Equality Foundation of Cincinnati v. Cincinnati

Citation860 F. Supp. 417
Decision Date09 August 1994
Docket NumberNo. C-1-93-773.,C-1-93-773.
PartiesEQUALITY FOUNDATION OF GREATER CINCINNATI, INC. et al., Plaintiffs, v. The CITY OF CINCINNATI, Defendant.
CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia

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Alphonse Adam Gerhardstein, Scott T. Greenwood, Greenwood & Hudson, Cincinnati, OH, Patricia M. Logue, Lambda Legal Defense and Educ. Fund, Chicago, IL, Suzanne B. Goldberg, Lambda Legal Defense and Educ. Fund, New York City, for plaintiffs.

Karl Paul Kadon, III, Cincinnati, OH, for City of Cincinnati.

John Jay Fossett, Fossett Howe Wessels & Ogle, Fort Wright, KY, Michael Carvin, Shaw Pittman Potts & Trowbridge, Washington, DC, for Equal Rights Not Special Rights, Mark Miller, Thomas E. Brinkman, Jr.

Richard Adams Cordray, Ohio Atty. Gen., Columbus, OH, for Lee Fisher.

ORDER ISSUING PERMANENT INJUNCTION

SPIEGEL, District Judge.

This matter is before the Court for decision following a bench trial conducted on June 20-24, 1994. In rendering our decision on this matter, we have considered the testimony of the witnesses, the documents admitted into evidence, the Intervening Defendants' Proposed Findings of Fact and Conclusions of Law (doc. 59), the Plaintiffs' Proposed Findings of Fact and Conclusions of Law (doc. 60), the Defendant's Post Trial brief (doc. 75), the Intervening Defendants' Supplemental Proposed Findings of Fact and Conclusions of Law (doc. 77), the Plaintiffs' Supplemental Proposed Findings of Fact and Conclusions of Law (doc. 78), and the briefs of Amici Curiae, the Ohio Human Rights Bar Association (doc. 12), the Ohio Psychological Association (doc. 14), and the Ohio Attorney General's Office (doc. 80).1

In weighing the testimony of the witnesses, we considered each witness' relationship to the Plaintiff or to the Defendant; their interest, if any, in the outcome of the trial; their manner of testifying, particularly where they testified in Court; their opportunity to observe or acquire knowledge concerning facts about which they testified; and the extent to which they were supported or contradicted by other credible evidence. Under Fed.R.Civ.P. 52, we have set forth our findings of fact and conclusions of law below.

The following decision represents the culmination of at least one phase of an emotional, highly controversial and hotly contested law suit. Both sides have been represented by extremely competent and thoroughly prepared attorneys who presented their respective cases forcefully and persuasively. In light of the nature of this case, it is to their credit that the trial on the merits proceeded in accordance with the highest spirit of cooperation and consideration for each other and the Court. Before rendering our decision, however, we must make a few things clear.

In voiding the Issue 3 Amendment, this Court is in no way giving any group any rights above and beyond those enjoyed by all citizens. To the contrary, we are simply, but crucially, preventing one group of citizens from being deprived of the very rights we all share.

Furthermore, nothing in this Order should be construed in any way as impugning the integrity or motives of those who voted in favor of the passage of the Issue 3 Amendment. Likewise we are not in any way depriving anyone of the right to vote, nor are we undermining the importance of that vote. Rather, this Order merely explores the permissible scope of governmental legislation under the Constitution. And despite the fact that a majority of voters may support a given law, rights protected by the Constitution can never be subordinated to the vote of the majority. While at times this may seem unfair, especially when deeply emotional issues are involved, indeed it is the fairest, and most deeply rooted, of all of this Nations rich traditions. It is in this vein that we make the following ruling.

INTRODUCTION

In 1991 and 1992, by majority vote, the Cincinnati City Council enacted the following ordinances aimed at eradicating certain discriminatory practices within the City of Cincinnati: Cincinnati City Ordinance No. 79-1991 ("Equal Employment Opportunity Ordinance" or "EEO"), and Cincinnati City Ordinance No. 490-1992 ("Human Rights Ordinance" or "HRO").

The EEO prohibits discrimination based upon sexual orientation in city employment and in appointments to city boards and commissions. Discrimination based upon sexual orientation, whether it be heterosexual, gay, lesbian, or bisexual, is prohibited by this ordinance. The EEO also prohibits discrimination based on race, color, sex, disability, religion, national or ethnic origin, age, HIV status, Appalachian regional ancestry, and marital status.

The HRO prohibits discrimination based upon sexual orientation, in the areas of private employment, public accommodations and housing. Discrimination based upon sexual orientation, whether it be heterosexual, lesbian, gay or bisexual, is prohibited by this ordinance. The Human Rights Ordinance provides exemptions for fraternal and religious organizations and expressly prohibits use of the ordinance to create "affirmative action program eligibility." Like the EEO, the HRO also prohibits discrimination based on race, color, sex, disability, religion, national or ethnic origin, age, HIV status, Appalachian regional ancestry, and marital status. The HRO provides civil and criminal penalties for violators of its provisions.2 It also includes a severability clause.3

Largely in response to the enactment of the HRO, a group of individuals formed an organization called "Take Back Cincinnati," which later changed its name to "Equal Rights Not Special Rights." The group organized for the purpose of gathering the signatures sufficient to place on the ballot at the next general election, a proposed amendment to the Charter of the City of Cincinnati. As a result of their efforts, the proposed charter amendment, which became known as Issue 3, was placed on the November 2, 1993 ballot. Issue 3 provides in full:

ARTICLE XII

NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS.

The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment.
This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect.

The campaign for Issue 3 was waged by its proponents largely on the theme of repealing "special rights" for homosexuals. Issue 3's proponents employed the use of, among other things, mailings, television and radio ads and speeches. The theme of gays as pedophiles and homosexuality as simply a matter of "who one chooses to have sex with"4 were far from absent from the campaign.

The Plaintiffs campaign was waged with no less vigor, the most notorious aspect being their ubiquitous "Hitler-KKK-McCarthey" billboards appearing throughout the City. After a bitter and often inflammatory campaign, the voters of Cincinnati approved the measure by a vote of approximately 62% to 38%.

On November 8, 1993 the Plaintiffs filed this law suit challenging the constitutionality of Issue 3. The Plaintiffs allege that Issue 3 violates their rights to equal protection, free speech, free association and redress of grievances guaranteed by the First and Fourteenth Amendments to the United States Constitution. They also claim that Issue 3 is unconstitutionally vague.

With respect to their equal protection claims, they maintain that they belong to a suspect or quasi-suspect class, thus requiring strict or heightened judicial scrutiny of Issue 3. Strict scrutiny is also necessary, according to the Plaintiffs, because Issue 3 violates their constitutional right to equal access to the political process. They further maintain that Issue 3 is unconstitutional under any equal protection standard of review because it is not even rationally related to any legitimate governmental purpose. The Plaintiffs have filed this suit under 42 U.S.C. § 1983.

On the other hand, the Defendants maintain that there is no "fundamental right to equal participation in the political process" nor are the Plaintiffs members of a suspect or quasi-suspect group. Thus, they claim, Issue 3 need not be subjected to strict or heightened scrutiny, but rather only rational basis review. The Defendants have presented several governmental interests they claim Issue 3 furthers, and which, they maintain, are sufficient to survive review under any of the equal protection standards.

For example, the Defendants claim that Issue 3 serves the governmental purposes of saving scarce resources and reducing the level of governmental regulation imposed upon the citizenry. They also claim that Issue 3 promotes diversity of thought and allows different groups in the community to hold divergent views on this question by "not imposing a uniform, doctrinaire view concerning the moral relevance of homosexual behavior on all segments of the community."

The Defendants further claim that Issue 3 gives legal effect to Cincinnati's collective notion of morality, and also serves to protect and nurture the nuclear family. Additionally, the Defendants maintain that Issue 3 advances democracy and political integrity by allowing the citizens to make this important decision for themselves and preserves their ability to define and limit the powers of their elected representatives. Issue 3, the Defendants contend, is simply a legitimate restriction on the scope of the City Council's powers to deal with certain issues of public...

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11 cases
  • DeMuth v. Miller
    • United States
    • Superior Court of Pennsylvania
    • 11 Enero 1995
    ...determined that classifications based on sexual orientation are, indeed, quasi-suspect. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F.Supp. 417 (S.D.Ohio 1994) (enjoining voter-initiated amendment to city charter that would bar city from prohibiting discrimina......
  • Pedersen v. Office of Pers. Mgmt.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 31 Julio 2012
    ...plainly has no relevance to a person's 'ability to perform or contribute to society.'"); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D. Ohio 1994) ("[s]exual orientation ... bears no relation whatsoever to an individual's ability to perform, or to ......
  • DEAN v. DISTRICT OF COLUMBIA, 92-CV-737
    • United States
    • Court of Appeals of Columbia District
    • 19 Enero 1995
    ...have suffered a history of discrimination and still do, though possibly now in less degree."); Equality Foundation of Greater Cincinnati v. Cincinnati, 860 F. Supp. 417, 435 (S.D. Ohio 1994) ("gays and lesbians have suffered a history of invidious discrimination based on their sexual orient......
  • Kerrigan v. Commissioner of Public Health, 17716.
    • United States
    • Supreme Court of Connecticut
    • 28 Octubre 2008
    ...quotation marks omitted]), cert. denied, 498 U.S. 957, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D.Ohio 1994) ("[S]exual orientation . . . bears no relation whatsoever to an individual's ability to perform, ......
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5 books & journal articles
  • Equal Protection
    • United States
    • Georgetown Journal of Gender and the Law No. XXIII-2, January 2022
    • 1 Enero 2022
    ...analysis does not apply because of the military setting of the case); Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp. 417, 440 (S.D. Ohio 1994) (holding that homosexuals are a group warranting intermediate scrutiny), rev’d , 54 F.3d 261 (6th Cir. 1995), vacated......
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    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 92, 2021
    • Invalid date
    ...throughout history, across cultures, and in the United States."). 35. Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp. 417, 437 (S.D. Ohio 1994), rev'd and vacated, 54 F.3d 261 (6th Cir. 1995), cert. granted, judgment vacated, 518 U.S. 1001 (1996), and rev'd and......
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    • United States
    • University of Pennsylvania Law Review Vol. 156 No. 2, December 2007
    • 1 Diciembre 2007
    ..."fence out" a politically identifiable segment of the electorate. See Equal. Found. of Greater Cincinnati v. City of Cincinnati, Inc., 860 F. Supp. 417, 433-34 (S.D. Ohio 1994) (declaring invalid a city charter amendment that purportedly fenced out homosexuals from the political process), r......
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    • United States
    • Seattle University School of Law Seattle University Law Review No. 35-01, September 2011
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    ...Court has, and should, accord political powerlessness little weight); see also Equal. Found. of Greater Cincinnati, Inc. v. Cincinnati, 860 F. Supp. 417, 437-38 n.17 (S.D. Ohio 1994), rev'd, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001 (1996) ("[T]he significance of [the......
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