WASHINGTON -- In a major setback for gay rights, the Supreme Court voted yesterday to allow Cincinnati to begin enforcing a ban on any new local laws to protect homosexuals.
Two years after the high court raised doubts about the constitutionality of that ban, the justices refused to hear a new challenge to it. They gave no reasons, leaving unclear just when government can establish a barrier to laws that protect gay rights.
The court's unexplained action came against a background of anxiety among homosexuals after the fatal attack of a gay University of Wyoming student. Some gay rights advocates fear that ordinances like the one in Cincinnati might prevent the passage of hate crimes laws that would deter violent crimes against homosexuals.
The Cincinnati ordinance is the nation's last survivor among a series of anti-homosexual measures adopted by voter initiatives. As a result, the conflict over the ordinance had become a major battleground.
The 1993 ordinance bans any policies that give homosexuals legal protection -- in housing or employment, for example -- based on their sexual orientation or conduct. It also bars "any claim of minority or protected status, quota preference or other preferential treatment." The ordinance has never been enforced because of the legal challenge.
The ordinance appeared to be doomed in 1996, when the Supreme Court struck down a Colorado referendum measure on which the Ohio city's ordinance had been patterned. That decision was the first by the court to uphold gay rights.
Colorado's voter-approved Amendment 2, like Cincinnati's Issue 3, repealed existing gay rights laws. It also banned any new ones unless the state constitution was first amended.
Amendment 2 was a statewide measure, but it was otherwise nearly identical to Cincinnati's citywide Issue 3. The Cincinnati ordinance wiped out an existing gay rights ordinance and banned new ones, unless the charter was amended first.
After the Colorado decision, the justices ordered a federal appeals court to apply that ruling to the Cincinnati ordinance. But the appeals court upheld the Cincinnati law a second time, saying the Colorado ruling applied only to statewide, not local, bans on gay rights protection.
Gay rights groups took the dispute back to the Supreme Court. They argued that "a city has no greater constitutional authority than a state to relegate one class of citizens to permanent inequality before the law." Cincinnati's ordinance, the gay rights groups -argued, was so clearly unconstitutional that the court should strike it down without even holding a hearing.
A group of cities -- including Philadelphia, New York, Atlanta, Los Angeles and San Francisco -- supported the appeal, saying that "it would be difficult to find a case more clearly governed" by the court's decision in the Colorado case. The cities said there were "only minor differences" between the two measures.
But rather than returning to the issue, the Supreme Court refused yesterday to consider the new challenge. It was not clear how the vote among the justices was divided. Three justices, plainly troubled by the Cincinnati ordinance but apparently unable to gather the four votes needed to review it, issued an unusual statement seeking to diminish the significance of what the court had done.
Justice John Paul Stevens, writing for those three, cautioned that the court's action "should not be interpreted as an expression of its views" about the constitutionality of such ordinances. Stevens, joined by Justices Ruth Bader Ginsburg and David H. Souter, said there was "confusion" over what the Cincinnati ordinance banned.
A denial of review, they said, might mean nothing more than that the particular case was not an appropriate one to decide the issues raised. Dispute over similar bans could return to the court -- perhaps even in a case from Cincinnati, depending on how Issue 3 is enforced.
Because there are no other anti-gay restrictions in the country, Cincinnati may continue as the main battleground. But opponents of gay rights are gathering signatures in other cities to repeal local gay rights laws.
In May, voters in Ypsilanti, Mich., rejected a proposed repeal of that city's ban on discrimination against homosexuals. But in February, voters in Maine voted to repeal the state's gay rights law -- the first such repeal of a statewide measure. The Maine law had been enacted in 1997, but opponents gathered enough signatures to block its enforcement and seek its repeal in a referendum.
Gay rights groups rushed yesterday to exploit Stevens' statement and to suggest that the court had not retreated at all from its Colorado ruling.
The Lambda Legal Defense Fund, one of the challengers to the Cincinnati ordinance, said it was "disappointed that the high court did not put Issue 3 to rest once and for all." But it asserted that the action "has no implications beyond" the Cincinnati case.
The battle will go on in Cincinnati, according to Lambda's executive director, Kevin M. Cathcart. Among other challenges that could be launched are protests to the way Issue 3 is implemented by city agencies.
Opponents of gay rights laws saw the court's action as a signal to other cities that they could pass bans similar to Cincinnati's. Any city considering a measure like Issue 3, said Janet M. LaRue, legal director of the Family Research Council, "would be very wise to go ahead."
She said that such cities should "not change a word" from the Cincinnati version and "hope for the best" when the measure is challenged in court. By its action yesterday, LaRue said, the court signaled that it "could not find a constitutional basis for striking down the Cincinnati ordinance."
Pub Date: 10/14/98