U.S. Supreme Court Declines Review of Last Remaining Anti-Gay Ballot Initiative

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Romer left untouched, hate crime protections still possible in Cincinnati after murder in Wyoming
October 13, 1998

(CHICAGO, October 13, 1998) -- Lambda Legal Defense and Education Fund said Tuesday that the United States Supreme Court's refusal to review Cincinnati's Issue 3, which prohibits "protected status" for lesbians and gay men, leaves Cincinnatians to battle further over the reach of the controversial measure, but has no implications beyond that case.

Lambda stressed that the High Court did not change its landmark Romer v. Evans ruling, which affirmed the Constitution's guarantee of equal protection for lesbians and gay men and rejected a Colorado measure that would have blocked anti-gay discrimination protections.

"If the Court wanted to change Romer, it would have taken the case," said Managing Attorney Patricia M. Logue of Lambda's Midwest Regional Office in Chicago. "The justices do not usually second-guess federal appeals courts when they construe local laws. But we're still disappointed that the High Court did not depart from this normal practice and put Issue 3 to rest once and for all."

In denying Lambda's petition to review Equality Foundation v. City of Cincinnati, a 1997 appeals court decision upholding Issue 3, three justices also took the unusual step of issuing an opinion explaining the action.

Justice John J. Stevens, joined by Justices David Souter and Ruth Bader Ginsburg, wrote in an opinion respecting the denial of Lambda's petition, "The Court's action today should not be interpreted...as an expression of its views about the underlying issues that the parties have debated at length."

Staff Attorney Suzanne B. Goldberg, who worked on Lambda's case with Logue, said, "The tragedy in Wyoming warns us that there can be a short distance between the type of anti-gay rhetoric used to promote Issue 3 and the kind of anti-gay violence that led to the gruesome murder of Matthew Shepard. The Cincinnati charter amendment encourages an atmosphere in which physical violence can flourish."

On Monday, 21-year-old Matthew Shepard, a gay University of Wyoming student, died after an apparent anti-gay bias attack in which he was brutally beaten, burned, and left tethered to a fence in near- freezing conditions for over 18 hours.

The High Court's move Tuesday leaves for lower courts to decide whether or not the passage of laws such as anti-gay hate-crimes protections in Cincinnati would be prohibited by Issue 3.

"The Romer court made clear that measures aimed at ensuring basic equal treatment are not 'special' protections. Lambda will fight any effort to use Issue 3 as a way to block hate-crimes prevention laws or other measures aimed at providing gay people with basic equal treatment. This battle is not over," said Lambda Executive Director Kevin M. Cathcart.

Tuesday's decision marks the second time that Issue 3 has come before the High Court. In the wake of their Romer decision, the justices set aside another Sixth Circuit decision upholding Issue 3 and ordered the appeals court to reconsider the city charter amendment. In October 1997, the Sixth Circuit upheld Issue 3 again.

Since the passage of Issue 3 in 1993, Lambda has been co-counsel, with Cincinnati civil rights attorney Alphonse A. Gerhardstein, along with Scott Greenwood of the ACLU of Ohio, and Ohio attorney Richard Cordray for appellant Equality Foundation, a civil rights advocacy group that had worked to defeat the ballot initiative, and six other lesbian and gay Cincinnatians.

Now celebrating its 25th anniversary, Lambda is the nation's oldest and largest legal organization serving lesbians, gay men, and people with HIV and AIDS. Lambda has its national headquarters in New York and regional offices in Chicago, Los Angeles, and Atlanta.


(Equality Foundation of Greater Cincinnati v. City of Cincinnati, No. 97-1795)

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Contact: Peg Byron 212-809-8585 x230, 888-987-1984 (pager)

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