Statement from Lambda Legal Defense and Education Fund on Sixth Circuit Court of Appeals Decision to Uphold Cincinnati's Issue 3
Legal Defense and Education Fund criticized "a renegade ruling" that on Thursday upheld the country's last remaining anti-gay initiative. Cincinnati's Issue 3 would bar the Cincinnati City Council from protecting lesbians and gay men against discrimination.
"This renegade ruling directly contradicts the United States Supreme Court, which overturned Colorado's similar Amendment 2," said Lambda Legal Director Beatrice Dohrn from Lambda's New York headquarters.
A panel for the U.S. Court of Appeals for the Sixth Circuit, she pointed out, went so far as to state that Issue 3 "merely prevented homosexuals, as homosexuals, from obtaining special privileges and preferences . . . from the city." To the panel, "special privileges" for gay people include the "legally sanctioned power to force employers, landlords, and merchants to transact business with them."
But in writing last year for the six-justice majority opinion in the Colorado case, Romer v. Evans, Justice Anthony Kennedy said:
We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.
Patricia M. Logue, managing attorney for Lambda's Midwest Regional Office in Chicago, said, "The court's attempt to craft a Cincinnati exception to the Romer case has already been rejected. The Supreme Court held in Romer that 'government and each of its parts [must] remain open on impartial terms to all who seek its assistance.'"
Logue noted, "The Supreme Court rejected Colorado's measure because it found that anti-gay animus was not a permissible basis for the burdens it placed on gay people, similar to those of Issue 3. The Sixth Circuit decision resurrects a rationale that Cincinnati's measure is legitimately grounded in the community's desire to save money that the Supreme Court held to be inadequate."
In New York, Lambda Staff Attorney Suzanne B. Goldberg said, "This ruling is out of step with legal and social realities throughout the country. Every single anti-gay voter initiative of recent years has been rejected by courts and voters across the country from Maine to Florida to Oregon and Idaho.
Goldberg said, "Strikingly, this decision exalts the 'right' to discriminate on the same day that the Senate holds hearings about a federal measure to outlaw employment discrimination based on sexual orientation. This court's ruling comes against the backdrop of widespread recognition that discrimination, including anti-gay discrimination, is wrong."
Dohrn added, "The court's ruling is a strong reminder that lesbian and gay Americans are not protected against discrimination in most parts of the country."
Issue 3 was passed by Cincinnati voters in November 1993, and was struck down by the federal district court shortly afterwards. The Sixth Circuit, in an earlier ruling, reversed the lower court opinion but the U.S. Supreme Court, after finding unconstitutional Colorado's anti-gay Amendment 2 in May 1996, ordered the appeals court to reconsider the case, Equality Foundation of Greater Cincinnati v. City of Cincinnati.
Logue and Goldberg are Lambda's attorneys on behalf of Equality Foundation of Greater Cincinnati. Cincinnati civil rights attorney Alphonse A. Gerhardstein is also co-counsel, along with Scott Greenwood of the ACLU of Ohio and Ohio attorney Richard Cordray.
Lambda, the oldest and largest lesbian and gay legal organization, celebrates its twenty-fifth anniversary in 1998. With its national headquarters in New York, Lambda has regional offices in Atlanta and Los Angeles as well as Chicago.
(Equality Foundation of Greater Cincinnati v. City of Cincinnati,
Case Nos. 94-3855, 94-3973, and 94-4280)
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