Court Deals Gay Rights a Setback

In a setback for the gay rights movement, the Supreme Court on Tuesday let stand a city charter amendment approved by Cincinnati’s voters that permits employers, landlords and business owners to discriminate against people based on their sexual orientation.

Two years ago, the high court struck down a similar Colorado amendment and declared that a state cannot make gays as a group “a stranger to its laws.”

Both hopeful and confident, gay rights advocates had urged the justices to strike down the Cincinnati ordinance on the same grounds. But without explaining why, the court refused to do so Tuesday.

Instead, the justices dismissed the challenge to the Cincinnati law and let stand a lower court ruling that says the move to extend broad civil rights protections to gays depends on the “popular will,” not the courts.

“This means each city is free to decide for itself whether it wants gay rights protections,” said Michael A. Carvin, a lawyer for the citizens group known as “Take Back Cincinnati.”

Justices May Be Divided on Issue

Tuesday’s cautious non-decision by the high court is likely to spawn confusion about the law. At a minimum, it suggests again that the justices are closely divided on the issue of gay rights and are wary of moving quickly or boldly. Whenever possible, the current Supreme Court is inclined to defer to elected lawmakers.

In the last 20 years, cities such as Los Angeles, San Diego and San Francisco, followed by the state of California, have enacted laws that forbid discrimination based on sexual orientation in jobs, housing and public services.

Most states and cities do not have such measures, however. Only nine states other than California forbid job discrimination against gays.

And Congress has not passed a federal antidiscrimination law for gays and lesbians. In 1996, the Senate fell one vote short of amending the job discrimination law to include gays.

As a result, the issue largely has been fought in city councils and state legislatures.

In 1992, the Cincinnati City Council amended its local antidiscrimination ordinance to add “sexual orientation” to its long list of prohibitions. They included bias based on “race, gender, age, color, religion, disability status, marital status, national origin”--and in a local twist--discrimination based on “Appalachian regional origin.”

A year later, the city’s residents, by a 62%-38% margin, voted to repeal the ban on sexual orientation discrimination.

The charter amendment said: “No special class status may be granted based upon sexual orientation, conduct or relationships.” Specifically, city officials were told that they “may not enact [or] enforce . . . any regulation, rule or policy” which gives gays or lesbians a “protected status” under the law.

A local gay rights group sued the city and a federal judge struck down the ordinance as unconstitutional on grounds that it deprived gays of the equal rights “enjoyed by all citizens.”

Disagreeing, the U.S. 6th Circuit Court of Appeals, which is based in Cincinnati, revived the charter amendment. The ordinance simply prevented gays from obtaining “special privileges and preferences,” akin to affirmative action, a three-judge panel said in 1995.

A year later--after the Supreme Court threw out the Colorado initiative--it granted an appeal of that decision by gay rights lawyers, vacated the ruling of the 6th Circuit panel and sent the case back to the appeals court for further consideration.

But after brief, further consideration, the three-judge panel again upheld the Cincinnati ordinance.

Lawyers for the Lambda Legal Defense Fund again appealed the case to the high court. But Tuesday, the justices simply denied their appeal (Equality Foundation vs. Cincinnati, 97-1795).

In a short statement, Justice John Paul Stevens, joined by Justices David H. Souter and Ruth Bader Ginsburg, cautioned that the court’s action “is not a ruling on the merits” upholding the city ordinance.

“A particular case may not constitute an appropriate forum in which to decide a significant issue,” Stevens wrote, speaking generally.

In this case, he added, the lawyers and the lower court judges differed sharply as to what the Cincinnati measure meant.

Appeals Court, Others Disagree

The appeals court said that it merely took away “special protections” for gays. Others, including defenders of the voter initiative, said that it went further and invalidated all antidiscrimination measures for gays.

This “confusion over the proper construction of the city charter” was one reason for not reviewing the case, Stevens said. It is probably not the only reason, however. It takes the votes of four justices to take up a case and a majority of five to reverse it.

Justices Anthony M. Kennedy and Sandra Day O’Connor, two Reagan administration appointees who cast key votes in the majority in the Colorado case, may have been reluctant to go further and rule by implication that cities must enact basic antidiscrimination laws for gays and lesbians.

Gay rights advocates downplayed the court’s action and said it did not change the law. But the timing of its refusal to consider the appeal, coming the day after the beating death of a gay student at the University of Wyoming, shows again the need for such laws, they said.

“For those who ask what the problem is, the horrible killing in Wyoming is a hideous reminder of it,” said Matt Coles, director of the ACLU’s lesbian and gay rights project. “Hate crimes law and anti-discrimination laws will not end the social disease that brought about that killing. But you make an important start against it by passing these laws.”