Hyman v. City of Louisville

• Decision Date: 21 March 2001
• Docket Number: Civ.A. No. 399CV597S.
• Citation: 132 F.Supp.2d 528
• Court: U.S. District Court — Western District of Kentucky
• Parties: J. Barrett HYMAN, M.D., Plaintiff, v. The CITY OF LOUISVILLE, et al., Defendants.

132 F.Supp.2d 528

J. Barrett HYMAN, M.D., Plaintiff, v. The CITY OF LOUISVILLE, et al., Defendants.

Civ.A. No. 399CV597S.

United States District Court, W.D. Kentucky, at Louisville.

March 21, 2001.

COPYRIGHT MATERIAL OMITTED

Jay Alan Sekulow, Atlanta, GA, Francis J. Manion, American Center for Law & Justice-Midwest, New Hope, KY, for plaintiff, J. Barrett Hyman, M.D.

William C. Stone, Thomas Gregg Lukins, Barbara E. Elliott, City Law Department, Louisville, KY, for defendants, City of Louisville, David Armstrong, Mayor of City of Louisville, Louisville and Jefferson County Human Relations Commission, Phyllis Atiba Brown, Executive Director of the Louisville and Jefferson County Human Relations Commission.

Stuart L. Adams, Jr., Louisville, KY, for defendants, Jefferson County, Kentucky and Rebecca Jackson, Jefferson County Judge/Executive.

Jonathan C. Hardy, Priddy Isenberg, Miller & Meade, Louisville, KY, David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, KY, Michael Adams, Leslie Cooper, Matthew Coles, American Civil Liberties Union Foundation, New York City, for intervenor defendants, Fairness Campaign, Dan Farrell, and Diane Moten.

Meredith L. Burrell, Aaron D. Schuham, Janie Allison Sitton, United States Department of Justice, Civil Rights Division, Washington, DC, for amicus, United States of America.

MEMORANDUM OPINION

SIMPSON, Chief Judge.

In February of 1999, the City of Louisville amended its Code of Ordinances so as to prohibit, in connection with employment, discrimination "because of ... sexual orientation or gender identity....."¹ In October of that same year, Jefferson County, Kentucky, which is comprised of the City of Louisville as well as other cities and unincorporated areas, amended its Code of Ordinances somewhat more broadly, prohibiting discrimination on the basis of gender identity or sexual orientation not only in connection with employment, but also with access to housing and public accommodations.²

In addition to the general prohibitions set forth above, both ordinances contain provisions which prohibit employers from, inter alia, publishing any advertisement relating to employment which indicates a preference based upon gender identity or sexual orientation. See Lou.Code Ord. § 98.17(D); Jeff.Co.Code Ord. § 92.06(E). Both ordinances also prohibit any person from inciting another to violate the substantive provisions of the ordinances. See Lou.Code Ord. § 98.17(F)(2); Jeff.Co.Code Ord. § 92.16(B). Finally, both ordinances contain identical exemptions which state that the ordinances "in regard to sexual orientation or gender identity shall not apply to a religious institution, or to an organization operated for charitable or educational purposes, which is operated, supervised, or controlled by a religious corporation, association or society." Lou. Code Ord. § 98.00; Jeff.Co.Code Ord. § 92.07(B).

The plaintiff, J. Barrett Hyman, M.D. ("Dr.Hyman") is a physician whose medical practice is said to be located in the City of Louisville. Thus, both the City and the County Ordinances may apply to him in the conduct of the employment function of his business as a medical practitioner.³ Contending that his religious beliefs so conflict with the ordinances' proscriptions that he will not comply with them and that he thus risks prosecution on account of his religion, Dr. Hyman filed this action seeking to have the ordinances declared invalid insofar as they pertain to employment discrimination on the basis of sexual orientation and gender identity.

The Fairness Campaign, a political action group, advocated the adoption of the changes to the ordinances and conducted a public campaign in support of its position at the times the City and the County legislative bodies were considering the amendments they eventually enacted. It, together with Dan Ferrell and Diane Moten, two self-described homosexuals, were allowed to intervene permissively. See DN 19. The United States, by its Department of Justice, was granted amicus curiae status. See DN 46. All parties⁴ have moved for summary judgment. We now address these motions.

STANDARD OF REVIEW

A motion for summary judgment will be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). According to the Supreme Court, the standard is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Faced with a motion for summary judgment, the nonmoving party must come forth with requisite proof to support its legal claim, particularly where the opposing party has had an opportunity to conduct discovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In the Sixth Circuit, "[t]he `mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). "[T]his standard requires a court to make a preliminary assessment of the evidence, in order to decide whether the plaintiff's evidence concerns a material issue and is more than de minimis." Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996).

When faced with cross-motions for summary judgment, a district court is authorized to "`assume that there is no evidence which needs to be considered other than that which has been filed by the parties.'" Greer v. United States, 207 F.3d 322, 326 (6th Cir.2000) (quoting Harrison Western Corp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir.1981)). However, the standards upon which the court evaluates the motions for summary judgment do not change. See Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (citing Home for Crippled Children v. Prudential Ins. Co., 590 F.Supp. 1490, 1495 (W.D.Pa.1984)). Instead, "the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Taft Broadcasting, 929 F.2d at 248 (citations omitted).

DR. HYMAN'S CONTENTIONS

Dr. Hyman alleges that he "believes that acts of homosexuality, bisexuality, transgenderism and other departures from monogamous heterosexual relations are sinful and grievously offensive to God." Am. Compl. at ¶ 10. He contends that his beliefs are inconsistent with the requirements of both the City and the County Ordinances and that because of his religious beliefs, he "will deny employment and discharge certain persons on the basis of sexual orientation and/or gender identity. ..." Am.Compl. at ¶ 20. Therefore, Dr. Hyman claims that he is faced with the "Hobson's choice" of either obeying the laws of Louisville and Jefferson County or obeying the laws of his conscience.

Dr. Hyman further states that in recent months he attempted to place in the Courier-Journal, a Louisville newspaper, an advertisement which purportedly violates both ordinances. He asserts that the newspaper would not allow his ad to be placed because of its "discriminatory" content. See Pl.'s Mot. Supplement R., Ex. A (DN 52) ("Hyman Affidavit").

Finally, Dr. Hyman indicates that he is in the process of hiring a new employee. See id. As a part of the hiring process, Dr. Hyman is said to have inquired into two applicants' sexual orientation intending to take this fact into account in reaching an employment decision.

Dr. Hyman claims that the ordinances deprive him of rights protected by the United States Constitution in violation of 42 U.S.C. § 1983. See Am.Compl. at ¶ 29-55. In addition, he contends that the ordinances violate the Kentucky Constitution and several statutes of the Commonwealth of Kentucky. See id. at ¶¶ 56-85. He seeks, inter alia, declaratory relief pursuant to 28 U.S.C. §§ 2201, 2202.

Each of these contentions, as well as the defendants' responses thereto, will be discussed below.

DISCUSSION

I. Standing & Ripeness

The City Defendants initially argue that Dr. Hyman lacks standing to challenge the constitutionality of the ordinances.⁵ In the alternative, the City Defendants contend that despite the plaintiff's proper standing, his claims are not presently ripe for adjudication.

A. Standing

Disputes between parties must constitute actual "cases" or "controversies" to be cognizable by a federal court. U.S. Const. art. III, § 2. The standing doctrine implements this limitation on federal judicial power. In order to have standing to assert a claim, a plaintiff is required to demonstrate that he or she has "suffered an injury-in-fact that is fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Peoples Rights Organization, Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir.1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In this case, the parties' briefs indicate that the sole aspect of the standing doctrine in dispute is whether Dr. Hyman has suffered an "injury-in-fact" as required by Article III. Therefore, we focus our inquiry on this point and assume there is no dispute that Dr. Hyman has sufficiently demonstrated the causation and redressability aspects of the standing inquiry.

An injury-in-fact for the purposes of Article III is "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) `actual or imminent', not `conjectural' or `hypothetical.'" Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations omitted). In order to have standing to bring suit, an individual must demonstrate that he or she "`has sustained or is immediately...