Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati

• Decision Date: 12 May 1995
• Docket Number: Nos. 94-3855,94-3973,94-4280,s. 94-3855
• Citation: 54 F.3d 261
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1290, 66 Empl. Prac. Dec. P 43,542, 63 USLW 2706 EQUALITY FOUNDATION OF GREATER CINCINNATI, INC., Richard Buchanan, Chad Bush, Edwin Greene, Rita Mathis, Roger Asterino, and H.O.M.E., Inc., Plaintiffs-Appellees, v. CITY OF CINCINNATI (94-3973/4280), Defendant-Appellant, Equal Rights Not Special Rights, Mark Miller, Thomas E. Brinkman, Jr., and Albert Moore (94-3855), Intervening Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 261

54 F.3d 261

67 Fair Empl.Prac.Cas. (BNA) 1290,

66 Empl. Prac. Dec. P 43,542, 63 USLW 2706

EQUALITY FOUNDATION OF GREATER CINCINNATI, INC., Richard Buchanan, Chad Bush, Edwin Greene, Rita Mathis Roger Asterino, and H.O.M.E., Inc. Plaintiffs-Appellees, v. CITY OF CINCINNATI (94-3973/4280), Defendant-Appellant Equal Rights Not Special Rights, Mark Miller, Thomas E Brinkman, Jr., and Albert Moore (94-3855), Intervening Defendants-Appellants.

Nos. 94-3855, 94-3973, 94-4280.

United States Court of Appeals, Sixth Circuit.

May 12, 1995.

Suzanne B. Goldberg (briefed), New York City, Alphonse A. Gerhardstein (argued and briefed), Laufman, Rauh & Gerhardstein, Scott T. Greenwood (briefed), Greenwood & Hudson, Cincinnati, OH, Patricia M. Logue (briefed), Chicago, IL, for plaintiffs-appellees.

Karl P. Kadon, III (argued), City Solicitor's Office for the City of Cincinnati, Cincinnati, OH, for defendant.

Michael A. Carvin (argued and briefed), William L. McGrath (briefed), Shaw, Pittman, Potts & Trowbridge, Washington, DC, John J. Fossett, Fossett, Howe, Wessels & Ogle, Ft. Wright, KY, Robert K. Skolrood, National Legal Foundation, Virginia Beach, VA, Robert H. Bork, American Enterprise Institute for Public Research, Washington, DC, for intervenors-appellants.

Thomas W. Condit (briefed), Condit & Dressing, Cincinnati, OH, amicus curiae The American Family Ass'n of Ohio.

Robert E. Manley (briefed), Manley, Burke, Fischer & Lipton, Cincinnati, OH, amicus curiae Cincinnati Federation of Teachers, et al.

Alice L. Brown, Alan Jenkins (briefed), NAACP Legal Defense & Educational Fund, New York City, amicus curiae NAACP Legal Defense and Educational Fund, Inc.

Eric J. Graninger (briefed), Louisville, KY, amicus curiae James E. Andrews.

Paul M. Smith (briefed), Jenner & Block, Washington, DC, amicus curiae The American Psychological Ass'n, et al.

Richard A. Cordray (briefed), Marianne Neal, Asst. Atty. Gen., Office of the Atty. Gen. of Ohio, Columbus, OH, amicus curiae Ohio Atty. Gen.

Before: KENNEDY, KRUPANSKY, and NORRIS, Circuit Judges.

KRUPANSKY, Circuit Judge.

In case numbers 94-3855/3973, defendant/appellant the City of Cincinnati ("the City"), and intervening defendants/appellants Equal Rights Not Special Rights ("ERNSR"), Mark Miller, Thomas E. Brinkman, Jr., and Albert Moore, challenged the lower court's invalidation of, and permanent injunction restraining implementation of, an amendment to the City Charter of Cincinnati ("the Charter") denominated "Issue 3" which was enacted by popular vote on November 2, 1993 and which then became Article XII of the Charter ("the Amendment"), for purported constitutional infirmities. In case number 94-4280, the City contested the district court's award of attorneys' fees and costs in favor of the plaintiffs.

On March 13, 1991, the Cincinnati City Council (the "Council") enacted Ordinance No. 79-1991, commonly known as the "Equal Employment Opportunity Ordinance." This measure provided that the City could not discriminate in its own hiring practices on the basis of

classification factors such as race, color, sex, handicap, religion, national or ethnic origin, age, sexual orientation, HIV status, Appalachian regional ancestry, and marital status. (Emphasis added).

Subsequently, Council on November 25, 1992 adopted Ordinance No. 490-1992 (commonly referred to as the "Human Rights Ordinance") which prohibited, among other things, private discrimination in employment, housing, or public accommodation for reasons of sexual orientation. The opening paragraph of the Human Rights Ordinance expressed the purpose for the legislation as:

PROHIBITING unlawful discriminatory practices in the City of Cincinnati based on race, gender, age, color, religion, disability status, sexual orientation, marital status, or ethnic, national or Appalachian regional origin, in employment, housing, and public accommodations by ordaining Chapter 914, Cincinnati Municipal Code. (Emphasis added).

Among other things, the new law created complaint and hearing procedures for purported victims of sexual orientation discrimination, and exposed offenders to potential civil and criminal penalties.

ERNSR was organized for the purpose of eliminating special legal protection accorded to persons based upon their sexual orientation pursuant to the Human Rights Ordinance. ERNSR campaigned to rescind the Human Rights Ordinance by enacting a proposed City Charter amendment (Issue 3), which was to be submitted directly to the voters on the November 2, 1993 local ballot. On July 6, 1993, plaintiff Equality Foundation of Greater Cincinnati, Inc. ("Equality Foundation") was incorporated by the opponents of the ERNSR agenda. A vigorous political contest between ERNSR and Equality Foundation, involving aggressive campaigning by both sides and high media exposure, ensued over Issue 3.

The ERNSR-sponsored proposed charter amendment ultimately appeared on the November 2, 1993 ballot as:

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.

Issue 3 passed by a popular vote of approximately 62% in favor and 38% opposed and became Amendment XII to the Cincinnati City Charter.

On November 8, 1993, plaintiffs Equality Foundation, several individual homosexuals (Richard Buchanan, Chad Bush, Edwin Greene, Rita Mathis, and Roger Asterino), and Housing Opportunities Made Equal, Inc. ("H.O.M.E.") (a housing rights organization) filed a complaint against the City under 42 U.S.C. Sec. 1983 which alleged that their constitutional rights had been, or would potentially be, violated by the adoption of Issue 3, and sought temporary and permanent injunctive relief, a declaration that the Amendment was unconstitutional, and an award of costs (including attorneys' fees) under 42 U.S.C. Sec. 1988. On November 15, 1993, ERNSR, Mark Miller, Thomas E. Brinkman, Jr., and Albert Moore moved to intervene as parties allied with the City. On November 16, 1993, the trial court preliminarily enjoined the City from enforcing the Amendment. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati (Equality I), 838 F.Supp. 1235, 1243 (S.D.Ohio 1993). On December 27, 1993, the district court granted the intervention motion. On June 3, 1994, the trial court rejected a summary judgment motion initiated by the City and ERNSR.

A bench trial was conducted which generated extensive expert testimony reflecting the social, political, and economic standing of homosexuals throughout the nation and the homophobic discriminations that had been experienced by the individual plaintiffs and others. Subsequent to trial the judge issued extensive findings of fact. ¹ Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati (Equality II), 860 F.Supp. 417, 426-27 (S.D. Ohio 1994). It concluded that the Amendment infringed the plaintiffs' purported "fundamental right to equal access to the political process," as well as First Amendment rights of free speech and association and the right to petition the government for redress of grievances, which violations of constitutional rights subjected the Amendment to a "strict scrutiny" constitutional evaluation. Additionally, the district court posited that, because homosexuals collectively comprise a "quasi-suspect class," the Amendment was alternatively reviewable under the intermediate "heightened scrutiny" constitutional standard. Moreover, the lower court found that "[the Amendment] was insufficiently linked to any governmental interest to pass constitutional muster" even under the deferential "rational basis" test. Finally, the district court adjudged the Amendment constitutionally deficient for vagueness. Id. at 449. On November 15, 1994, the district court awarded $339,430.25 in attorneys' fees plus $35,028.07 in costs to the plaintiffs, to be paid by the City.

Generally, this court reviews findings of fact for clear error and conclusions of law de novo. United States v. Critton, 43 F.3d 1089, 1098 (6th Cir.1995); Rodgers v. Jabe, 43 F.3d 1082, 1085 (6th Cir.1995). However, where ostensible "findings of fact" are, in reality, findings of "ultimate" facts which entail the application of law, or constitute sociological judgments which transcend ordinary factual determinations, such "findings" must be reviewed de novo. Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 500-01 & n. 16, 104 S.Ct. 1949, 1959 & n. 16, 80 L.Ed.2d 502 (1984); Powell v. Texas, 392 U.S. 514, 521-22, 88 S.Ct. 2145, 2148-49, 20 L.Ed.2d 1254 (1968); Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir.1989). Moreover, mixed questions of law and fact, like pure questions of law or of statutory interpretation, are reviewed de novo. Paul Revere Life Insurance Co. v. Brock, 28 F.3d 551, 553 (6th Cir.1994). Furthermore, the sufficiency of the evidence to support a finding that a constitutional predicate (such as "actual malice" in a defamation action prosecuted by a public official) has been satisfied presents a question of law. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685-89, 109 S.Ct. 2678, 2694-96, 105 L.Ed.2d 562 (1989); New York Times v. Sullivan, 376 U.S. 254, 284-86 & n. 26, 84 S.Ct. 710, 728-29 & n. 26, 11 L.Ed.2d 686 (1964). Because most, if not all, of the...