Custer didn't ask for a rematch. McGovern didn't demand a recount. So why is Cincinnati Mayor Charlie Luken calling for a repeal of Issue 3, passed by 62 percent of voters in 1993?

At first I thought it was a clever strategy to change the subject at City Hall. Instead of endless rhetorical masochism about racism, they could discuss something new - homophobia.

But that's not it. The mayor says Cincinnati looks intolerant. Here's what he said in his State of the City speech last week: "It stands as a symbol that Cincinnati is willing to tolerate discrimination for one class of our citizens." And, "What is at issue now, as then, is discrimination, pure and simple."

I don't think Cincinnati is any more intolerant than any city except San Francisco, where tolerance has mutated into civic suicide.

And Issue 3 is not "discrimination, pure and simple."

But don't take my word for it. Cincinnati spent five years in court to find out. In 1995 the 6th Circuit Court of Appeals said Issue 3 (Article XII in the Charter) is not discriminatory, and "is not an irrational measure fashioned only to harm an unpopular segment of the population."

"The language of the Cincinnati Charter Amendment, read in its full context, merely prevented homosexuals, as homosexuals, from obtaining special privileges and preferences (such as affirmative action preferences or the legally sanctioned power to force employers, landlords, and merchants to transact business with them) from the City."

Former Deputy Cincinnati Solicitor Karl Kadon, who argued the case for the city all the way to the U.S. Supreme Court, said, "Issue 3 was validated by the Supreme Court because what it really did was affirm the constitutionally protected proposition that every one of us is entitled to equal treatment under the law."

A lot has changed since 1993. Some big corporations now side with repeal to avoid offending diversity committees and gay customers. But the wind shift in elite opinions has not swayed ordinary voters. Polls show support for Issue 3 is just as strong as it was in 1993.

"I don't see any changes that indicate we should revisit this issue this year," said Chris Finney, a Hyde Park lawyer who worked to pass Issue 3 in 1993.

For people like gay-rights activist and businessman David Harriman, "Luken was right on."

"Article XII sets gays into a special class and denies them the right to petition their government to redress grievances," he says. "And why must our city reinforce its reputation for prejudice?

"Keep bashing us and I and many other productive citizens are out of here."

Luken said this week that reaction to his speech has been very positive. "I do not call names. I did not say people who disagree with me are intolerant."

But some who oppose gay rights - often for religious reasons - took it that way. "The attitude is if you don't agree, you hate and you're evil," Finney said.

Issue 3 was a response to a gay-rights ordinance that had civil and criminal penalties, Finney said. "Who is really intolerant? Who was trying to put whom in jail and seize property?"

Let's stipulate that intolerance is a matter of opinion. But the opinion that counts came from the courts - and it says Issue 3 is not discrimination.

There's no reason for a rematch at gay-rights Waterloo.

E-mail pbronson@enquirer.com or call 768-8301.