Appeals court upholds anti-gay referendum Cincinnati voters repealed 2 gay rights ordinances, barred future protections

October 24, 1997|By Lyle Denniston NTC | Lyle Denniston NTC,SUN NATIONAL STAFF

WASHINGTON -- In a setback for the rights of gays and lesbians, a federal appeals court ruled yesterday that city and county governments have full authority to bar local officials from acting to protect homosexuals against discrimination.

Because such a ban is "of purely local scope," the appeals court said, it does not run afoul of a 1996 Supreme Court ruling on gay rights. That ruling struck down a Colorado referendum that barred all gay rights laws at every level of state and local government.

1993 referendum

The new decision, by the 6th U.S. Circuit Court of Appeals in Cincinnati, upheld a 1993 voter referendum in Cincinnati. The referendum -- called Issue 3 -- wiped out two gay rights ordinances and barred any new laws to protect homosexuals in jobs, housing and public contracts.

After the Supreme Court's decision in the Colorado case, it told that appeals court to look anew at the constitutionality of the Cincinnati anti-gay-rights ordinance, which the appeals court had upheld in 1995. That led to yesterday's decision putting Issue 3 into effect.

The latest appeals court ruling seems likely to be appealed back to the Supreme Court.

Yesterday's ruling echoed the views of three Supreme Court justices, who had argued last year that the Colorado ruling favoring gay rights should not be applied to the city or county level.

Those three were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

'Renegade decision'

Patricia M. Logue, an attorney for the Lambda Legal Defense Fund in Chicago, who represented gay rights activists challenging Issue 3, called yesterday's ruling "a renegade decision approving a clone of the Colorado ballot measure thrown out by the Supreme Court. Upholding Issue 3 is simply indefensible."

Lambda said it would "look closely at whether we again will appeal to the Supreme Court."

The Family Research Council, a group that favored the Cincinnati law, praised the appeals court.

"The fact that a court at the second-highest level recognizes this as a reasonable step is encouraging," said Marty Dannenfelser, a spokesman for the council.

High court may change

Dannenfelser said the return of the case to the Supreme Court might lead the justices "to show more deference to communities and to the beliefs of millions of Americans."

The Cincinnati ban is the only local law in the nation against gay rights protections. Last year, a Florida state judge struck down a similar ordinance in Alachua County.

Yesterday's ruling could rekindle a campaign among anti-gay-rights groups to put measures on the ballot in other cities and states -- a campaign that had stalled after the Supreme Court's Colorado ruling in favor of gay rights.

The appeals court interpreted the Colorado decision as a narrow one that applies only when a state, acting out of hostility to homosexuals, amends its constitution to forbid gay rights laws at state, county and city levels.

When Cincinnati's voters approved Issue 3 as an amendment to their city charter, the appeals court said, they were not acting out of a "desire to injure an unpopular group of citizens."

Avoids enforcement costs

At least one valid reason for the amendment, the appeals court said, was to avoid the costs of enforcing a new range of anti-discrimination protections.

The city amendment, the court added, did not leave homosexuals unable to obtain protection against discrimination, as the Colorado amendment did.

In Cincinnati, gays and lesbians remain free to try to repeal the local law or to pursue protective laws at higher levels of state government or to the voters of the state, the court said.

The main effect of Issue 3, it said, is to bar "special class status and preferential treatment for gays as gays" in that city.

Homosexuals are still protected by general laws that protect everyone else, the court said.

Pub Date: 10/24/97

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