Cincinnati antigay measure upheld by Sixth Circuit.

After surviving appellate scrutiny--again --a controversial antigay charter amendment in Cincinnati appears destined for the U.S. Supreme Court--again.

On February 5, a majority of the Sixth Circuit denied en banc review of an earlier three-judge panel decision upholding the constitutionality of Issue 3, a charter amendment adopted by voters in Cincinnati in 1993. Issue 3 forbids the Ohio city to adopt any ordinance that would give gays, lesbians, or bisexuals "any claim of minority or protected status, quota preference, or other preferential treatment" in employment, housing, and public accommodations. (Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 E3d 289 (6th Cir. Oct. 23, 1997), reh'g denied, 1998 U.S. App. LEXIS 1765 (Feb. 5, 1998).)

Issue 3 has been hotly contested because its opponents say it is contrary to the 1996 Supreme Court decision in Romer v. Evans, which struck down a similar statewide measure in Colorado. (116 S. Ct. 1620 (1996).)

The Court's decision in Romer invalidated an amendment to Colorado's constitution that barred statewide adoption of policies protecting homosexuals against discrimination. The Court ruled that the measure--known as Amendment 2--violated the Fourteenth Amendment's Equal Protection Clause. (Donald A. Dripps, A new era for gay rights? TRIAL, Sept. 1996, at 18.)

Issue 3, which has never been enforced, has been snaking its way through the courts ever since its passage. A district court judge found it unconstitutional. A three-judge panel of the Sixth Circuit disagreed, and the case was appealed to the Supreme Court, which sent it back down to the appellate court for reconsideration in light of Romer. Undaunted, the panel stuck to its original decision, and the full Sixth Circuit agreed.

Judge Danny Boggs, concurring with the panel's decision, likely gave some insight into the majority's reasoning. "In Romer, the Supreme Court said that [a] state cannot... `deem a class of persons a stranger to its laws.' In the present case, no state has done so. Instead, a city has made a political judgment that it will not enact gay-rights measures," Boggs wrote.

Six dissenting judges said the panel's opinion conflicted with the Supreme Court's decision in Romer. They wrote: "Romer was decided on equal protection grounds, which applies to local as well as state governmental action. Therefore, the fact that Issue Three is a local as opposed to a state measure is of no controlling significance for purposes of the Equal Protection Clause."

The Sixth Circuit judges added that Issue 3 fails to abide by the key ruling in Romer that "a law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense."

Cincinnati attorney Alphonse Gerhardstein, who is lead counsel for the plaintiffs in Equality Foundation, said he will ask the Supreme Court to review the Sixth Circuit's latest decision. "I'm encouraged by the tone of the dissent," he said. "The dissenting judges had it right when they called the city-state argument a `distinction without a difference.'"

Interestingly, the language used in Issue 3 and the language used in Amendment 2 are nearly identical except that Issue 3 applies only at the city level, not the state level.

But Erwin Chemerinsky, a professor of constitutional law at the University of Southern California in Los Angeles, called that distinction "indefensible."

He added, "Both measures allow every group access to the political process except gays and lesbians."

Gerhardstein agreed. "We are only here because there is an unfortunate hypocrisy in the law that allows the rules to get bent [against] unpopular plaintiffs, such as gays and lesbians, pregnant women, and prisoners," he said. "It's the job of plaintiff lawyers to expose the double standard and hope that `right makes might,' as Abraham Lincoln once said."