Court Allows Ban on Gay Rights Laws
Washington Post Staff Writer
Wednesday, October 14, 1998; Page A01
The Supreme Court yesterday allowed Cincinnati to ban laws that protect gay people from discrimination, immediately igniting debate over whether the justices are backing away from the spirit of a landmark ruling just two years ago shielding homosexuals from bias.
Unlike its decision in 1996, yesterday's high court action was not a ruling the justices simply decided not to take a case, and as a result, their action set no national standard. But the effect of their refusal to hear the case leaves in place a lower court ruling that appears to conflict with the Supreme Court's earlier decision on gay rights. That mixed message touched off new confusion over just how far governments can go when writing policies focused on gay men and lesbians.
Around the country, the rights of gay people have become a broiling political, legal and cultural issue. Gay marriages and adoptions, military prohibitions on homosexuals, and government attempts to include gays in laws that ban minority discrimination are among the looming matters dividing communities and courts. Yesterday's action also comes amid a new drumbeat for state legislation against "hate crimes" since the death Monday of a gay college student who was brutally beaten in Wyoming.
"This seems to be a kind of retrenchment," said Michael L. Stokes, a lawyer for the National Fair Housing Alliance, which had urged the justices to take the case.
The lower court ruling by the U.S. Court of Appeals for the 6th Circuit affects only Ohio, Michigan, Kentucky and Tennessee. But in states across the country, conservatives may now be emboldened to draft voter initiatives like Cincinnati's that are designed to counteract a flurry of gay rights laws enacted over the past decade.
"I think people will recognize that there is a great window of opportunity because the 6th Circuit decision was" left intact, said Steve Fitschen, president of the Virginia Beach-based National Legal Foundation, which helped draft and defend the Cincinnati initiative. It stops the city from passing ordinances that protect gays against discrimination.
The justices in 1996 struck down a Colorado constitutional amendment that broadly barred government efforts on the state and local level designed to shield homosexuals from bias. In a ruling based on the premise that it is unconstitutional to treat homosexuals differently from any other groups seeking protection against discrimination, the high court said then that no state may "deem a class of persons a stranger to its laws."
But the 6th Circuit observed that Colorado's ban on any state or city gay rights went further than the 1993 Cincinnati voter initiative. The Cincinnati initiative said the city may not enact any policy that allows homosexuals "any claim of minority or protected status, quota preference or other preferential treatment."
In upholding the initiative, the appeals court said Cincinnati voters were only trying to affect their own city's laws. In Colorado, by contrast, state voters in their referendum were effectively telling cities what municipal ordinances they could enact.
The 6th Circuit also differentiated the Cincinnati initiative by asserting it did not have nearly the scope of the invalidated Colorado law. Colorado's so-called Amendment 2 would have excluded homosexuals from the protection of every Colorado state law. The Cincinnati initiative, the appeals court said, merely prevented the city from writing legislation that would give homosexuals "special privileges and preferences." What is not clear based on conflicting statements from the appeals court and the city is whether laws that single out gays as being protected against discrimination in housing, on the job or in other areas would be banned by the initiative.
The Supreme Court's decision not to take the case came without any recorded vote or statement from the majority, but three justices wrote separately to stress that the public should not read too much into the high court's decision not to take the case. Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg observed that the intended scope of the Cincinnati law was not clear, and as a result it should not be the job of the Supreme Court to sort that out.
Civil rights groups including the Lambda Legal Defense and Education Fund and the American Civil Liberties Union had urged the Supreme Court to take the case. They had interpreted the initiative broadly as stopping any protections against housing or job discrimination based on sexual orientation and imperiling even an HIV prevention program directed at gay men.
In their appeal to the court in Equality Foundation of Greater Cincinnati v. Cincinnati, they warned that if the 6th Circuit ruling stood, it would "spawn a new generation" of anti-gay legislation. But yesterday, these two groups tried to put the best face on the high court's action. Suzanne B. Goldberg of the Lambda Legal Defense Fund said she was disappointed in the court's action but hoped it would not undermine the 1996 Romer v. Evans decision.
Others weren't so hopeful.
"This is a galling setback," said Marc Slavin, a deputy city attorney in San Francisco, which had joined with several other cities in protesting the appeals court ruling.
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