Law denying gay protection stands
Supreme Court decision ends 5-year battle

Wednesday, October 14, 1998

The Cincinnati Enquirer

A 1993 amendment to Cincinnati's charter that prohibits the city from extending protection to gays and lesbians became law Tuesday after the U.S. Supreme Court declined to hear an appeal in the case.

History of amendment
The court's decision ends a bitter five-year legal battle, waged at the local and national levels, over whether Cincinnati could ban discrimination in housing and employment based on sexual orientation. Gay-rights advocates, hoping for a political solution, plan to circulate petitions next week to repeal the law.

"Cincinnati now stands as an island of intolerance with discrimination built into the city charter, and we're challenged now to solve this problem politically," said Alphonse Gerhardstein, the Cincinnati attorney who represented the Equality Foundation of Greater Cincinnati, which challenged the amendment.

Supporters of the amendment saw the Supreme Court decision as a victory for the rights of a local community to determine its own laws. Sixty-two percent of Cincinnatians who went to the polls in 1993 voted in favor of the measure.

"We're so grateful the courts acknowledged that the people are the final authority in this land, as was established by the Founding Fathers," said Phil Burress, president of Citizens for Community Values. "We said from the beginning that what a person does in the privacy of his own bedroom should not be the basis for special laws."

The decision, which comes two years after the Supreme Court struck down a Colorado amendment similar to Cincinnati's amendment, adds confusion to the legal issue over whether governments can ban civil protection based on sexual orientation.

Some advocates said the 1996 decision still stands as the court's definitive statement on gay rights and discrimination bans, while others said the difference is that one is a state law and the other a local law.

Both sides believe other communities will attempt to duplicate the charter amendment, which was known as Issue 3, in their own cities in light of Tuesday's action. Cincinnati is the only city in the country to outlaw specific protection for gays and lesbians.

"Now Issue 3 may allow us to pass an Issue 3-type ordinance in Louisville to make sure no one has special rights," said Frank Simon, director of the American Family Association of Kentucky, who opposes municipal protection for gays and lesbians. "It'll be a big help to Louisville and across the nation."

The battle over Issue 3 began in November 1992, when Cincinnati City Council adopted the Human Rights Ordinance. It banned, among other things, private discrimination in employment, housing or public accommodation because of sexual orientation.

A coalition of individuals and groups formed Equal Rights Not Special Rights to oppose the human-rights ordinance. They succeeded in placing Issue 3 on the November 1993 ballot, and voters approved it, 62 percent to 38 percent.

Supporters argued the city ordinance gave unfair protection to people based on sexual orientation.

"The gay-rights movement is not on the same level as the civil-rights movement," said the Rev. K.Z. Smith, pastor of Corinthian Baptist Church in Avondale and a spokesman for Equal Rights. "Although gays and bisexuals deserve protection under the law like any other citizen, they don't have the right to demand protection based on sexual preference."

Gay-rights groups, on the other hand, said the amendment simply raised a historically persecuted group to the status of other persecuted groups. No one challenged the sections of the ordinance that banned discrimination based on sex, race, religion or Appalachian heritage.

"We believe the battle is yet to come over the meaning of "special protection,' but measures aimed at ensuring basic equal treatment are not special protection," said Suzanne Goldberg, an attorney with the New York-based Lambda Legal Defense and Education Fund, who was co-counsel with Mr. Gerhardstein. "Laws ensuring equal treatment are not special treatment."

The Equality Foundation, a fair-housing agency and several individuals sued the city six days after the election, saying the charter amendment violated their rights. U.S. District Judge S. Arthur Spiegel first barred the city from enforcing the amendment, then struck it down as unconstitutional.

From the time of Judge Spiegel's injunction until Tuesday, the amendment was held up in the courts and unenforceable.

In March 1995, city council voted, 5-4, to remove sexual orientation from the Human Rights Ordinance, but the legal dispute over Issue 3 continued. Two months later, the U.S. 6th Circuit Court of Appeals in Cincinnati overturned Judge Spiegel's verdict, saying gays were not entitled to specific municipal protection and the amendment violated no one's constitutional rights.

Many thought the wrangling was over on May 20, 1996, when the U.S. Supreme Court ruled in a 6-3 decision that the Colorado law was unconstitutional. That case overturned the state's Amendment 2, which in words almost identical to Issue 3 prohibited protection based on sexual orientation.

"I want to emphasize that national gay rights were set in the Romer (Colorado) decision," said Mr. Gerhardstein.

After its ruling in the Colorado case, the Supreme Court sent the Cincinnati case back to the 6th Circuit. Last year, that court upheld Issue 3 for the second time, and an appeal to the Supreme Court on that decision set the stage for Tuesday's action.

In a brief opinion issued with the Supreme Court's denial Tuesday, Justice John Paul Stevens played down the significance of the court's action, saying "it should not be interpreted as an independent construction of the charter or as an expression of its views about the underlying issues that the parties have debated at length."

And Michael Carvin, the Washington attorney who represented Equal Rights, said that Amendment 2 was overturned because it was a state attempt to control the policies of local governments, while Issue 3 allows municipalities control over their own policies.

"I think it sends a clear message to other municipalities and cities that they may enact laws like Issue 3," Mr. Carvin said. "This was a local decision by a local community. The problem in Romer (the Colorado case) was the state was imposing its will on local communities."

Cincinnati City Councilman Charlie Winburn, who voted against the original Human Rights Ordinance, called Tuesday's action "a victory for the city of Cincinnati and its citizens."

Councilman Tyrone K. Yates, who supported the original ordinance, said he was "disappointed that the city of Cincinnati's ordinance regarding human rights will remain without legal force, and, in the wake of the recent Colorado decision, for the confusion that results for Cincinnati citizens as well as the nation."

As the two sides in the debate absorbed Tuesday's action by the Supreme Court, they agreed on only one thing: the fight over this issue is not over.

"I'm sure this won't put an end to it," said the Rev. Mr. Smith. "If we had lost Issue 3 and continued to fight this, we would have been the mean-spirited ones. They lost Issue 3 and continued to fight, and we're still the mean-spirited ones."

Lycette Nelson, executive director of Stonewall Cincinnati, the area's largest gay-rights organization, said the Cincinnati Human Relations Commission, the Cincinnati Federation of Teachers and the League of Women Voters have pledged to help circulate petitions for a repeal initiative.

"With plans for two new stadiums, the Underground Railroad Museum and a new Contemporary Arts Center, as well as (a) bid to bring the 2012 Olympic Games to Cincinnati, the city is attempting to attain the stature of a world-class city," Ms. Nelson said.

"We say to the citizens of Cincinnati, you will never be a first-class city by designating one segment of your community as second-class citizens."

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