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21 . 1904
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Celebrating our
15th year...
Deborah Betron
C RB, GRI
Broker Owner
A federal district court in Ohio makes a stunning decision
about a discriminatory ordinance
Chris Bonner, (>R1
Ass<x inte Broker
▼
by Geoffrey Wren
United States district court in Ohio
has issued an important decision in a
case arising from enactment of a bal
lot measure similar to Measure 13.
The case, Equality Foundation vs. City
o f Cincinnati, offers a textbook study of how
Measure 13 violates the federal Constitution.
The case has its roots in enactment of civil
rights ordinances by the Cincinnati City Council
which forbade sexual orientation discrimination in
public and private employment.
In response, a group called Equal Rights Not
Special Rights put “Issue 3” on the ballot to amend
the city’s charter. The measure barred the city from
taking action to protect sexual minorities from
discrimination, and it nullified the city’s existing
ordinances. Sixty-two percent of the voters passed
it in 1993.
The Equality Foundation of Greater Cincinnati
sued the city in federal court to stop enforcement of
Issue 3. Equal Rights Not Special Rights joined the
city as a defendant.
Given the frequent hostility to sexual minori
ties in the federal courts, the district court’s deci
sion is stunning for its breadth, sensitivity and
vision. The court began with its “findings of fact.’’
These included findings that homosexuals com
prise between 5 and
13 percent of the popu
lation; sexual orienta
tion is a characteristic
distinct from sexual
conduct or behavior;
sexual orientation is “a
deeply rooted, com
plex combination of
factors including a
predisposition to
wards affiliation, af
fection, or bonding”
with members of the same sex; homosexuality is
set at an early age; homosexuality “bears no rela
tion to an individual’s ability to perform, contrib
ute to, or participate in society”; and gay men,
lesbians and bisexuals have “suffered a history of
pervasive,
irrational
and
invidious
discrimination...in all facets of society in gen
eral.”
Applying these findings, the court held that
Issue 3 violated the 14th Amendment to the U.S.
Constitution because it unconstitutionally discrimi
nated against lesbians, gay men and bisexuals and
because it violated their fundamental right of po
litical participation.
The 14th Amendment requires that states and
their political subdivisions accord all citizens the
“equal protection of the laws.” Certain laws or
other government action which classify groups of
people discriminatorily violate the Equal Protec
tion Clause.
To determine whether a particular government
classification unconstitutionally discriminates, the
court must first decide what level of “scrutiny”
should apply to the classification.
The degree of scrutiny answers the question of
what justification the government must show to
protect its classification against constitutional at
tack. At one end is “strict scrutiny.” Such scrutiny
requires the proof that the government has a com
pelling reason for its law or other action.
At the other end is “rational basis” review.
Under the rational basis test, almost any justifica
tion one can articulate with a straight face will
insulate a law against constitutional attack.
A
The federal district court did not apply strict
scrutiny. Instead, it applied an intermediate test:
“quasi-suspect scrutiny.” In reaching this deci
sion, the court emphasized that sexual minorities
have suffered a history of invidious discrimination
based on group identity, and that those targeted by
Issue 3—lesbians, gay men and bisexuals—had no
control over whether they belonged to the targeted
group. The court also rejected the notion that
sexual orientation is a matter of behavior as op
posed to status.
Quasi-suspect scrutiny required the city to show
that an important government interest justified
Issue 3. The defendants, particularly Equal Rights
Not Special Rights, advanced a host of justifica
tions. The court rejected all of them. In particular,
the court held that Issue 3 was not a legitimate
expression of community morality.
Even better, the court went on to hold that Issue
3 could not even pass rational basis review. The
court, in other words, essentially held that the
defendants offered nothing more than laughable
justifications.
Separate from its decision that Issue 3 uncon
stitutionally discriminated against gay men, lesbi
ans and bisexuals as a class, the court also held that
the measure violated their fundamental right of
equal participation in
the political process.
Last year, the
Colorado Supreme
Court applied this
reasoning in Evans
vs. Romer to hold that
the state’s Amend
ment 2, another dis
crim inatory m ea
sure, violated the
14th Amendment.
The argument basi
cally holds that a law which forbids a legislative
body from enacting civil rights protections for a
particular class of citizens unconstitutionally de
nies that class the right to seek help from the
legislative body, i.e., to petition for redress of
grievances.
The court in Equality Foundation went a step
further than the Colorado court and held that Issue
3 also violated the plaintiffs’ First Amendment
rights of freedom of speech and association. Given
the breadth of the court’s decision, one can read it
to stand for a powerful proposition: A representa
tive democracy cannot tolerate a law which dis
ables citizens from seeking the help of their repre
sentatives.
If Ballot Measure 13 passes, civil rights attor
neys will challenge it in court. They will make
many, if not all, of the arguments embraced by the
court in Equality Foundation. Rights advocates
are optimistic that the courts would strike the
measure down.
Optimism about judicial action is fine, but no
one should let it stand in the way of action to defeat
Ballot Measure 13 at the polls. Equality Founda
tion is one decision by one judge in one part of the
country, and that decision is now on appeal. Noone
knows how the U.S. Supreme Court would rule on
a measure like 13.
Perhaps more importantly, a victory at the polls
may send a more powerful message than any
judicial decision. Lawyers and judges often speak
in a voice the Oregon Citizens Alliance does not
hear. The electorate speaks in a voice the OCA
cannot ignore.
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