Equality Foundation Of Greater Cincinnati, Inc. v. City Of Cincinnati

This court previously disposed of this cause in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati ("Equality Foundation I"), 54 F.3d 261 (6th Cir.1995), vacated, 518 U.S. 1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044 (1996). It has been remanded for reconsideration by the United States Supreme Court consequent to its decision in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).

In case numbers 94-3855/3973, defendant/appellant the City of Cincinnati ("the City"), and intervening defendants/appellants Equal Rights Not Special Rights ("ERNSR"), Mark Miller, Thomas E. Brinkman, Jr., and Albert Moore (collectively denominated "the defendants"), challenged the lower court's invalidation of an amendment to the City Charter of Cincinnati ("the Charter") for purported constitutional infirmities, and its permanent injunction restraining implementation of that measure. As a result of an initiative petition, the subject amendment had appeared on the November 2, 1993 local ballot as "Issue 3" and was enacted by 62% of the ballots cast, thereby becoming Article XII of the Charter (hereinafter "the Cincinnati Charter Amendment" or "Article XII"). Article XII read:

NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS.

The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment. This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect.

Defendant ERNSR had drafted and initiated Issue 3 in response to the prior adoption by the Cincinnati City Council ("Council") of two city ordinances. On March 13, 1991, Council enacted Ordinance No. 79-1991, commonly known as the "Equal Employment Opportunity Ordinance," which mandated that the City could not discriminate in its own hiring practices on the basis of

classification factors such as race, color, sex, handicap, religion, national or ethnic origin, age, sexual orientation, HIV status, Appalachian regional ancestry, and marital status.

(Emphasis added).

Subsequently, Council on November 25, 1992 adopted Ordinance No. 490-1992 (commonly referred to as the "Human Rights Ordinance") which prohibited private discrimination in employment, housing, or public accommodation for reasons of sexual orientation. The opening paragraph of the Human Rights Ordinance expressed the intent of this legislation as:

PROHIBITING unlawful discriminatory practices in the City of Cincinnati based on race, gender, age, color, religion, disability status, sexual orientation, marital status, or ethnic, national or Appalachian regional origin, in employment, housing, and public accommodations by ordaining Chapter 914, Cincinnati Municipal Code.

(Emphases added). The new law created a complaint and hearing procedure for seeking redress from purported sexual orientation discrimination, and exposed offenders to civil and criminal penalties.

In case number 94-4280, the City contested the district court's award of attorneys' fees and costs in favor of the plaintiffs/appellees Equality Foundation of Greater Cincinnati, Inc., Housing Opportunities Made Equal, Inc., Richard Buchanan, Chad Bush, Edwin Greene, Rita Mathis, and Roger Asterino (collectively designated "the plaintiffs") as the prevailing parties.

On May 12, 1995, this reviewing court reversed the lower court's judgment, vacated its injunction, and vacated its award of costs and attorneys' fees to the plaintiffs, concluding that the Cincinnati Charter Amendment offended neither the First nor the Fourteenth Amendments to the United States Constitution and accordingly could stand as enacted by the Cincinnati voters. Equality Foundation I, 54 F.3d 261 (6th Cir.1995). Applying the Supreme Court's longstanding, traditional tripartite equal protection analysis, see, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985),1 this court initially considered if the newly enacted Cincinnati Charter Amendment uniquely disabled any "suspect class" or "quasi-suspect class," or invaded any person's "fundamental right(s)." In so doing, it resolved that, under Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (directing that homosexuals possessed no fundamental substantive due process right to engage in homosexual conduct or constitutional protection against criminalization of that activity) and its progeny,2 homosexuals did not constitute either a "suspect class" or a "quasi-suspect class" because the conduct which defined them as homosexuals was constitutionally proscribable. Equality Foundation I, 54 F.3d at 266-67 & n. 2. This court further observed that any attempted identification of homosexuals by non-behavioral attributes could have no meaning, because the law could not successfully categorize persons "by subjective and unapparent characteristics such as innate desires, drives, and thoughts." Id. at 267. Additionally, this court denied the existence of any all-inclusive fundamental constitutional right to "participate fully in the political process" which could be impaired by the Cincinnati Charter Amendment,3 and rejected the claim that the provision infringed anyone's fundamental First Amendment right to speak or associate freely, or to petition the government for redress of grievances. Id. at 268-70.

Accordingly, because the Cincinnati Charter Amendment targeted no suspect class or quasi-suspect class, and divested no one of any fundamental right, it was not subject to either form of heightened constitutional scrutiny (namely "strict scrutiny" or "intermediate scrutiny"). See Cleburne, 473 U.S. at 439-41, 105 S.Ct. at 3253-55. Rather, it should have been assessed under the most common and least rigorous equal protection norm (the "rational relationship" test), which directed that challenged legislation must stand if it rationally furthers any conceivable legitimate governmental interest.4 Heller v. Doe by Doe, 509 U.S. 312, 319-21, 113 S.Ct. 2637, 2642-43, 125 L.Ed.2d 257 (1993); Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 313-15, 113 S.Ct. 2096, 2100-02, 124 L.Ed.2d 211 (1993); Cleburne, supra; see Equality Foundation I, 54 F.3d at 270. In Equality Foundation I, this court observed that the Cincinnati Charter Amendment advanced a variety of valid community interests, including enhanced associational liberty for its citizenry, conservation of public resources, and augmentation of individual autonomy imbedded in personal conscience and morality. Thus, Article XII satisfied minimal constitutional requirements. Equality Foundation I, 54 F.3d at 270-71. Finally, this court rejected, on standing and mootness rationales, the plaintiffs' contention that the Cincinnati Charter Amendment was void for unconstitutional vagueness. Id. at 271.

On May 20, 1996, the United States Supreme Court decided Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). In that decision, the Court invalidated an amendment to the Colorado constitution ("Colorado Amendment 2") enacted by a statewide plebiscite as an infringement of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Colorado Amendment 2 recited:

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Id. at ----, 116 S.Ct. at 1623.

Although the United States Supreme Court in Romer affirmed the Colorado Supreme Court's decision striking down Colorado Amendment 2, it rejected the reasoning of that court which had posited the existence of a fundamental constitutional right to participate in the political process and then concluded that, under "strict scrutiny" review, Colorado Amendment 2 deprived homosexuals in Colorado of that fundamental right. Romer, at ----, 116 S.Ct. at 1624 (citing Evans v. Romer, 854 P.2d 1270 (Colo.1993) and Evans v. Romer, 882 P.2d 1335 (Colo.1994)). By contrast, the United States Supreme Court did not assess Colorado Amendment 2 under "strict scrutiny" or "intermediate scrutiny" standards, but instead ultimately applied "rational relationship" strictures to that enactment and resolved that the Colorado state constitutional provision did not invade any fundamental right and did not target any suspect class or quasi-suspect class. See Romer, at ----, 116 S.Ct. at 1627. In so ruling, the Court, inter alia, (1) reconfirmed the traditional tripartite equal protection assessment of legislative measures;5 and (2) resolved that the deferential "rational relationship" test, that declared the constitutional validity of a statute or ordinance if it rationally furthered any conceivable valid public interest, was the correct point of departure for the evaluation of laws which uniquely burdened the interests of homosexuals.

Nonetheless, the Romer Court invalidated Colorado Amendment 2 because it was deemed invidiously discriminatory and not rationally connected to the advancement of any legitimate state objective. Romer, at ----, ----, 116 S.Ct. at 1627, 1629. Subsequently, on June 17, 1996, the Supreme Court granted the plaintiffs' petition for a writ of certiorari in the case sub judice, vacated this court's judgment in Equality Foundation I, and remanded the cause to this forum "for further consideration in light of Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)." Equality Foundation of Greater Cincinnati v. City of Cincinnati, 518 U.S. 1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044 (1996). Upon remand, this court ordered rebriefing by the parties and full rehearing (conducted on March 19, 1997).

Although this circuit, in Equality Foundation I, and the Supreme Court, in Romer, each applied "rational relationship" scrutiny to a popularly enacted measure which negatively impacted the interests of homosexuals, this court concluded that the Cincinnati Charter Amendment withstood a constitutional equal protection attack, whereas the Supreme Court resolved that Colorado Amendment 2 did not. An exacting comparative analysis of Romer with the facts and circumstances of this case disclose that these contrary results were reached because the two cases involved substantially different enactments of entirely distinct scope and impact, which conceptually and analytically distinguished the constitutional posture of the two measures. As developed herein, the salient operative factors which motivated the Romer analysis and result were unique to that case and were not implicated in Equality Foundation I.

The Romer Court, prior to undertaking the conventional "rational relationship" equal protection inquiry, initially characterized Colorado Amendment 2 as facially objectionable because it removed municipally legislated special legal protection from gays and precluded the relegislation of special legal rights for them at every level of state government:

Amendment 2, in explicit terms, does more than repeal or rescind these provisions [city ordinances banning gay discrimination in housing, public accommodations, employment, education, and health and welfare services]. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians.

Romer, at ----, 116 S.Ct. at 1623. The Court elaborated:

Sweeping and comprehensive is the change in legal status effected by this law.... Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and the governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

Id. at ----, 116 S.Ct. at 1625.

In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on [sic] the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public or widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

Id. at ----, 116 S.Ct. at 1626-27.

The Court additionally observed that Colorado Amendment 2 could be read to divest homosexuals of all state law government protection available to all other citizens:

Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings.

Romer, at ----, 116 S.Ct. at 1626. However, the Romer Court did not rely upon that potential universally exclusive effect to invalidate the measure, but instead ultimately construed Colorado Amendment 2 only to remove and prohibit special legal rights for homosexuals under state law:

If this consequence [withdrawal of all state law rights from homosexuals] follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment had this effect, however, and neither do we.6

Id.

The more restricted reach of the Cincinnati Charter Amendment, as compared to the actual and potential sweep of Colorado Amendment 2, is noteworthy. Colorado's Amendment 2 provided:

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Romer, at ----, 116 S.Ct. at 1623 (boldface added). By contrast, Cincinnati's Article XII pronounced:

NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS.

The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment. This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect.

Equality Foundation I, 54 F.3d at 264 (boldface added).

Accordingly, the language of the Cincinnati Charter Amendment, read in its full context, merely prevented homosexuals, as homosexuals, from obtaining special privileges and preferences (such as affirmative action preferences or the legally sanctioned power to force employers, landlords, and merchants to transact business with them) from the City. In stark contrast, Colorado Amendment 2's far broader language could be construed to exclude homosexuals from the protection of every Colorado state law, including laws generally applicable to all other Coloradans, thus rendering gay people without recourse to any state authority at any level of government for any type of victimization or abuse which they might suffer by either private or public actors. Romer, at ---- - ----, 116 S.Ct. at 1625-27. Whereas Colorado Amendment 2 ominously threatened to reduce an entire segment of the state's population to the status of virtual non-citizens (or even non-persons) without legal rights under any and every type of state law,7 the Cincinnati Charter Amendment had no such sweeping and conscience-shocking effect, because (1) it applied only at the lowest (municipal) level of government and thus could not dispossess gay Cincinnatians of any rights derived from any higher level of state law and enforced by a superior apparatus of state government, and (2) its narrow, restrictive language could not be construed to deprive homosexuals of all legal protections even under municipal law, but instead eliminated only "special class status" and "preferential treatment" for gays as gays under Cincinnati ordinances and policies, leaving untouched the application, to gay citizens, of any and all legal rights generally accorded by the municipal government to all persons as persons.8

At bottom, the Supreme Court in Romer found that a state constitutional proviso which deprived a politically unpopular minority, but no others, of the political ability to obtain special legislation at every level of state government, including within local jurisdictions having pro-gay rights majorities, with the only possible recourse available through surmounting the formidable political obstacle of securing a rescinding amendment to the state constitution, was simply so obviously and fundamentally inequitable, arbitrary, and oppressive that it literally violated basic equal protection values. Thus, the Supreme Court directed that the ordinary three-part equal protection query was rendered irrelevant. See Romer, at ----, 116 S.Ct. at 1627 (noting that Colorado Amendment 2 "defies" conventional equal protection analysis).

This "extra-conventional" application of equal protection principles can have no pertinence to the case sub judice. The low level of government at which Article XII becomes operative is significant because the opponents of that strictly local enactment need not undertake the monumental political task of procuring an amendment to the Ohio Constitution as a precondition to achievement of a desired change in the local law, but instead may either seek local repeal of the subject amendment through ordinary municipal political processes, or pursue relief from every higher level of Ohio government including but not limited to Hamilton County, state agencies, the Ohio legislature, or the voters themselves via a statewide initiative.

Moreover, unlike Colorado Amendment 2, which interfered with the expression of local community preferences in that state, the Cincinnati Charter Amendment constituted a direct expression of the local community will on a subject of direct consequences to the voters. Patently, a local measure adopted by direct franchise, designed in part to preserve community values and character, which does not impinge upon any fundamental right or the interests of any suspect or quasi-suspect class, carries a formidable presumption of legitimacy and is thus entitled to the highest degree of deference from the courts. Cf. Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) (commanding that a municipal charter amendment adopted by initiative cannot stand if it facially discriminates along suspect lines of race, color, religion, and national origin); James v. Valtierra, 402 U.S. 137, 140-41, 91 S.Ct. 1331, 1333-34, 28 L.Ed.2d 678 (1971).

As the product of direct legislation by the people, a popularly enacted initiative or referendum occupies a special posture in this nation's constitutional tradition and jurisprudence. An expression of the popular will expressed by majority plebiscite, especially at the lowest level of government (which is the level of government closest to the people), must not be cavalierly disregarded. See, e.g., City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 679, 96 S.Ct. 2358, 2364-65, 49 L.Ed.2d 132 (1976) (explaining that the referendum process is "a basic instrument of democratic government"); James, 402 U.S. at 141-43, 91 S.Ct. at 1333-34 (exalting the referendum as manifesting "devotion to democracy, not to bias, discrimination, or prejudice" and as constituting a "procedure [which] ensures that all the people of a community will have a voice in a decision ... that will affect the future development of their own community."); accord Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291, 294 (9th Cir.1970) ("A referendum ... is far more than an expression of ambiguously founded neighborhood preference. It is the city itself legislating through its voters--an exercise by the voters of their traditional right through direct legislation to override the views of their elected representatives as to what serves the public interest.") (citing Spaulding v. Blair, 403 F.2d 862, 863 (4th Cir.1968) ("The referendum procedure ... is a fundamental part of the State's legislative process.")).9

In any event, Romer should not be construed to forbid local electorates the authority, via initiative, to instruct their elected city council representatives, or their elected or appointed municipal officers, to withhold special rights, privileges, and protections from homosexuals, or to prospectively remove the authority of such public representatives and officers to accord special rights, privileges, and protections to any non-suspect and non-quasi-suspect group. Such a reading would disenfranchise the voters of their most fundamental right which is the very foundation of the democratic form of government, even through the lowest (and most populist) organs and avenues of state government, to vote to override or preempt any policy or practice implemented or contemplated by their subordinate civil servants to bestow special rights, protections, and/or privileges upon a group of people who do not comprise a suspect or a quasi-suspect class and hence are not constitutionally entitled to any special favorable legal status. Romer dealt with a statewide constitutional amendment that denied homosexuals access to every level and instrumentality of state government as possible sources of special legal protection. Romer supplied no rationale for subjecting a purely local measure of modest scope, which simply refused special privileges under local law for a non-suspect and non-quasi-suspect group of citizens, to any equal protection assessment other than the traditional "rational relationship" test.

The Romer Court, after concluding that the sweeping effect of Colorado Amendment 2 literally offended basic equal protection standards without the necessity of performing the traditional three-tiered equal protection analysis, then mandated that, even under traditional equal protection strictures, Colorado Amendment 2 could not survive "rational relationship" review:

Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

....

In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.... By requiring that the classifications bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.

Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection for the law is unprecedented in our jurisprudence.

Id. at ---- - ----, 116 S.Ct. at 1627-28 (citations omitted).

Accordingly, the Romer majority's rejection of rational relationship assessment hinged upon the wide breadth of Colorado Amendment 2, which deprived a politically unpopular minority of the opportunity to secure special rights at every level of state law. The uniqueness of Colorado Amendment 2's sweeping scope and effect differentiated it from the "ordinary case" in which a law adversely affects a discernable group in a relatively discrete manner and limited degree. In this context, the Court found that the rationales proffered by the state in support of Colorado Amendment 2 could not be justified, because the scope and effect of Colorado Amendment 2 "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id. at ----, 116 S.Ct. at 1628. Therefore, the Romer Court rejected the state's argument that Colorado Amendment 2, as drafted, rationally advanced its legitimate public interests in furthering "respect for other citizens' freedom of association, and in particular of landlords or employers who have personal or religious objections to homosexuality" and "conserving resources to fight discrimination against other groups." Id. at ----,