Gay-rights advocates lose special-protections fight

0 Comments | Insight on the News, June 12, 1995 | by Joyce Price

Gay- and civil-rights proponents are calling a court decision denying homosexuals special protection under the law 'a terrible precedent.' Conservatives, however, claim that gays are not a true minority.

A federal court rebuffed claims that a Cincinnati charter amendment violates homosexuals' First Amendment rights to petition and engage in political speech and association. The ruling by a three-judge panel is the first "to uphold an antigay initiative," notes Suzanne B. Goldberg, a New York lawyer with the Lambda Legal Defense and Education Fund, a homosexual-rights group. "We're very depressed," says Chris Link, executive director of the American Civil Liberties Union of Ohio, which joined Lambda in challenging the amendment.

According to the 6th U.S. Circuit Court of Appeals, however, "the reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives and thoughts. Those persons having a homosexual 'orientation' simply do not, as such, comprise an identifiable class."

The court overturned a ruling by U.S. District Judge S. Arthur Spiegel, who determined last year that a Cincinnati charter amendment violated homosexuals' free-speech and equal-protection rights. The amendment, known as Issue 3, was passed overwhelmingly by voters in 1993; it repealed a ordinance enacted by the city council prohibiting employment and housing discrimination based upon sexual orientation.

Lambda and the Ohio Chapter of the ACLU challenged Issue 3 in court. (Groups including People for the American Way, the NAACP Legal Defense and Education Fund and the Anti-Defamation League filed friend-of-the-court briefs.) The city of Cincinnati and a citizen group called Equal Rights, Not Special Rights, appealed the original decision.

"The court has finally said what the Traditional Values Coalition has been saying all along: Homosexuality is a behavior-based lifestyle and not a true minority class of people," says the Rev. Louis Sheldon, chairman of the coalition. "There are not many federal panels that would support the conservative view of homosexuality, but thank God we found one."

Lambda's Goldberg maintains that the ruling shows a "shocking disregard for basic constitutional guarantees," and says "it sets up a second-class citizenship for gay people and leaves all Americans vulnerable to being similarly excluded from the political process."

The ACLU's Link says the appellate ruling will be appealed in the U.S. Supreme Court, "and we expect it to be consolidated with the Colorado case," referring to a similar antihomosexual-rights ballot measure, Amendment 2, which the Supreme Court has agreed to review. A Colorado state court struck down Amendment 2, and the state Supreme Court in October upheld that decision.

"It's a terrible precedent if people can go to the polls and vote down the rights of people they don't like," remarks Link.