, Uh, I don't know.
• 2:56
  SPEAKER_02: She said, Well, you have to do something about it.
• 2:58
  SPEAKER_02: I said, What do you mean I have to do something about it?
• 3:01
  SPEAKER_02: You know, as a lowly general practice attorney, what am I gonna do about it?
• 3:05
  SPEAKER_12: In 1991, Mary happened to be volunteering for Mayor Wellington Webb's Gay and Lesbian Advisory Committee.
• 3:12
  SPEAKER_12: This was the first of its kind for the city and county of Denver.
• 3:16
  SPEAKER_12: Another historic thing Mayor Webb did in 1991 was appoint a I love the sand, a gay liaison for the city.
• 3:23
  SPEAKER_13: A gay liaison.
• 3:25
  SPEAKER_13: And does Denver still have a gay liaison?
• 3:28
  SPEAKER_13: No, I don't think so.
• 3:29
  SPEAKER_13: It's a great band name, though.
• 3:30
  SPEAKER_13: Um, I think the Denver police still has the LGBTQ liaison officer program, but the LGBTQ commission for the city does still exist.
• 3:40
  SPEAKER_12: Okay, well, the gay liaison in 1991, his name was Richard Evans, and you're gonna want to remember that name because he comes back later.
• 3:48
  SPEAKER_13: Yes.
• 3:49
  SPEAKER_13: Anyways, so Mary Celeste is pretty plugged into this momentum for gay rights in the 90s, and she knows just who to call.
• 3:56
  SPEAKER_13: Remember Epoch from our last episode?
• 3:59
  SPEAKER_13: The people running a counter campaign to Amendment 2?
• 4:02
  SPEAKER_13: Mary called their lead organizer.
• 4:04
  SPEAKER_02: And so she connected me with the uh campaign attorney at the time, and we found a case out of Riverside, California, where they challenged a city ordinance before it went into effect, and they got an injunction.
• 4:20
  SPEAKER_02: So that gave us the premise for what we were gonna do.
• 4:24
  SPEAKER_02: We were gonna stop it dead in its tracks with an injunction.
• 4:30
  SPEAKER_12: Mary brings the California president to her next gay and lesbian advisory committee meeting, where several committee members decide to help put together the case for an injunction.
• 4:41
  SPEAKER_12: They form the Colorado Legal Initiatives Project, which we'll call Clip.
• 4:45
  SPEAKER_12: I know, it's a lot of acronyms.
• 4:47
  SPEAKER_12: But the clock is ticking in the run-up to the election, so Clip gets to work.
• 4:51
  SPEAKER_12: And so does the other side.
• 4:52
  SPEAKER_12: Colorado for Family Values has been hard at work, amassing support for Amendment 2.
• 4:57
  SPEAKER_13: They're doing focus on the family radio hours, pseudo-scientific pamphlets declaring the dangers of homosexual desire, and sending out mailers from one of Colorado's former U.S.
• 5:08
  SPEAKER_13: senators.
• 5:09
  SPEAKER_13: One of the mailers we got our hands on is seven pages long and goes on about how, quote, militant homosexual activists are, quote, forcing the good citizens of Colorado to condone their aberrant behavior.
• 5:26
  SPEAKER_12: Yikes.
• 5:27
  SPEAKER_12: Well, going back to the case that Mary Celeste and Clip are building, they've assembled a group of plaintiffs, but they need someone to be the lead, the face and name of the case.
• 5:37
  SPEAKER_12: They turn to Mary and ask her if she'd like to step into that role.
• 5:40
  SPEAKER_02: But I said no, I'd rather be the mouthpiece and speak on behalf of the organization.
• 5:46
  SPEAKER_02: So we went with the next in line, who was Richard Evans, who happened to be an employee of the city and county of Denver.
• 5:51
  SPEAKER_02: And he became the now infamous Roma v.
• 5:55
  SPEAKER_02: Evans.
• 5:56
  SPEAKER_02: He's the Evans.
• 5:57
  SPEAKER_12: The gay liaison.
• 5:58
  SPEAKER_12: Yes, the gay liaison.
• 6:00
  SPEAKER_12: So here he is actually talking about Amendment 2 on a public access TV show.
• 6:05
  SPEAKER_01: Aaron Ross Powell The special rights argument that they're proposing is devastating.
• 6:10
  SPEAKER_01: And that people do not understand that equal protection ordinances do nothing more than give gays and lesbians the same remedies that people of color have, that uh that women have.
• 6:25
  SPEAKER_12: So once Clip has Evans, their dream team is in place.
• 6:30
  SPEAKER_12: They even got connected to national organizations like the Lambda Legal Defense Fund and the ACLU to help build their legal arguments.
• 6:39
  SPEAKER_12: All that was left to do was wait for election night.
• 6:43
  SPEAKER_12: Polling up until that election Tuesday showed amendment to losing by 10 points.
• 6:48
  SPEAKER_02: So Clip was feeling pretty confident until I knew we were gonna lose on the day of the vote, and I'll tell you how.
• 6:56
  SPEAKER_13: Okay.
• 6:57
  SPEAKER_13: One more time.
• 6:58
  SPEAKER_13: Election Day 1992.
• 7:01
  SPEAKER_13: Mary heads to her polling place at her local library branch.
• 7:04
  SPEAKER_02: You know how you fill out those ballot things before you get into the voting box, and then you know, you just toss them.
• 7:11
  SPEAKER_02: Well, I pick them up from the floor, looked at them from the garbage, and I looked at them from some that were left behind on a table.
• 7:19
  SPEAKER_02: And I was shocked to see that most of them said yes to Amendment 2.
• 7:24
  SPEAKER_02: And I was in Denver, and I thought, if Denver is saying yes to Amendment 2, we're gonna be in trouble.
• 7:31
  SPEAKER_13: Just a note, in yonder times before electronic voting machines, when everything was on paper, this is normal.
• 7:38
  SPEAKER_13: What Mary's describing is normal.
• 7:40
  SPEAKER_13: She wasn't doing anything untoward.
• 7:42
  SPEAKER_12: No, no, she wasn't.
• 7:44
  SPEAKER_12: But anyways, before Mary got a sneak peek at the way the votes were going, clip members really thought that their injunction prep work would serve as more of a precedent for other states than anything else.
• 7:56
  SPEAKER_12: States like Oregon, for example, which had a more restrictive anti-gay amendment on the ballot that year.
• 8:02
  SPEAKER_02: As we were putting the case together, we thought we would probably never have to use it and we could give what we were put together to Oregon because surely they were gonna lose on that um a constitutional amendment.
• 8:14
  SPEAKER_02: They ended up winning, and we ended up being the ones who needed it and losing uh at the voting booth.
• 8:21
  SPEAKER_13: This point Mary makes about Oregon is important because it shows how this anti-LGBTQ strategy in Colorado is already starting to pop up in other states.
• 8:31
  SPEAKER_13: In CFV's view, this is all going according to plan.
• 8:34
  SPEAKER_13: They even say so in that seven-page mailer I mentioned earlier.
• 8:39
  SPEAKER_13: One part of the mailer talks about how CFV, quote, devised America's first plan to stop special gay rights by voter initiative in Colorado.
• 8:48
  SPEAKER_13: And they called this plan so innovative that other states were beginning to follow.
• 8:53
  SPEAKER_12: And the Oregon Amendment actually goes further into hateful territory than Colorado's does, saying that local governments must actively discourage all homosexual behaviors and never condone or recognize those behaviors.
• 9:07
  SPEAKER_12: The voters in Oregon say no.
• 9:09
  SPEAKER_12: That's a bit too outright homophobic.
• 9:11
  SPEAKER_12: Last episode, we talked about how Colorado's Amendment 2 was worded intentionally vague and confusing, meant to mislead voters.
• 9:19
  SPEAKER_13: And as we know, the confusing phrasing worked.
• 9:22
  SPEAKER_13: After Amendment 2 passes on election night, Mary immediately files the necessary paperwork.
• 9:27
  SPEAKER_02: I sent my assistant in my law firm to go down and file the injunction.
• 9:32
  SPEAKER_12: And the national backlash to Amendment 2 was just as swift as Mary's injunction filing.
• 9:45
  SPEAKER_13: Last episode we mentioned there was this national boycott.
• 9:49
  SPEAKER_13: Well, it was big.
• 9:52
  SPEAKER_13: National conventions that are set to take place in Colorado get pulled.
• 9:56
  SPEAKER_13: Cities like Atlanta and Baltimore, they actually put a ban on all city contracts with Colorado businesses.
• 10:02
  SPEAKER_13: An official organization forms called Boycott Colorado, and it's endorsed by this long, long list of celebrities, including Barbara Streisand.
• 10:12
  SPEAKER_00: There are plenty of us who love the mountains and rivers of that truly beautiful state, but we must now say clearly that the moral climate there is no longer acceptable.
• 10:20
  SPEAKER_13: Whoopi Goldberg, Madonna, Liza Minelli, even the Kedany family is on there.
• 10:26
  SPEAKER_13: Wow.
• 10:27
  SPEAKER_12: America's political dynasty is involved.
• 10:30
  SPEAKER_12: Yeah, and that's how you know it's news.
• 10:33
  SPEAKER_12: Okay.
• 10:33
  SPEAKER_12: Well, it's estimated that Colorado lost about$40 million in tourism revenue over the course of this boycott.
• 10:41
  SPEAKER_12: But Ed, it's harder to determine like how long the tail of that loss goes because who knows how much revenue the state would have pulled in if entertainment deals like Stephen King's The Stand or Frasier stayed in Colorado.
• 10:56
  SPEAKER_13: Frasier?
• 10:57
  SPEAKER_13: Frasier?
• 10:57
  SPEAKER_13: Like the Fraser?
• 10:59
  SPEAKER_13: Like it was going to be based in Colorado?
• 11:01
  SPEAKER_13: Was Niles going to wear Birken stocks?
• 11:03
  SPEAKER_12: Apparently.
• 11:04
  SPEAKER_12: Well, I I don't know about the Birken stocks, but yeah, apparently it was supposed to be set in Denver.
• 11:08
  SPEAKER_12: Kelsey Grammer uh spoke to Vanity Fair in 2018 and said that once Colorado passed this egregious anti-gay amendment, we couldn't, in good conscience, base the show there.
• 11:19
  SPEAKER_12: And we thought Seattle seemed up and coming.
• 11:21
  SPEAKER_12: So Seattle gets that one over Denver, apparently.
• 11:23
  SPEAKER_12: And that's like one of the most memorable shows to come out of the 90s.
• 11:27
  SPEAKER_13: Yeah, yeah, yeah.
• 11:28
  SPEAKER_13: Toss salad and scrambled eggs and all that.
• 11:30
  SPEAKER_13: There's even this boycott on products that come out of Colorado.
• 11:34
  SPEAKER_13: In New York City, gay activists threaten to hold their own version of a Boston Tea Party where they would dump heaps and heaps of Celestial Seasonings herbal tea into the East River because that's a Colorado-based company.
• 11:47
  SPEAKER_13: The tea party is only averted because the CEO of Celestial Seasonings flies to New York to speak with the activists personally.
• 11:55
  SPEAKER_12: I gotta say, this might be one of my favorite discoveries of reporting on this series, just because like the image of a bunch of gay activists in New York City being like, We're gonna dump all of your tea into the river if I loved it.
• 12:09
  SPEAKER_12: Pouring a bunch of sleepy time into the East River.
• 12:12
  SPEAKER_12: Yeah, everyone in New York City was about to get real sleepy.
• 12:15
  SPEAKER_13: Yeah.
• 12:16
  SPEAKER_13: Yeah.
• 12:18
  SPEAKER_13: Amidst all this chaos, Mary Celeste and Clip head to Denver District Court for the first hearing of this official legal battle and make their case for the injunction.
• 12:27
  SPEAKER_02: And the judge who oversaw that was Judge Jeffrey Bayliss.
• 12:32
  SPEAKER_02: Every day we'd show up and, you know, the testimony was taken or whatever, and the galley of the courtroom was always filled with people, even out in the hallways.
• 12:43
  SPEAKER_02: No seats were to be had.
• 12:45
  SPEAKER_02: He made a ruling from the bench that was favorable to the LGBT community.
• 12:50
  SPEAKER_02: The injunction was put in place.
• 12:52
  SPEAKER_01: The motions for preliminary injunction are granted.
• 12:56
  SPEAKER_02: And there was an out scream from the galley.
• 12:59
  SPEAKER_02: Everybody was like, ah! Well, he became livid.
• 13:04
  SPEAKER_02: He didn't want any outbursts in his courtroom, and he got red-faced and said, Stop that, or I'll make everybody leave this courtroom right now.
• 13:12
  SPEAKER_02: A couple of years later, he regretted having acted that way and said it was his biggest embarrassment as a judge to have reacted in the way that he did.
• 13:22
  SPEAKER_02: But uh, I remember how everyone was so elated over the fact that we got that injunction in place.
• 13:28
  SPEAKER_02: It was never in effect for a minute.
• 13:33
  SPEAKER_13: Just like Mary promised, Amendment 2 was stopped dead in its tracks with an injunction.
• 13:39
  SPEAKER_13: But as we said at the beginning, the pendulum swings again.
• 13:44
  SPEAKER_12: The injunction led to a full-blown trial in the Colorado courts, with testimony on one side from plaintiff Richard Evans, even the mayors of Denver, Boulder, and Aspen testified.
• 13:56
  SPEAKER_12: On the other side, you have CFV people and quote religious experts.
• 14:01
  SPEAKER_12: Clip knew once they won at the Colorado level, it would get appealed.
• 14:05
  SPEAKER_12: So first it gets appealed to the Colorado Supreme Court, and then eventually it gets appealed all the way up to the US Supreme Court.
• 14:12
  SPEAKER_12: These proceedings take years and years.
• 14:16
  SPEAKER_12: All the while, gay people in Colorado are caught in this pendulum swing, scared, unprotected, and unsure of who they can trust in their neighborhoods.
• 14:26
  SPEAKER_12: I mean, people were calling into radio shows and saying awful things about gay people.
• 14:39
  SPEAKER_08: All right, let's uh just put the right off and take some more phone calls.
• 14:43
  SPEAKER_09: Any particular group uh any additional rights than anybody else?
• 14:56
  SPEAKER_13: And the anti-gay rhetoric doesn't slow down during this time.
• 15:00
  SPEAKER_13: By 1994, groups in Arizona, Michigan, and Missouri use almost word for word, Amendment 2's text on their own petitions for anti-gay rights laws, even with Colorado's injunction in place in an ongoing Supreme Court battle.
• 15:15
  SPEAKER_12: But one silver lining during these years of waiting is that allyship and community grows stronger than ever.
• 15:22
  SPEAKER_12: Phil Nash, our hometown hero from episode one, told us that in the wake of Amendment 2, pride celebrations grew.
• 15:29
  SPEAKER_12: Families of gay people were joining P Flag.
• 15:32
  SPEAKER_12: What once was a very private, discreet community of people scared to be out in public, is now bursting out of the closet in response to this oppression.
• 15:42
  SPEAKER_07: This was like, okay, our lives are on the line right now, our rights are on the line, it's important to come out.
• 15:48
  SPEAKER_07: This was like an eye-opener to people who believe in social justice, who are not gay, and saying, oh my gosh, this is such blatant discrimination that, you know, we've we gotta do something.
• 15:59
  SPEAKER_07: So there was a lot more allyship.
• 16:02
  SPEAKER_07: And it put more politicians on the podium to uh to say, I oppose this.
• 16:09
  SPEAKER_07: Before Federico Pena won in 1983, politicians didn't want gay people anywhere near them.
• 16:15
  SPEAKER_07: We were the kiss of death politically.
• 16:17
  SPEAKER_07: Now it was beginning to change where politicians were actively courting our support, and they would have to go on the record of saying, I oppose Amendment 2, I oppose discrimination on the basis of sexual orientation.
• 16:32
  SPEAKER_12: Finally, on October 10th, 1995, this long, long road had an end in sight.
• 16:39
  SPEAKER_12: After years of preparation, Mary finds herself standing next to her colleagues in Washington, D.C., on the steps of the highest court in the country.
• 16:48
  SPEAKER_02: The day that the oral argument happened in front of the U.S.
• 16:51
  SPEAKER_02: Supreme Court, there were lines that were all the way back outside the court, and nobody knew who was going to get in.
• 16:58
  SPEAKER_02: I was fortunate to get in because I was affiliated with the case and I went in through the lawyer's side of it.
• 17:04
  SPEAKER_02: The pomp and circumstance around the Supreme Court itself was something that struck me as well.
• 17:09
  SPEAKER_02: I didn't expect that type of somebody to push a chair in when a justice sat, justices coming from behind a curtain, you know, like Johnny Carson.
• 17:19
  SPEAKER_02: It was like, wow, wow, a lot of pomp and circumstances.
• 17:22
  SPEAKER_02: Even the bailiff who came out before the case was called, you know, he had tails, like a tuxedo jacket with tails.
• 17:29
  SPEAKER_02: It's like wow.
• 17:32
  SPEAKER_13: Mary's nerves are on fire as they get settled in on their side of the courtroom.
• 17:37
  SPEAKER_13: The justice they're most worried about convincing?
• 17:40
  SPEAKER_13: Sandra Day O'Connor.
• 17:42
  SPEAKER_02: She had always been characterized as the middle of the court.
• 17:45
  SPEAKER_02: So the arguments were always made to her.
• 17:47
  SPEAKER_02: But it was quite a a personal experience hearing uh the arguments being made that we had gone over, you know, for the last two years, but also looking at the faces of the justices to try and couch what their reactions were, how they felt about what was being said.
• 18:06
  SPEAKER_02: It was like a ping-pong game, you know, you'd watch it and this bounced that way, this bounced this way, and all the time thinking, you know, these people are making decisions about my life and what their decisions are going to impact me and hundreds of thousands of people personally, and it was all in the hands of nine human beings.
• 18:28
  SPEAKER_13: About seven months later, the Supreme Court reconvenes with a decision on Romer v.
• 18:34
  SPEAKER_13: Evans.
• 18:34
  SPEAKER_05: I have the opinion for the court in Romer versus Evans.
• 18:37
  SPEAKER_12: It's May 20th, 1996, three and a half years since the passing of Amendment 2.
• 18:44
  SPEAKER_12: It's not been in effect for a single day, and Supreme Court Justice Anthony Kennedy is about to tell the world if it ever will.
• 18:51
  SPEAKER_05: The state's main argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as everyone else.
• 18:58
  SPEAKER_05: That is, the amendment only denies homosexuals special rights.
• 19:02
  SPEAKER_05: We find this reading of the amendment implausible.
• 19:05
  SPEAKER_05: We cannot accept the view that Amendment 2 only deprives homosexuals of special rights.
• 19:09
  SPEAKER_05: The protections that Amendment 2 denies to homosexuals are taken for granted by most people either because they already have them or do not need them.
• 19:18
  SPEAKER_02: The bottom line is this you can't create a law that is based upon antipathy or dislike or hatred or animosity or animus against a particular group of people.
• 19:31
  SPEAKER_02: If you do that, it's irrational.
• 19:33
  SPEAKER_02: So they lost on a rational basis argument, which is the lowest level argument that can be made, and that's the language that's often quoted the dicta from the case itself is you cannot base a law on animus.
• 19:50
  SPEAKER_13: The impact of Romer v.
• 19:52
  SPEAKER_13: Evans should not be understated.
• 19:54
  SPEAKER_13: This was one of the first US Supreme Court decisions that leaned positive towards gay rights, and it laid the groundwork for more progress in years to come.
• 20:03
  SPEAKER_13: Notably, Romer v.
• 20:05
  SPEAKER_13: Evans is cited as a precedent in the 2003 case of Lawrence v.
• 20:09
  SPEAKER_13: Texas, which resulted in the repeal of sodomy laws and created a momentum for states to start pushing for marriage equality.
• 20:16
  SPEAKER_02: So I always characterized it as uh the LGBT Brown versus Board of Education like case.
• 20:24
  SPEAKER_02: Wow, that's huge.
• 20:26
  SPEAKER_12: Yes, it is huge.
• 20:27
  SPEAKER_12: And Mary Celeste actually goes on to becoming Denver County Court's first openly gay judge.
• 20:34
  SPEAKER_12: Uh she serves from 2000 to 2015.
• 20:37
  SPEAKER_12: Um now she's retired.
• 20:39
  SPEAKER_12: Retired judge Mary Celeste.
• 20:41
  SPEAKER_12: But uh yeah, that that was a huge historic moment that led to so many more historic moments in this kind of push and pull for progress for LGBTQ rights.
• 20:53
  SPEAKER_13: But as you know, the pendulum swings back.
• 20:59
  SPEAKER_13: Xandra, are you ready?
• 21:00
  SPEAKER_13: We're gonna time jump a couple decades and have LGBTQ rights debated in court again.
• 21:06
  SPEAKER_13: Again.
• 21:07
  SPEAKER_13: Just stay with me.
• 21:08
  SPEAKER_13: I promise it's worth it.
• 21:10
  SPEAKER_12: Okay, you're right.
• 21:11
  SPEAKER_12: It is worth it.
• 21:12
  SPEAKER_12: Because as you said, pendulums always swing two ways, right?
• 21:15
  SPEAKER_12: And we're we're on this ride for the long haul.
• 21:17
  SPEAKER_12: So yeah, even though we have this big win in '96, and Colorado for Family Values, you know, even disbands after Romer v.
• 21:24
  SPEAKER_12: Evans, but that only made way for an even bigger evangelical political machine.
• 21:29
  SPEAKER_12: Because the evangelical right knew that with such a shift in the national attitude towards the LGBTQ community, a big retooling was in order, and they knew just where to test these methods.
• 21:41
  SPEAKER_08: Justice Kennedy has the opinion of the court in case 1611, masterpiece cake shop versus the Colorado Civil Rights Commission.
• 21:49
  SPEAKER_13: No, you're not having deja vu.
• 21:52
  SPEAKER_13: This is 2018, more than 20 years after Justice Anthony Kennedy read the Supreme Court's decision for Romer v.
• 22:00
  SPEAKER_13: Evans.
• 22:00
  SPEAKER_13: Once again, a case involving LGBTQ rights from Colorado has landed on the High Court's doorstep.
• 22:08
  SPEAKER_13: Yes, on the same year that the state elected our first trans lawmaker and first gay governor.
• 22:15
  SPEAKER_12: Only this time it's not going to go in the direction that Mary Celeste's case did.
• 22:21
  SPEAKER_09: The delicate question of when the free exercise of religion must yield to an otherwise valid exercise of state power needed to be determined by an in an adjudication in which religious hostility on the part of the state itself would not be a factor in the balance the state sought to reach.
• 22:39
  SPEAKER_09: That requirement was not met here.
• 22:44
  SPEAKER_13: In case you didn't hear about this every single day in 2018, this is the Supreme Court case that stemmed from a Christian baker in Lakewood, Colorado refusing to bake a wedding cake for a gay couple.
• 22:55
  SPEAKER_13: I don't know about you, Alexandra, but I feel like this case was everywhere at the time.
• 22:59
  SPEAKER_12: Oh yeah, you and I were both still at Colorado Public Radio in 2018, and the coverage of this case was just like non-stop.
• 23:06
  SPEAKER_12: Nationally, too.
• 23:07
  SPEAKER_12: I mean, every day in the newsroom we had reporters on standby to file stories as soon as the Masterpiece Cake Shop decision came down from the Supreme Court.
• 23:17
  SPEAKER_13: Yeah, it was one of those reporters.
• 23:19
  SPEAKER_13: And here I am again.
• 23:21
  SPEAKER_03: Nobody knew that Masterpiece was going to explode the way it did.
• 23:26
  SPEAKER_13: This is civil rights attorney Paula Greason, who represented the gay couple at the center of the case.
• 23:31
  SPEAKER_13: Charlie Craig and David Mullins.
• 23:34
  SPEAKER_03: Was sitting in my office and got a call from the head of the ACLU here in Colorado saying we have this little trial that looks like it's gonna happen.
• 23:44
  SPEAKER_03: Can you cover it?
• 23:46
  SPEAKER_03: And he told me the facts of the case, and I thought, oh my gosh, this is so straightforward.
• 23:51
  SPEAKER_03: This is such a clear-cut violation of law.
• 23:54
  SPEAKER_03: Absolutely.
• 23:55
  SPEAKER_03: It'll take 10 minutes, right?
• 23:58
  SPEAKER_03: And uh then, of course, we won at the trial level, and that's when um ADF, the the organization that has advocated and has spent so much time and effort vilifying the LGBTQ community, took it up to the U.S.
• 24:16
  SPEAKER_03: Supreme Court.
• 24:17
  SPEAKER_12: That name right there that Paula just mentioned, the ADF, that stands for Alliance Defending Freedom.
• 24:23
  SPEAKER_12: And they are a conservative Christian legal machine that makes C of V look like a little grassroots organization.
• 24:32
  SPEAKER_12: By this point, they've been around for 20 years, have an entire legal academy to train lawyers to defend religious freedom, and an annual revenue sitting around$50 million.
• 24:44
  SPEAKER_12: This was Paula's first time in court with them.
• 24:47
  SPEAKER_03: I had never heard of ADF before.
• 24:50
  SPEAKER_03: And what I came to understand was that ADF was essentially setting up these cases around the country.
• 24:59
  SPEAKER_03: I it was a very, I I think a long-term tactical decision that they manipulated very well.
• 25:06
  SPEAKER_13: Just like Mary Celeste and Clip did for the injunction on Amendment 2, Paula and her team set out to build a case.
• 25:13
  SPEAKER_13: This time about how the Baker was violating Colorado's anti-discrimination law.
• 25:18
  SPEAKER_03: I I was surprised, I will admit, how aggressive Alliance defending freedom, how aggressive they were.
• 25:26
  SPEAKER_03: And they wanted they wanted a copy of Charlie and David's wedding vows.
• 25:31
  SPEAKER_03: They wanted pictures of their wedding, they wanted information that had nothing to do with the case.
• 25:40
  SPEAKER_03: And I think that was our first clue that ADF was trying to make this uh case about something much more than uh the refusal of services, but looking for ways to somehow throw mud on Charlie and David.
• 26:02
  SPEAKER_12: This was Paula's first taste of the ADF strategy.
• 26:06
  SPEAKER_12: A strategy that Paula says majorly involves controlling the narrative.
• 26:11
  SPEAKER_03: But a narrative that feeds into the concept that they want something special.
• 26:19
  SPEAKER_03: The people involved are not worthy of credibility and of equal rights.
• 26:26
  SPEAKER_03: But it is a strategy to find a face that looks like somebody everybody's gonna like, Jack Phillips, the baker.
• 26:35
  SPEAKER_03: And then control the narrative about what happened.
• 26:42
  SPEAKER_03: I mean, you saw Kristen Wagner, their lead counsel, and Jack Phillips everywhere, right?
• 26:49
  SPEAKER_03: They were on the view, pictures of Jack Phillips artistically designing cakes.
• 26:57
  SPEAKER_03: Uh, and what was your immediate reaction when these two gay guys said we want a cake for our wedding?
• 27:01
  SPEAKER_04: I tried to politely tell them that I didn't do cakes for same-sex weddings.
• 27:05
  SPEAKER_04: I serve everybody all the time, but I didn't make.
• 27:51
  SPEAKER_03: Nothing had actually happened.
• 27:53
  SPEAKER_03: But they're picking and choosing what the clients are and what they're gonna say, and then in a very unprecedented uh situation, get the Supreme Court to hear a case even though it hasn't happened.
• 28:11
  SPEAKER_12: And this is the thing about ADF, is they're looking for strategic plaintiffs around the country.
• 28:18
  SPEAKER_12: What you need to remember from all of this isn't even really ADF or Masterpiece or 303 Creative.
• 28:24
  SPEAKER_12: It's the fact that this anti-gay legal strategy is being repeated over and over and succeeding now.
• 28:31
  SPEAKER_13: Right.
• 28:32
  SPEAKER_13: But going back to Masterpiece for one second, we do need to make one thing clear about the Supreme Court's decision.
• 28:39
  SPEAKER_13: It was a little nitpicky and incomplete.
• 28:42
  SPEAKER_13: It primarily focused on the fact that Jack Phillips, the Baker, was not treated neutrally by Colorado's Civil Rights Commission, and that there was demonstrated hostility towards his religious beliefs.
• 28:53
  SPEAKER_13: What they did not decide on was whether or not Jack Phillips had a right to refuse service to the gay couple.
• 29:01
  SPEAKER_12: And in fact, in their opinion, the Supreme Court seems to be struggling with this question.
• 29:06
  SPEAKER_12: Trevor Burrus, Jr.
• 29:07
  SPEAKER_09: It's unexceptional that Colorado law can protect gay persons just as it can protect other classes of individuals.
• 29:14
  SPEAKER_09: It can protect them in inquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.
• 29:21
  SPEAKER_09: Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.
• 29:30
  SPEAKER_09: The laws and the Constitution can, and in some instance must, protect them in the exercise of their civil rights.
• 29:42
  SPEAKER_12: They don't cite the case outright as a precedent, but it does feel like Justice Kennedy is saying, look, we already decided this 20 years ago.
• 29:50
  SPEAKER_12: Gay people are to be protected by anti-discrimination laws.
• 29:54
  SPEAKER_12: And like we just heard him say in that clip, our society has come to the recognition that they cannot be treated as social outcasts.
• 30:02
  SPEAKER_13: Yeah, so even though the ADF may have won this battle with Masterpiece Cake Shop, at least there's some kind of protection for gay people, so that the Supreme Court has to at least struggle to defend them.
• 30:14
  SPEAKER_13: But there's another group of LGBTQ Americans who still doesn't even have that.
• 30:19
  SPEAKER_06: Representative Brianna Tatone made Colorado history as the state's first transgender lawmaker.
• 30:25
  SPEAKER_06: She's one of only four trans state lawmakers in the country.
• 30:48
  SPEAKER_13: Watching first responders run into the World Trade Center to save people trapped under rubble made Brianna realize how much she was called to a career of service.
• 30:58
  SPEAKER_11: That was kind of lighting another fire under me and say, like, well, maybe I need to do something, but I couldn't bring myself to be in the military because I know what being in the military is like because they're up in every bit of your business.
• 31:11
  SPEAKER_11: And I didn't want them to be in my business because, you know, I I cross-dressed and underdressed all the time, and like it was something that I needed, and I wouldn't be able to have that in that kind of environment.
• 31:24
  SPEAKER_11: Because of that, I never really committed to doing the military, all even though I probably would have under other circumstances.
• 31:36
  SPEAKER_13: So with the military off the table, Brianna ends up doing some environmental work after grad school and lands a job with a mining consulting company in Colorado.
• 31:45
  SPEAKER_13: And it was here in progressive, gay-friendly Colorado, where Brianna finally started to explore these aspects of her identity that she had long pushed aside.
• 31:56
  SPEAKER_11: I sought out some people who would help me because over the years, a lot of the therapists who I talked to had no experience with trans people.
• 32:04
  SPEAKER_11: And when I was opening up about that to them, they just would say, Oh no, you're not trans.
• 32:11
  SPEAKER_11: What are you talking about?
• 32:12
  SPEAKER_11: You know, they it would they didn't want to have the conversation.
• 32:15
  SPEAKER_11: I think they were just uncomfortable with it, they didn't have experience, and they brushed it off.
• 32:20
  SPEAKER_11: So I finally went to a place that really did that.
• 32:24
  SPEAKER_11: That was the Gender Identity Center here in Colorado, and they were able to help me really understand what I had been struggling with for so long.
• 32:33
  SPEAKER_11: And then when I realized that I I was trans and it came out, I I was part of a community that was under assault, that needed help.
• 32:44
  SPEAKER_11: How could I not do something?
• 32:48
  SPEAKER_12: Brianna gets involved with LGBTQ organizations and is testifying in favor of legislation that would protect queer and trans people.
• 32:56
  SPEAKER_12: But at the time, Colorado Senate was Republican controlled, and these bills that she felt passionate about weren't getting across the finish line.
• 33:04
  SPEAKER_12: Especially a bill that would ban conversion therapy in Colorado.
• 33:09
  SPEAKER_12: So, Brianna has the idea to take the fight to the local level and get cities to pass ordinances banning conversion therapy.
• 33:17
  SPEAKER_12: And does that sound familiar to you?
• 33:19
  SPEAKER_13: Xandra, yes.
• 33:21
  SPEAKER_13: That focus on the local level is the same strategy that gay activists in the 80s and 90s used to get protections on the books.
• 33:30
  SPEAKER_11: So I was working with the Democratic Party LGBT caucus in Jefferson County, and I had a pretty motivated group.
• 33:39
  SPEAKER_11: I kind of just led them to do these actions to go to different cities to get proclamations or some kind of ordinance to say that we don't want conversion therapy in our city.
• 33:53
  SPEAKER_11: Those actions led the chair of the Democratic Party to say, hey, you know, you're pretty good at this, you're pretty smart, you gotta you can lead people.
• 34:06
  SPEAKER_11: We need someone to run for this seat, and you know, you'd be great.
• 34:11
  SPEAKER_11: And I was a bit skeptical.
• 34:16
  SPEAKER_11: Nobody had ever won as a trans person before.
• 34:19
  SPEAKER_11: It was a Republican seat, so there was a lot kind of going against me at that point, and I had never seen anybody do it.
• 34:28
  SPEAKER_13: But in 2017, Danica Rome of Virginia wins her election and becomes the first trans woman elected to a U.S.
• 34:35
  SPEAKER_13: state legislature anywhere.
• 34:39
  SPEAKER_13: This representation changes everything for Brianna.
• 34:43
  SPEAKER_13: Now she's seen someone do it.
• 34:46
  SPEAKER_11: We scrapped it together.
• 34:47
  SPEAKER_11: My wife did a lot of doors as well in the beginning.
• 34:51
  SPEAKER_11: We had a lot of volunteers helping out.
• 34:54
  SPEAKER_11: It was a real grassroots effort.
• 34:56
  SPEAKER_11: And that's been something that I've been really being empowered by doing the work of the people because the people really sent me here.
• 35:05
  SPEAKER_12: Brianna Tatone won her seat in 2018, not on election night, but three days later, after all the ballots were counted, and by three percentage points.
• 35:16
  SPEAKER_13: And then she got to work.
• 35:18
  SPEAKER_13: Over her time in the State House, Representative Brianna Tatone has sponsored 136 bills, including one that banned the use of something called a gay and trans panic defense in criminal cases.
• 35:30
  SPEAKER_13: That's a legal strategy that allows defendants to use their victims' gender identity or sexuality as an excuse to commit a crime against them, sometimes even in murder cases.
• 35:40
  SPEAKER_13: That kind of defense is still allowed in twelve other states.
• 35:45
  SPEAKER_13: Another bill she helped pass made it safer for sex workers to report assaults without fear of prosecution.
• 35:52
  SPEAKER_13: Both bills are laws now.
• 35:54
  SPEAKER_11: People have said to me, I'm alive today because you're doing this work.
• 35:59
  SPEAKER_11: You're my hero.
• 36:01
  SPEAKER_11: Like I I've heard people say, This is power I didn't ask for, but it's there.
• 36:06
  SPEAKER_11: And if I'm able to have somebody be alive today because I'm doing this work, it's amazing.
• 36:14
  SPEAKER_11: I mean, I want I want to make more people want to stay alive.
• 36:18
  SPEAKER_11: I want more people to say, I have hope in my life because these things are happening.
• 36:25
  SPEAKER_12: 2026 marks representative to tone's last year in office.
• 36:29
  SPEAKER_12: She's hitting her maximum number of terms served.
• 36:33
  SPEAKER_12: But it's also a year when, you guessed it, we're starting to see that pendulum swinging back in the other direction.
• 36:41
  SPEAKER_13: Well, let's be honest, Alexra.
• 36:42
  SPEAKER_13: This pendulum swing has been slowly picking up speed for years, and in the last five years, it's gotten a lot worse.
• 36:50
  SPEAKER_12: Yeah, you could say that.
• 36:52
  SPEAKER_12: The ACLU has a tracker of anti-LGBTQ legislation at the state level.
• 36:58
  SPEAKER_12: And between 2021 and 2025, it showed an increase of more than 200% in anti-LGBTQ bills introduced into state legislatures.
• 37:08
  SPEAKER_13: Jeez.
• 37:10
  SPEAKER_12: Now, I mean, obviously it's difficult to point to one reason alone for that ridiculous spike, but I do want to go back to this point that civil rights attorney Paula Greesson made in our interview.
• 37:23
  SPEAKER_03: What you see is that a fear is being tapped into.
• 37:27
  SPEAKER_03: I think there are some very vocal minorities who push for initiatives, whether it be Amendment 2 and now these ballot initiatives, who listen to what they're told on Fox News and by this president.
• 37:48
  SPEAKER_03: And and believe it because they don't know any trans person.
• 37:56
  SPEAKER_13: Those ballot initiatives that she's referring to, that is gonna be what brings this more than 30-year-old fight for LGBTQ rights right up to today.
• 38:08
  SPEAKER_10: We must not again return to being the hate state.
• 38:11
  SPEAKER_10: And thankfully for us, we still have time.
• 38:14
  SPEAKER_10: But as of right now, if we do not act, polling shows 134 and 135 will pass.
• 38:20
  SPEAKER_10: Here again, if we do not act, 134 and 135.
• 38:23
  SPEAKER_13: Next time on Hate State, Colorado voters will be asked again to decide who deserves protection.
• 38:29
  SPEAKER_13: And we'll look at what happens to people who are caught in the crosshairs of the culture war.
• 38:36
  SPEAKER_12: Hate State is a production of Oddbird Sound and Word and Lookout News.
• 38:40
  SPEAKER_13: Our editors and executive producers are Carolina Muriel and Isis Madrid of Pizza Shark.
• 38:45
  SPEAKER_12: This episode was written and produced by me, Xandra McMahon, Ann Maria Wadd, and Chris Fazari.
• 38:51
  SPEAKER_13: Thanks to Colorado Public Radio for letting us use clips from a 2019 story about Brianna Tatone.
• 38:57
  SPEAKER_12: Archival tape in this episode also comes from the documentary Lesbian Avengers Eat Fire 2, thanks to Sue Frederick and Janet Bouse at the New York Lesbian Avengers.
• 39:07
  SPEAKER_13: Our music was composed by Addison Ryder with additional music from Epidemic Sound.
• 39:11
  SPEAKER_13: Our engineer is Patrick McNamy King.
• 39:14
  SPEAKER_13: Please subscribe to hear the last installment of this podcast.
• 39:18
  SPEAKER_13: Rate us, review us wherever you listen to podcasts, or find us on Lookoutnews.org.