Riddick v The School Board of the City of Norfolk Writ of Certiorari

    No. 94-3855

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

EQUALITY FOUNDATION OF GREATER CINCINNATI, INC., et al.,

Plaintiffs-Appellees, 

v.

THE CITY OF CINCINNATI,

Defendant-Appellant.

On Appeal from the 
United States District Court 

for the Southern District of Ohio

BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLEES

Elaine R. Jones 
D irector-Counsel

Theodore M. Shaw 
Alice L. Brown 
Alan Jenkins
NAACP Legal Defense and Educational 

Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Counsel for Amici Curiae



TABLE OF CONTENTS

INTEREST OF A M IC I..........................................................................................................  1

SUMMARY OF A RG U M EN T............................................................................................. 7

ARGUMENT .............................................   7

INTRODUCTION...................................................................................................................  7

I ISSUE 3 INFRINGES THE FUNDAMENTAL RIGHT TO EQUAL
ACCESS TO THE POLITICAL PROCESS ................................................ 8

A. There is a Well-Established, Fundamental Right to Equal
Access to the Political Process Protected by the Constitution.........  10

B. The District Court Properly Held That Issue 3 Would Deny the
Fundamental Right to Equal Political Participation..........................  15

II THE DISTRICT COURT PROPERLY FOUND SEXUAL 
ORIENTATION TO BE A QUASI-SUSPECT CLASSIFICATION 
REQUIRING HEIGHTENED JUDICIAL SCRUTINY UNDER
THE EQUAL PROTECTION CLAUSE ....................................................  18

A. The District Court Correctly Recognized the History of
Intentional Discrimination Against Gay Men, Lesbians and 
Bisexuals...............................................................................................  20

B. Sexual Orientation is a Discrete Trait Unrelated to One’s
Ability to Contribute to Society ......................................................... 23

C. Lesbians, Gay Men and Bisexuals Are Relatively Politically
Powerless In the Sense Contemplated by Equal Protection 
Jurisprudence........................................................................................  25

D. The District Court’s Holding is Fully Consistent With the
Supreme Court’s Decision in Bowers v. Hardwick ...........................  27

III ISSUE 3 IS NOT RATIONALLY RELATED TO ANY
LEGITIMATE GOVERNMENTAL OBJECTIVE....................................  33

A. Issue 3’s Actual Objective is a Constitutionally Impermissible
O n e ........................................................................................................  33

B. Plaintiffs Demonstrated the Irrationality of Issue 3 at T r ia l ...........  40

CONCLUSION................................................................. - ...................................................  43

l



TABLE OF AUTHORITIES 

CASES

Able v. United States,
847 F. Supp. 1038 (E.D.N.Y. 1994) ........................................................................... 23

Arthur v. City of Toledo, Ohio,
782 F.2d 565 (6th Cir. 1986) ...............................................................................  17, 39

Bannum, Inc. v. City of Louisville, Kentucky,
958 F.2d 1354 (6th Cir. 1992) .................................................................................... 37

Batson v. Kentucky,
476 U.S. 79 (1986)........................................................................................................  39

Ben-Shalom v. Marsh,
881 F.2d 454 (7th Cir. 1989), cert, denied
494 U.S. 1004 (1990).................................................................................  20, 21, 29, 30

Bose Corp. v. Consumers Union of United States,
466 U.S. 485 (1984) ...................................................................................................... 9

Bowen v. Gilliard,
483 U.S. 587 (1987) ...................................................................................................  25

Bowers v. Hardwick,
478 U.S. 186 (1986) .................................................................................  27, 28, 29, 30

Brown v. Board of Education,
347 U.S. 483 (1954) ...................................................................................................... 2

Cammermeyer v. Aspin,
850 F. Supp. 910 (W.D. Wash. 1994) ........................................................................  23

Campbell v. United States,
373 U.S. 487 (1963)........................................................................................................  9

Carrington v. Rash,
380 U.S. 89 (1965)................................................................................. .. . . . 12, 13, 14

Cipriano v. City of Houma,
395 U.S. 701 (1969) ............................................................................................. n ,  14

Clarke v. City of Cincinnati,
No. 93-3864 (6th Cir. Nov. 3, 1994) .............................................................  17, 39, 40

u



Pages:

Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985) .............................................................................................passim

Dahl v. Secretary of the United States Navy,
830 F. Supp. 1319 (E.D. Cal. 1993) ........................................................................... 21

Doe v. Casey,
796 F.2d 1508 (D.C.Cir. 1986), affd in part, 
rev’d in part sub. nom, Webster v. Doe, _
U.S._, 108 S. Ct. 2047 (1988) .................................................................................  28

Equality Foundation of Greater Cincinnati v. City of 
Cincinnati,
838 F. Supp. 1235 (S.D.Ohio 1993) .............................................................................  8

Equality Foundation of Greater Cincinnati v. City of 
Cincinnati,
No. C-1-93-773 (S.D.Ohio Aug. 9, 1994)......................................................................  9

Evans v. Romer,
854 P.2d 1270 (Colo. 1993) .................................................................................... 9, 11

Evans v. Romer,
Nos. 94 SA 128, 1994 WL 554621 (Colo. Oct 11, 1994)
(Evans I I ) ........................................................................................................................ 9

Examining Board v. Flores de Otero,
426 U.S. 572 (1976)   40

FCC v. Beach Communications,
508 U .S.__ , 113 S. Ct. 2096 (1993)........................................................................... 34

Frontiero v. Richardson,
411 U.S. 467 (1973)   25,26

Frontiero v. Richardson,
411 U.S. 677 (1973) ............................................................................................. 24, 25

Gamer v. Louisiana,
368 U.S. 157 (1961)   2

Garza v. County of Los Angeles,
756 F. Supp. 1298 (C.D.Cal.), affd, 918 F.2d
763 (9th Cir. 1990), cert, denied, 498 U.S. 1028 (1991) .............................................  3

iii



Pages:

Gomillion v. Lightfoot,
364 U.S. 339 (1960) ............................................................................................. 13, 14

Gordon v. Lance,
403 U.S. 1 (1971) ................................................................................................. passim

Graham v. Richardson,
403 U.S. 365 (1971) ............................................................................................  24, 40

Graves v. Barnes,
343 F. Supp. 704 (W.D.Tex. 1972) ............................................................................. 20

Gray v. Sanders,
372 U.S. 368 (1963) ............................................................................................. 11, 14

Griswold v. Connecticut,
381 U.S. 479 (1965) .................................................................................................... 28

Harper v. Virginia Board of Elections,
383 U.S. 663 (1966) .................................................................................  13, 14, 15, 16

Heller v. Doe,
508 U.S.__ , 113 S. Ct. 2637 (1993)........................................................................... 38

Hernandez v. New York,
500 U.S. 352 (1991) ...............................................................................................  9, 39

High Tech Gays v. Defense Indus. Sec. Clearance 
Office,
895 F.2d 563 (9th Cir. 1990) ....................................................................  20, 29, 30, 31

Horizon House v. Township of Upper Southhampton,
804 F. Supp. 683 (E.D.Pa. 1992) ...............................................................................  37

Hunter v. Erickson,
393 U.S. 385 (1969) .............................................................................................passim

Hunter v. Underwood,
471 U.S. 222 (1985) ............................................................................................. 39, 40

James v. Valtierra,
402 U.S. 137 (1971) ............................................................................................. 12, 13

IV



Korematsu v. United States,
323 U.S. 214 (1944) ...................................................................................................  24

Kramer v. Union Free School District No. 15,
395 U.S. 621 (1969) ............................................................................................. 10, 14

Loving v. Virginia,
388 U.S. 1 (1967) ........................................................................................................  15

Lyng v. Castillo,
477 U.S. 635 (1986) ...................................................................................................  29

Maine v. Taylor,
477 U.S. 131 (1986) ...................................................................................................... 9

Massachusetts Board of Retirement v. Murgia,
427 U.S. 307 (1976) ......................................................................................  18, 24, 28i

Mathews v. Lucas,
427 U.S. 495 (1976) ............................................................................................. 19, 32

Meyer v. Nebraska,
262 U.S. 390 (1923) ...................................................................................................  15

Miller v. Fenton,
474 U.S. 104 (1985).......................................................................................................... 9

Mississippi University for Women v. Hogan,
458 U.S. 718 (1982) ............................................................................................. 19? 24

Morey v. Dowd,
354 U.S. 457 (1957) ........................................... ; ...................................................... 35

NAACP v. Button,
371 U.S. 415 (1963) ............................................................................................. 16> 17

New Orleans v. Dukes,
427 U.S. 297 (1976) ............................................................................... ; .................  35

New York City Board of Estimate v. Morris,
489 U.S. 688 (1989) ...................................................................................................  10

Padula v. Webster,
822 F.2d 97 (D.C. Cir. 1987) ............................. ..........................................  20, 29, 30

Pages:

v



Pages:

Parham v. Hughes,
441 U.S. 347 (1979) .................................................................................................... 24

Plyler v. Doe,
457 U.S. 202 (1982) .................................................................................  23,24,36,41

Reitman v. Mulkey,
387 U.S. 369 (1967) ........................................................................................  8, 10, 14

Reynolds v. Sims,
377 U.S. 533 (1964) ............................................................................................. 10, 14

Rogers v. Lodge,
458 U.S. 613 (1983) ...................................................................................................  40

Rowland v. Mad River Local School District,
470 U.S. 1009 (1985) .................................................................................................  21

San Antonio Indep. School Dist. v. Rodriguez,
411 U.S. 1 (1973) .................................................................................................  24, 25

Shuttlesworth v. City of Birmingham,
394 U.S. 147 (1969) ...................................................................................................... 2

Skinner v. Oklahoma,
316 U.S. 535 (1942)   15

Steffan v. Cheney,
780 F. Supp. 1 (D.D.C. 1991), affd sub nom 
Steffan v. Perry, 1994 WL 652249 (D.C. Cir
1994) ............................................................................................................................  21

Trimble v. Gordon,
430 U.S. 762 (1977)   36

United States Department of Agriculture v. Moreno,
413 U.S. 528 (1973) ......................................................................................  35,36,41

United States Railroad Retirement Bd. v. Fritz,
449 U.S. 166 (1980)   38

United States v. Carolene Products Co.,
304 U.S. 144 (1938)   18

vi



Pages:

United Steelworkers of America v. Weber,
443 U.S. 193 (1979) ...................................................................................................  20

Vance v. Bradley,
440 U.S. 93 (1979)........................................................................................................ 34

Washington v. Davis,
426 U.S. 229 (1976) ......................................................................................  13,14,39

Washington v. Seattle School Dist. #1,
458 U.S. 457 (1982) ............................................................................................. 10, 39

Watkins v. U.S. Army,
875 F.2d 699 (9th Cir. 1989), cert, denied, 111
S. Ct. 384 (1990) .................................................................................................  28, 32

White v. Regester,
412 U.S. 755 (1975) ...................................................................................................... 3

Wisconsin v. Mitchell,
508 U.S.__ , 124 L. Ed. 2d 436 (1993)......................................................................  41

Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989)............................................................................. 29, 30

STATUTES

Ga. Code Ann. § 16-6-2 (1984)............................................................................................... 29

8 U.S.C. § 1182(a)(4)........................................................ ...................................................... 21

Rule 52, F.R.A.P................................................................. ........................................................  g

MISCELLANEOUS

Barnes, Toward Ghastly Death: The Censorship of AIDS
Education, 89 Colum. L. Rev. 698 .............................................................................  27

Developments in the Law -  Sexual Orientation and
the Law, 102 Harv. L. Rev. 1508, 1556 (1989) ......................................................... 21

vn



Note, An Argument for the Application of Equal 
Protection Heightened Scrutiny to 
Classifications Based on Homosexuality, 57 S
Cal Rev 797 (1984)...................................................................................................... 32

Note, The Constitutional Status of Sexual
Orientation: Homosexuality as a Suspect
Classification, 98 Hard L Rev 1285 (1985) ...............................................................  32

Note, Sexual Orientation Discrimination in the Wake
of Bowers v. Hardwick, 22 Ga. L. Rev. 773 ......................................................  21, 25

M. Strasser, Suspect Classes and Suspect
Classifications: On Discriminating, Unwittingly
or Otherwise, 64 Temple Law Review 937 (1991)....................................................  32

C. Sunstein, Sexual Orientation and the
Constitution: A Note on the Relationship 
Between Due Process and Equal Protection, 55 U.
Chi. L. Rev. 1161, 1163 (1988)...................................................................................  28

L. Tribe, American Constitutional Law 1464 (1988) ..................................................  15

C. Wright, Federal Practice and Procedure § 374 (2d
ed. 1982 and Supp. 1990)............................................................................................... 9

Pages:

viii



No. 94-3855

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

EQUALITY FOUNDATION OF GREATER CINCINNATI, INC., et al,

Plaintiffs-Appellees,

v.

THE CITY OF CINCINNATI,

Defendant-Appellant.

On Appeal from the 
United States District Court 

for the Southern District of Ohio

BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLEES

INTEREST OF AMICI

The undersigned amici curiae are national and Ohio-based organizations that seek to 

protect individuals from invidious discrimination and mistreatment, and to promote respect and 

equal rights for all members of society. Amici believe that it is critical both to the principle of 

equal protection of the laws, and to the legitimacy of our system of representative democracy, 

that the fundamental right to participate equally in the political process be vindicated as to all 

arbitrary, status-based exclusions, not only as to race. Each of the undersigned amici 

organizations has a direct interest in the affirmance of the District Court’s ruling below.



The NAACP Legal Defense and Educational Fund. Inc.

The NAACP Legal Defense and Educational Fund, Inc. is a national civil rights legal 

organization that has for more than forty years litigated on behalf of African Americans and 

others seeking protection from status-based discrimination and harassment based on the 

exercise of constitutional rights. Important LDF cases in this arena include Shuttlesworth 

v. City o f Birmingham, 394 U.S. 147 (1969) (invalidating ordinance authorizing arbitrary 

prior restraints on political protest); Gamer v. Louisiana, 368 U.S. 157 (1961) (invalidating 

convictions of sit-in protesters for “disturbing the peace” where only conduct was courteous 

refusal to give up seats in “white” section of lunch counter); Brown v. Board o f Education, 

347 U.S. 483 (1954) (overturning principle that “separate but equal” treatment of different 

races does not violate the Equal Protection Clause).

Anti-Defamation League

The Anti-Defamation League (ADL) is one of the oldest civil rights organizations 

in the United States. It was founded in 1913 to combat anti-Semitism and to promote good 

will among all races, ethnic groups, and religions. As set forth in its charter, ADL’s 

"ultimate purpose is to secure justice and fair treatment to all citizens alike and to put an 

end forever to unjust and unfair discrimination against and ridicule of any sect or body of 

citizens." For more than eighty years, ADL has been active in the fight against 

discrimination in employment, housing, education and public accommodations.

Asian American Legal Defense and Education Fund

Founded in 1974, the Asian American Legal Defense and Education Fund 

(AALDEF) is a civil rights organization that addresses critical issues facing Asian 

Americans through community education, advocacy, and litigation involving immigrants’

2



rights, voting rights, labor and employment rights, and environmental justice. AALDEF 

also represents victims of anti-Asian violence and Japanese Americans who were 

incarcerated in U.S. camps during World War II. AALDEF supports the fundamental right 

of all persons to equal access and participation in the political process.

Mexican American Legal Defense and Educational Fund 

The Mexican American Legal Defense and Educational Fund (MALDEF) is a 

national nonprofit organization whose principal objective is to protect and promote the civil 

rights of Latinos in the United States. It is particularly dedicated to securing such rights 

in the areas of political access, immigration, education, employment and language rights. 

MALDEF has litigated many cases in order to ensure equal access to the political process. 

Among those it has brought are White v. Regester, 412 U.S. 755 (1975) (invalidating the 

at-large election scheme for excluding Mexican Americans and African Americans from 

effective participation in the political process), Garza v. County o f Los Angeles, 756 F. Supp. 

1298 (C.D.Cal.), affd, 918 F.2d 763 (9th Cir. 1990), cert, denied, 498 U.S. 1028 (1991) 

(invalidating district boundaries as intentionally discriminatory against Latino voters and 

diluting Latino voting strength). As a civil rights organization, MALDEF has an interest 

in ensuring the protection of the most fundamental right to participate in the political 

process.

Mount Auburn Presbyterian Church

Mount Auburn Presbyterian Church is a church committed to serving all of the 

Cincinnati community. The congregation is concerned ?bout and dedicated to eradicating 

discrimination in all of its forms. Their faith compels them to hold the belief that gay and 

lesbian persons are an equal part of God’s good creation and are entitled to the same civil

3



rights enjoyed by all human beings.

NOW Legal Defense and Education Fund 

The NOW Legal Defense and Education Fund (NOW LDEF) is a leading national 

non-profit civil rights organization that provides a broad range of legal and educational 

services in support of women’s efforts to eliminate gender-based discrimination. NOW 

LDEF was founded as an independent organization in 1970 by leaders of the National 

Organization for Women. NOW LDEF opposes Issue 3 because it jeopardizes the ability 

of any group that suffers discrimination to obtain civil rights protection.

National Lesbian and Gay Law Association 

The National Lesbian and Gay Law Association (NLGLA) was founded in 1988 as 

a national association of lawyers, judges, and other legal professionals, law students and 

affiliated lesbian and gay legal organizations. Its mission is to promote justice in and 

through the legal profession for lesbians and gay men in all their diversity. NLGLA has 

been an affiliate of the American Bar Association since August 1992. It has participated 

as amicus curiae in numerous state and federal court actions involving or implicating the 

rights of lesbians and gay men.

Ohio Civil Rights Coalition

The Ohio Civil Rights Coalition is an unincorporated state-wide association of over 

forty community, civic, professional, religious and civil rights organizations.1 The purpose

1 The Coalition’s members include, but are not limited to, the American Civil Liberties 
Union, Anti-Defamation League, Coalition of Concerned Black Citizens, Columbus NAACP, 
Columbus Urban League, Inc., Committee Against Sexual Harassment, Governor’s Council for 
People with Disabilities, Metropolitan Strategy Group, Mid-Ohio Board for Independent Living 
Environment, National Association of Social Workers Ohio Chapter, National Conference of 
Black Lawyers, National Council of Jewish Women, National Lawyers Guild, Nine to 
Five/National Association of Working Women, NOW/OPA/Women’s Connection, Ohio Fair

4



of the Coalition is to improve equal opportunity in housing, employment and the political 

and social institutions of this Nation. The Coalition achieves its goals through a variety of 

activities, including educational programs, legal advocacy and inter-organizational 

communications. The Coalition believes that the outcome of this case will have a 

significant impact on the ability of all socially and disadvantaged groups to seek legal 

protection from discrimination. The Coalition also believes that the initiative at issue in 

this case arbitrarily and discriminatorily permits an electoral majority to deny the socially 

and racially disadvantaged an equal right to petition the government for redress and 

protection from individual and institutional discrimination. Such discrimination injures the 

public interest by excluding productive individuals from participating in our economic, 

social and political institutions.

Ohio Human Rights Bar Association

The Ohio Human Rights Bar Association (OHRBA) is a state-wide bar association 

dedicated to addressing gay, lesbian, and bisexual issues in the Ohio legal community.

People For The American Wav

People for the American Way (People For) is a nonpartisan, education-oriented 

citizens’ organization established to promote and protect civil and constitutional rights. 

Founded in 1980 by a group of religious, civic and educational leaders devoted to our 

Nation’s heritage of tolerance, pluralism and liberty, People For now has over 300,000 

members across the country, including Ohio. People For has been actively involved in 

efforts nationwide to combat discrimination and promote equal rights, including efforts to

Housing Congress, Ohio Housing Coalition, Ohio NOW, Inc., OUTVOICE, Police Officers for 
Equal Rights, and Stonewall Union.

5



protect the civil rights of gay men and lesbians. People For regularly supports the 

enactment of civil rights legislation, participates in civil rights litigation, and conducts 

programs and studies directed at reducing problems of bias, injustice and discrimination. 

The instant appeal is of particular importance to People For because the District Court’s 

decision properly rejected the unacceptable concept that gay men and lesbians are second 

class citizens who may be excluded from this country’s political processes and denied its 

legal protections. It is vitally important to People For that this Court affirm that decision 

and the fundamental principle that all persons, including gay men and lesbians, are entitled 

to the equal protection of the law.

Puerto Rican Legal Defense and Education Fund. Inc.

The Puerto Rican Legal Defense and Education Fund (PRLDEF) was founded in 

1972 to protect and ensure the civil rights of Puerto Ricans and other Latinos. PRLDEF 

is committed to the equal protection of the laws for all persons and strongly opposes 

discrimination against lesbian, gay and bisexual people, including any attempt to restrict 

political participation on the basis of sexual orientation.

Stonewall Cincinnati Human Rights Organization 

Stonewall Cincinnati Human Rights Organization is a nonprofit organization 

specializing in education and advocacy on behalf of lesbians, gay men and bisexuals. These 

services are provided through a variety of projects, which include: voter education and 

registration; a speakers’ bureau; regular interaction with public officials and business 

leaders; educational programs; and an anti-violence project.

6



SUMMARY OF ARGUMENT2

Amici, supporting plaintiffs-appellees, here address the District Court’s correct 

conclusion that Issue 3 violates the Equal Protection Clause of the Fourteenth Amendment 

to the United States Constitution. Issue 3 denies plaintiffs equal protection of the laws 

because it requires Cincinnati’s gay, lesbian, and bisexual citizens to use an egregiously 

more onerous procedural mechanism than is available to others to seek governmental 

attention to their needs — and, particularly, to seek relief from invidious discrimination. 

This violates plaintiffs’ fundamental right to equal political participation. Issue 3 is also 

subject to heightened judicial scrutiny because it discriminates on the basis of sexual 

orientation, which the District Court properly found to be a quasi-suspect classification.i
It is clear from the record in this case that the measure is not substantially related to a 

sufficiently important governmental interest. Finally, even under "rational basis" scrutiny, 

Issue 3 does not pass constitutional muster because it furthers an impermissible goal and 

because it is not rationally related to any legitimate governmental objective.

ARGUMENT

INTRODUCTION

In order to gauge the constitutionality of Issue 3, it is necessary to analyze its

language and, therefrom, its inevitable effects. The text of Issue 3 provides:

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

2 For the sake of brevity, amid address the relevant facts of this case in the body of their 
argument and do not include a formal statement of the facts.

7



with the basis to have any claim of minority or protected status, quota 
preference or other preferential treatm ent 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.

Thus, the measure does not merely create a private "right to discriminate," as did the state 

constitutional provision struck down by the Supreme Court in Reitman v. Mulkey, 387 U.S. 369 

(1967), nor does it only create an unequal and more onerous procedural scheme for members 

of a particular group to seek protective legislation from the municipal government, as did the 

provision invalidated by the Court in Hunter v. Erickson, 393 U.S. 385 (1969). Rather, Issue 3 

expressly removes from local government all authority to act on behalf of one group of its 

citizens.

After a full trial on the merits, the District Court in this case came to the unremarkable 

conclusion that by stripping the Cincinnati government of the power to protect a certain class of 

its citizens from discrimination solely because they are lesbian, gay or bisexual, Issue 3 denies 

those citizens equal protection of the laws. For the reasons that follow, amici urge this Court to 

affirm the invalidation of Issue 3 on each of the grounds identified by the court below.

I
ISSUE 3 INFRINGES THE FUNDAMENTAL RIGHT TO EQUAL ACCESS

TO THE POLITICAL PROCESS

The District Court correctly held that Issue 3 violates plaintiffs’ fundamental right to equal 

participation in the political process.3 Equality Foundation o f Greater Cincinnati v. City o f

3 As a preliminary matter, the District Court’s extensive factual findings in this case may 
be rejected on appeal only if this Court finds them to be clearly erroneous. Rule 52, 
Fed. R. Civ. P. Intervenors make the remarkable assertion that "[i]n constitutional 
cases . . . federal appellate courts are not bound by the clear error standard for factual

8



Cincinnati, 838 F. Supp. 1235, 1238-1240 (S.D.Ohio 1993) (Equality I); Equality Foundation of 

Greater Cincinnati v. City o f Cincinnati, No. C-l-93-773, slip op. at 25-35 (S.D.Ohio Aug. 9, 1994) 

{Equality II). As the Supreme Court of Colorado recently concluded in Evans v. Romer, Nos. 94 

SA 48 & 94 SA 128, 1994 WL 554621 (Colo. Oct 11, 1994) {Evans II) (permanently enjoining 

state constitutional amendment excluding gays, lesbians and bisexuals from the political process); 

Evans v. Romer, 854 P.2d 1270 (Colo. 1993) {Evans I) (preliminarily enjoining amendment), the 

United States Supreme Court’s apportionment and electoral process cases, and its cases 

invalidating referenda and charter amendments almost identical to Issue 3, recognize a 

fundamental right to equal participation in the political process that Issue 3 plainly denies. This 

fundamental right prohibits enactments — however adopted -- that impair the opportunity of 

independently identifiable groups to seek the protection of the laws. Moreover, the right is at 

its apex where, as here, an identifiable group establishes a need for protection from invidious 

discrimination.

determinations, and must instead engage in a more searching inquiry. See Maine v. Taylor, A ll 
U.S. 131, 145 (1986); Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 510-511 
(1984)." Brief of Intervenors-Appellants at 8. Yet the Supreme Court has stated in no 
uncertain terms that "an issue does not lose its factual character merely because its resolution 
is dispositive of the ultimate constitutional question." Miller v. Fenton, 474 U.S. 104,113 (1985), 
citing Dayton Board of Education v. Brinkman, 443 U.S. 526, 534 (1979) (finding of intent to 
discriminate subject to "clearly erroneous" standard of review). More recently, in Hernandez 
v. New York, 500 U.S. 352 (1991) (plurality opinion), the Court expressly distinguished the Bose 
and Taylor cases, on which intervenors rely. The Hernandez Court explained that Bose has "no 
relevance" to the review of factual findings in Equal Protection Clause cases: Bose, the Court 
explained, turned on the "determination that findings o f . . . actual malice involve legal, as well 
as factual elements." Id. at 411 (citations omitted). The Court further explained that Taylor 
represents a narrow exception to the ordinary review of factual findings. Id. at 409-410 ("we 
have held that the [clearly erroneous] standard should aoply to review of findings in criminal 
cases on issues other than guilt"), citing Taylor, at 145, Campbell v. United States, 373 U.S. 487, 
493 (1963), and 2 C. Wright, Federal Practice and Procedure § 374 (2d ed. 1982 and Supp. 
1990).

9



A. There is a Well-Established. Fundamental Right to Equal Access to the Political Process
Protected bv the Constitution

"‘[E]ach and every citizen has an inalienable right to full and effective participation in the 

political processes’ of the legislative bodies of the Nation, State or locality as the case may be." 

New York City Board o f Estimate v. Morris, 489 U.S. 688, 693 (1989), quoting Reynolds v. Sims, 

377 U.S. 533, 565 (1964). This case involves a sustained effort by the appellants to deny that 

right to Cincinnati’s gay, lesbian, and bisexual citizens.

The District Court correctly held that the Supreme Court’s apportionment and electoral 

process and referendum cases, Reynolds-, Kramer v. Union Free School District No. 15, 395 U.S. 

621, 626 (1969); Reitman\ Hunter, Gordon v. Lance, 403 U.S. 1 (1971); and Washington v. Seattle 

School Dist. #7, 458 U.S. 457 (1982), collectively embody both an anti-discrimination principle 

and a political participation principle. Although the right to equal political participation is not 

expressly enumerated in the Constitution, the Supreme Court has found the right to be 

fundamental because it is "preservative of other basic civil and political rights," Reynolds v. Sims, 

317 U.S. at 562, and "is of the essence of a democratic society." Id. at 555. "Any unjustified 

discrimination in determining who may participate in political affairs or in the selection of public 

officials undermines the legitimacy of representative government." Kramer, 395 U.S. at 626.

In Reynolds, the Supreme Court explained that the Equal Protection Clause protects the 

fundamental fairness of, and equality of access to, our system of representative government. E.g., 

id. at 555, 560, 565. If that principle is to have any meaning, it cannot be limited to the formal 

right to cast a vote; rather, once a public body creates a mechanism for governmental access, the 

Equal Protection Clause protects every individual’s opportunity to utilize that mechanism to seek 

favorable action from his or her representatives. "Thus, to the extent that legislation impairs a 

group’s ability to effectively participate (which is not to be confused with successful participation)

10



in the process by which government operates, close judicial scrutiny is necessitated." Evans I, 854 

P.2d at 1277.

Appellants argue that the District Court’s application of the fundamental right to equal

political participation would invalidate virtually every attempt to limit governmental legislative

authority over specific subject matter through charter amendments and referenda. According to

defendants, such measures inevitably affect "identifiable groups," and, hence, would be viewed as

denying to these groups equal access to the political process. This argument is flawed. The

Supreme Court, and the court below, have clearly identified the limits of this fundamental right.

In Gordon v. Lance, 403 U.S. 1 (1971), the Supreme Court refused to invalidate a state provision

requiring supermajority electorate approval for a political subdivision to incur bonded

indebtedness because the Court could "discern no independently identifiable group or category that

favors bonded indebtedness over other forms of financing. Consequently, no sector o f the

population may be said to be ‘fenced out’ from the franchise because of the way they will vote."

Id. at 5 (emphasis added) (citation omitted). The Gordon Court elaborated on the notion of an

"independently identifiable group" by reference to the nature of the constitutional violations in

Gray v. Sanders, 372 U.S. 368 (1963) (invalidating formula that gave unequal weight to primary

votes cast in different counties), and Cipriano v. City o f Houma, 395 U.S. 701 (1969) (striking

down provision limiting eligibility to vote in certain elections to "property taxpayers"):

The defect this Court found in those cases lay in the denial or dilution of 
voting power because of group characteristics — geographic location and 
property ownership — that bore no valid relation to the interest of those 
groups in the subject matter of the election . . . .

Gordon, 403 U.S. at 4.

The Gordon Court then went on to distinguish Hunter on the ground that Hunter involved 

an independently identifiable group — "those who would benefit from laws barring racial,

11



religious, or ancestral discriminations" -- while the Court "[could] discern no independently 

identifiable group or category that favors bonded indebtedness over other forms of financing. 

Consequently no sector of the population may be said to be ‘fenced out’ from the franchise 

because of the way they will vote. Cf. Carrington v. Rash, supra, at 94." Id. at 5. The discussion 

in Gordon integrating the Court’s apportionment, voter eligibility, and referendum decisions 

makes clear that these cases define a unified right to equal political participation and refutes 

intervenors’ suggestion that the independently identifiable group formulation is unworkable.

The Supreme Court has also made clear that government remains free to alter the 

allocation of decision-making authority based on "neutral principles" — that is, principles that do 

not target an independently identifiable group for political disadvantage — even if such a change 

has the effect of disproportionately burdening a particular group. So, for example, Cincinnati 

"might have proceeded by majority vote . . .  on all its municipal legislation," Hunter, 393 U.S. at 

392, quoted in Washington, 458 U.S. at 477 n.19, or it might have reserved to the people all 

housing, employment and public accommodations decisions. See generally James v. Valtierra, 402 

U.S. 137 (1971). What it cannot do, consistent with equal protection, is to allocate decision­

making authority in a non-neutral, group-based fashion.4

Defendants and intervenors also seem to argue that the District Court’s definition of an 

"independently identifiable group" in this case is too indeterminate to be applied practically. 

Clearly, though, Judge Spiegel followed Supreme Court precedent in concluding that an

4 Issue 3 appears to eliminate the municipal government’s power to protect gay men, 
lesbians and bisexuals only -  leaving heterosexuals protected from invidious discrimination 
based on sexual orientation. Thus, Issue 3 cannot be said to rest upon a policy of neutrality 
about discrimination on the basis of sexual orientation. It leaves untouched current (and 
future) protection of one independently identifiable group -- heterosexuals -- while immediately 
repealing such protection for gay men, lesbians and bisexuals, and foreclosing their future 
access to the political process.

12



independently identifiable group for political participation purposes is one that is identifiable 

apart from the subject matter of the electoral contest or political question at issue. Thus, while 

the racial minorities disadvantaged by gerrymandering in Gomillion v. Lightfoot, 364 U.S. 339 

(1960), the indigent voters disenfranchised in Harper v. Virginia Board o f Elections, 383 U.S. 663 

(1966), and the military personnel shut out of the political process in Carrington v. Rash, 380 U.S. 

89 (1965), were all identifiable apart from the issue or candidate they supported, the same could 

not be said of the “supporters of bonded indebtedness” who were plaintiffs in Gordon, or the 

“supporters of public housing” denied relief in James v. Valtierra, 402 U.S. 137 (1971). The 

former groups’ members share a commonality of identity and interests that transcends individual 

political issues or controversies.5

At bottom, intervenors’ criticism of the "independently identifiable group" formulation is 

simply an argument that Gordon and the other referendum cases were wrongly decided, or that 

the Supreme Court did not mean what it plainly said in those decisions. This is not the forum 

for a broadside attack on the providence of Supreme Court precedent and such an attack should 

be squarely rejected by this Court.

5 It is true that not all supporters of the Human Rights Ordinance are gay, lesbian, or 
bisexual, and that not all members of those groups necessarily support the ordinance. The 
Supreme Court has made clear, however, that it is those whose needs government is barred 
from addressing, not "supporters" of anti-discrimination legislation, who represent the injured 
parties for Equal Protection purposes. So, in Hunter, although "supporters of housing 
discrimination laws" did not represent an independently identifiable group, the racial and 
religious minorities who were effectively barred from seeking government’s protection through 
such laws did. The same was true in Washington, where the Court recognized that while not 
every African-American favo-s school desegregation, a rule that singles out and removes from 
local government the power to desegregate their schools punishes African Americans who are 
the victims of segregation and who seek its elimination. Id. at 468 ("In ‘reality,’ the burden 
imposed by such an arrangement necessarily ‘falls on the minority. The majority needs no 
protection against discrimination and if it did, a referendum might be bothersome but no more 
than that’"). This is true even where, as in Hunter and Washington, the challenged provision 
draws no explicit group-based distinctions.

13



Intervenors also expend much energy arguing that the Supreme Court’s political 

participation cases are "race cases," and no more. E.g., Brief of Intervenors-Appellants at 18. 

But where government infringes the fundamental right to political participation, it is of no 

constitutional significance whether the excluded group is a racial one, or a group identified by 

some other criterion not relevant to an individual’s political standing. Thus, in Gordon v. Lance, 

the Court explained that

Cipriano [v. City o f Houma, 395 U.S. 701 (1969) (invalidating the limitation 
to "property taxpayers" of the right to vote in a revenue bond referendum)] 
was no more than a reassertion of the principle, consistently recognized, that 
an individual may not be denied access to the ballot because of some 
extraneous condition, such as race, e.g., Gomillion v. Lightfoot, 364 U.S. 339 
(1960); wealth, e.g., Harper v. Virginia Board o f Elections, 383 U.S. 663 (1966); 
tax status, e.g., Kramer v. Union Free School Dist., 395 U.S. 621 (1969); or 
military status, e.g., Carrington v. Rash, 380 U.S. 89 (1965).

Id. at 5. See also Gray v. Sanders, 372 U.S. 368, 379 (1963) ("all who participate in [an]

election are to have an equal vote -- whatever their race, whatever their sex, whatever their

occupation, whatever their income, and wherever their home may be in that geographical

unit").

Moreover, as the District Court correctly recognized, the Hunter Court expressly 

relied on numerous prior decisions, including Reynolds, in which race was clearly not a 

factor. See, e.g., Equality II, slip op. at 28 ("It is also significant that in analyzing the 

political participation aspect of the case, the Hunter Court relied exclusively on voting cases 

which had nothing to do with any racial classification") (citing Hunter, 393 U.S. at 393 

(citing Reynolds, supra, and Avery v. Midland County, 390 U.S. 474 (1968)). Appellants’ 

assumption that because Reitman, Hunter and Washington involved suspect classifications, 

they did not also vindicate a fundamental right, is simply incorrect.

Historically, the infringement of fundamental rights has been visited

14



disproportionately upon society’s most vilified and unpopular groups, most frequently, 

racial and ethnic minorities. See, e.g., Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (laws 

prohibiting interracial marriage violate both fundamental right to marital decision-making 

and anti-discrimination principle); Harper v. Virginia State Bd. o f Elections, 383 U.S. 663, 

666 n.3 (1966) (noting that Virginia poll tax was "born of a desire to disenfranchise the 

Negro," but invalidating the tax on fundamental right grounds); cf., Meyer v. Nebraska, 262 

U.S. 390 (1923) (invalidating under substantive due process analysis conviction of German 

residents for educating their children in German language). Clearly, however, these rights 

are no less fundamental, and their denial no more constitutional, when the targeted group 

is gay, lesbian, and bisexual people.6
i

B. The District Court Properly Held That Issue 3 Would Deny the Fundamental Right
to Equal Political Participation

On the record below, there is no doubt that the groups fenced out of the political 

process by Issue 3 — gay men, lesbians and bisexuals — fall within the established 

parameters identified by the Supreme Court. Nor is there any compelling justification for 

their exclusion. Most notably, sexual orientation is a human characteristic wholly irrelevant

6 It is in circumstances such as these, where the majority singles out members of a small and 
politically vulnerable group, that the courts have been most willing to intercede in order to 
vindicate the infringement of fundamental rights. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 
541 (1942) (invalidating under fundamental rights analysis forced sterilization for certain crimes, 
in part because "[t]he power to sterilize, if exercised . . . [i]n evil or reckless hands . . . can 
cause races or types which are inimical to the dominan; group to wither and disappear"); 
L. Tribe, American Constitutional Law 1464 (1988) (Skinner opinion “makes evident an 
even greater preoccupation with the notion that the state’s classifications had been promulgated 
with their harshest effect against a relatively powerless minority, that of lower-class, as opposed 
to white-collar, criminals”); W. Lockhart, Y. Kamisar, J. Choper, S. Shiffrin, CONSTITUTIONAL 
Law: Cases, Comments, Questions (1991) (quoting Tribe, supra).

15



to an individual’s ability to participate in the political process. Like personal wealth and 

taxpayer status, but unlike literacy, sexual orientation is an unacceptable characteristic upon 

which to condition the exercise of a fundamental right, because it is wholly unrelated to 

an individual’s ability to participate in the political process. See, e.g., Harper, supra (holding 

that the poor cannot be denied the right to participate in state elections through imposition 

of a poll tax, although the states may impose reasonably crafted literacy and residency 

requirements).

In amici's view, the right to equal political participation is strongest where, as here, 

an identifiable group seeks government’s protection from discrimination or persecution. 

In NAACP v. Button, 371 U.S. 415 (1963), the Supreme Court recognized civil rights 

litigation activity by the National Association for the Advancement of Colored People and 

the NAACP Legal Defense and Educational Fund, Inc. {amicus curiae in the present case) 

as "a means for achieving the lawful objectives of equality of treatment by all government, 

federal, state and local, for the members of the Negro Community in this country." Id. at 

429. Finding these activities to be constitutionally protected, the Court held that efforts 

by the State of Virginia to impair them through race-neutral "anti-solicitation" laws violated 

the First and Fourteenth Amendment rights of both groups and their members. 

Significantly, the Button Court did not base its decision on the fact that the organizations 

sought racial, rather than some other type of equality through litigation. Nor did the Court 

find that Virginia had no legitimate governmental interest in regulating-the legal 

profession, or in proscribing solicitation in the commercial context. Rather, the Court 

recognized that, for unpopular groups seeking protection from public or private 

discrimination, resort to the electorate for protection is by definition untenable. See, e.g.,

16



id. at 431 ("For such a group, association for litigation may be the most effective form of 

political association"). For these groups -- as distinguished from commercial litigants 

seeking to resolve only private disputes -- the right to uninhibited access to all levels of 

government is essential to the democratic process.

Intervenors are also incorrect when they suggest the District Court’s decision 

somehow pits the power and authority of the electorate against that of the City Council. 

See, e.g., Brief of Intervenors-Appellants at 11-12 ("The district court’s conclusion that so 

establishing the people as paramount somehow conflicts with constitutionally guaranteed 

political rights grossly misconceives the respective roles of people and their representative 

government"). Plaintiffs do not challenge the process by which the Issue 3 Amendment was 

adopted, but rather the substance and effect of that Amendment. The constitutional 

violations identified by the District Court in this case would be no more or less valid if the 

substance of Issue 3 had been effectuated through elected or appointed officials instead 

of by referendum.7 Intervenors’ attempts to frame this dispute as one between the "will 

of the electorate" and the City Council — the members of which were installed by that same 

electorate — is spurious.

7 Hunter and its progeny make clear that laws and governmental policies adopted through 
referenda -- like legislative enactments and executive policies -- constitute state action subject 
to the strictures of the Equal Protection Clause. See, e.g, Clarke v. City o f  Cincinnati, No. 
93-3864, slip op. at 15 (6th Or. Nov. 3, 1994) ("‘[t]he sovereignty of the people is itself subject 
to those constitutional limitations which have been duly idopted and remain unrepealed.’") 
(quoting Hunter at 392); Arthur, 782 F.2d at 573 ("[T]h:s Court recognizes that the city’s 
‘electorate as a whole, whether by referendum or otherwise, could not order city action violative 
of the Equal Protection Clause . .  . and the City may not avoid the strictures of that Clause by 
deferring to the wishes or objections of some fraction of the body politic’ . . . .") (quoting City 
of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 448 (1985)).

17



THE DISTRICT COURT PROPERLY FOUND SEXUAL ORIENTATION 
TO BE A QUASI-SUSPECT CLASSIFICATION REQUIRING HEIGHTENED 

JUDICIAL SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE

This appeal presents an issue of first impression in this Circuit. Neither the U.S.

Supreme Court nor this Court has previously decided the question of whether

classifications based upon sexual orientation are suspect or quasi-suspect under equal

protection doctrine. Amici believe that the District Court in the case at bar correctly held

that such classifications meet the requisite criteria for quasi-suspect status and properly

applied heightened scrutiny to invalidate Issue 3.

The principle that certain types of governmental classifications should be viewed by

courts as inherently suspect, and thus subjected to particularly attentive judicial review, was

first articulated in dictum in United States v. Carolene Products Co., 304 U.S. 144 (1938),

but is today firmly embedded in American constitutional jurisprudence. In footnote four

of its opinion in Carolene Products, the Court stated that

prejudice against discrete and insular minorities may be a special condition, 
which tends seriously to curtail the operation of those political processes 
ordinarily to be relied upon to protect minorities, and . . . may call for a 
correspondingly more searching judicial inquiry . . . .

304 U.S. at 152 n.4.

It is now well established that there are two levels of heightened scrutiny: "strict 

scrutiny," applied to suspect classifications or statutes that limit fundamental rights, and 

"intermediate scrutiny." Summarizing the basis upon which a classification will be 

considered "suspect," the Supreme Court stated in Massachusetts Board o f Retirement v. 

Murgia, 427 U.S. 307, 313 (1976):

[A] suspect class is one saddled with such disabilities, or subjected to such

II

18



a history of purposeful unequal treatment, or relegated to such a position of 
powerlessness as to command extraordinary protection from the majoritarian 
political process. . . . [These groups have] been subjected to unique 
disabilities on the basis of stereotyped characteristics not truly indicative of 
their abilities.

(citation omitted). In a similar manner, the Court in Cleburne v. Cleburne Living Center, 

473 U.S. 432, 440 (1985), explained that race, alienage and national origin have been held 

to be suspect classifications because:

[t]hese factors are so seldom relevant to the achievement of any legitimate 
state interest that laws grounded in such considerations are deemed to reflect 
prejudice and antipathy — a view that those in the burdened class are not as 
worthy or deserving as others. For these reasons and because such 
discrimination is unlikely to be soon rectified by legislative means, these laws 
are subjected to strict scrutiny and will be sustained only if they are suitably 
tailored to serve a compelling state interest.

The Cleburne Court also explained that intermediate scrutiny was applied to 

classifications that rest upon defining characteristics that, while not "so seldom relevant to 

the achievement of any legitimate state interest" as those delimiting suspect classes, "very 

likely reflect outmoded notions of . . . capabilities" and "bear[] ‘no relation to the 

individual’s ability to participate in and contribute to society.’" 473 U.S. at 441, citing 

Mathews v. Lucas, 427 U.S. 495, 505 (1976). Under this intermediate level of scrutiny, 

classifications based on characteristics such as gender or illegitimacy will be found 

constitutional only if they are substantially related to an important governmental interest. 

See Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982).

Thus, there are three general factors that lead to heightened scrutiny of 

classifications under the Equal Protection Clause: (1) past disadvantage; that is, whether 

the relevant group has historically been subjected to "purposeful unequal treatment" or 

saddled with disabilities "on the basis of stereotyped characteristics" and prejudice; (2)

19



shared characteristics that define individuals as members of a discrete group but have only 

a tenuous relationship to their "ability to perform or contribute to society;" and (3) a 

position of relative political powerlessness within the majoritarian political arena. With 

respect to each of these factors, the record in this case, and undisputed materials of which 

this Court may take judicial notice,8 amply justifies heightened scrutiny of the sexual 

orientation classification that is at the heart of Issue 3.

A. The District Court Correctly Recognized the History of Intentional Discrimination
Against Gay Men, Lesbians and Bisexuals

In concluding that gay men, lesbians and bisexuals have suffered a history of 

invidious discrimination based on their sexual orientation, Equality II, slip op. at 41-42, the 

District Court’s ruling conforms with the determinations of a number of other courts that 

have considered this issue. Indeed, even courts that have declined to find that gays, 

lesbians and bisexuals constitute a suspect or quasi-suspect class have found that gay 

persons have been subjected to prejudice, unequal treatment, and discrimination. See, e.g., 

High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 

1990)("homosexuals have suffered a history of discrimination . . . ."); Ben-Shalom v. Marsh, 

881 F.2d 454, 461 (7th Cir. 1989), cert, denied 494 U.S. 1004 (1990)("There no doubt is 

prejudice against homosexuals both in and out of the Army."); Padula v. Webster, 822 F.2d

8 Courts have frequently taken judicial notice of private and governmental discrimination 
based on prior judicial determinations and undisputed information in the public record. See, 
e.g., United Steelworkers of America v. Weber, 443 U.S. 193, 198 n.l (1979) ("Judicial findings of 
exclusion from crafts on racial grounds are so numerous as to make such exclusion a proper 
subject for judicial notice"); Graves v. Barnes, 343 F. Supp. 704, 728 (W.D.Tex. 1972) (noting, 
based on judicial decisions, that "the Mexican-American population of Texas . . .  has historically 
suffered from, and continues to suffer from, the results and effects of invidious discrimination 
and treatment in the fields of education, employment, economics, health, politics and others").

20



97, 104 (D.C. Cir. 1987)(recognizing "the general public opprobrium toward homosexuality 

. . . Dahl v. Secretary o f the United States Navy, 830 F. Supp. 1319, 1324 n. 7 (E.D. Cal.

1993) ("It is undisputed that homosexuals have historically been discriminated against . . . 

see also Rowland v. Mad River Local School District, 470 U.S. 1009, 1014

(1985)(Brennan, J., dissenting from denial of cert. )("homosexuals have historically been the 

object of pernicious and sustained hostility, and . . . discrimination against homosexuals is 

‘likely . . .  to reflect deep-seated prejudice rather than . . . rationality.’")(quoting Plyler v. 

Doe, 457 U.S. 202, 216-17 n. 14 (1982)).9

The breadth and scope of this historical and present-day discrimination is extensive, 

and although the manifestations of this prejudice have varied over time, group-based 

animosity towards gays, lesbians and bisexuals has remained a constant. During the 

McCarthy era, for example, "homosexuality was grouped with communism as a grave evil 

to be rooted out of the federal government. From 1947 through mid-1950, the federal 

government denied 1700 individuals employment because of alleged homosexuality." 

Developments in the Law — Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1556 

(1989). "Until 1965, homosexual aliens were excluded from admission into the U.S. as 

psychopaths under 8 U.S.C. § 1182(a)(4)," and for many years after that gay men and 

lesbians continued to be excluded as "sexual deviants." Note, Sexual Orientation 

Discrimination in the Wake o f Bowers v. Hardwick, 22 Ga. L. Rev. 773, 773 n.4 (1988)

9 Defendant City of Cincinnati errs in citing Ben-Shalot i, supra, and Steffan v. Cheney, 
780 F.Supp. 1 (D.D.C. 1991), affd  sub nom Steffan v. Pery, 1994 WL 652249 (D.C. Cir
1994) (en banc) for the proposition that lesbians, gay men and bisexuals have not suffered 
a history of discrimination. To the contrary, although these cases uphold the government’s 
differential treatment of gay persons, they recognize that gay men, lesbians and bisexuals 
have as a group suffered a history of discrimination.

21



(hereinafter "Sexual Orientation Discrimination”).

In the case at hand, the testimony of both Professor George Chauncey, an historian 

from the University of Chicago, and Professor Kenneth Sherrill, a political scientist from 

Hunter College, supports the District Court’s conclusions that anti-gay discrimination is 

both public and private, and that it has been, and continues to be, perpetrated throughout 

all levels of society and government. The testimony also supports the more specific 

conclusion that anti-gay discrimination has pervaded state and local law enforcement 

activities and has included a former presidential directive against gays, lesbians and 

bisexuals, as well as the purging of gay persons from government employment and private 

employment by government contractors. Slip op. at 12-13; see also Pltf. Ex. 7 (Affidavit 

of Professor George Chauncey); Pltf. Ex. 63 (Expert Report of Professor Kenneth Sherrill).

For example, Chauncey testified that sexual orientation-based employment 

discrimination persists. Jt. Ex. VI at 105 (deposition of Professor George Chauncey); see 

also Pltf. Ex. 75, 89, 94, 107, 124, 127, 131, 154, 160, 162. Anecdotal and survey evidence 

further confirm that employment discrimination severely impacts gay, lesbian and bisexual 

people.10 Moreover, Professor Chauncey described how local laws were employed to 

deter early gay political organization, and how public antipathy and stereotyping was 

prevalent in governmental policies and popular portrayals of lesbians and gay men. Pltf. 

Ex. 7. His testimony was not only supported by other evidence in the case, but also was 

not seriously contested by the Defendants. Slip op. at 13-14. See also R.86; Tr, at 54-56, 

86-87, 174-175 (testimony of Ohio Civil Rights Commissioner John Burlew). Accordingly,

10 For examples from the state of Ohio, see Report of the State Advisory Committee 
on Gay and Lesbian Issues, June 1990. (Pltf. Ex. 75).

22



the District Court ruling that gays, lesbians and bisexuals have suffered a history of 

invidious discrimination based on their sexual orientation should be affirmed. Slip op. at 

41, 42.

B. Sexual Orientation is a Discrete Trait Unrelated to One’s
Ability to Contribute to Society

Ample evidence in the record demonstrates, and the District Court correctly held, 

that sexual orientation is irrelevant to a person’s ability to perform, participate in, or 

contribute to society, slip op. at 42-43, and that there is no basis in fact for commonly held 

negative beliefs about homosexuality.11 Slip op. at 11-12, 17-19. Intervenors themselves 

admit, for example, that sexual orientation is irrelevant to admission to public schools. 

Brief of Intervenors-Appellants at 39. Because sexual orientation is rarely, if ever, relevant 

to a person’s qualifications or abilities, classifications under which governments treat gay 

people differently from others are "more likely than others to reflect deep-seated prejudice 

rather than legislative rationality in pursuit of some legitimate objective." Ptyler, 457 U.S. 

at 216 n.4.

11 Indeed, over twenty years ago, the American Psychiatric Association issued a 
resolution declaring that "homosexualityperse implies no impairment in judgment, stability, 
reliability or general social or vocational capabilities . . . ." Resolution of the American 
Psychiatric Association, Dec. 15, 1973. Pltf. Ex. 10, p. 4.

Moreover, Cammermeyer v. Aspin, 850 F.Supp. 910, 922 (W.D. Wash. 1994), a case 
which the District Court in the instant case relied upon in reaching its conclusion that 
sexual orientation bears no relation to an individual’s ability to perform in, participate in, 
or contribute to, society, examined a number of studies -- unrefuted by the federal 
government — which concluded that sexual orientation is nc t determinative of a person’s 
aptitude for military service. See Slip op. at 42. See also Able v. United States, 847 F.Supp. 
1038, 1041, 1045 (E.D.N.Y. 1994) (preliminarily enjoining enforcement of most recent 
version of military’s ban on gay and lesbian service members, noting that evidence suggests 
sexual orientation is unrelated to soldiering ability).

23



The Supreme Court has made clear that immutability is not necessary to establish 

a classification as suspect.12 While the Court has, on occasion, focused on 

immutability,13 it is clear that with regard to the trait common to the class, the Court has 

never required a genetic or biological immutability in the sense that members of the class 

must be physically unable to change or mask the trait defining their class.14 Indeed, 

people can frequently hide their national origin by changing their names, their customs, or 

their associations. Nevertheless, classifications based on nationality undergo strict scrutiny. 

See Korematsu v. United States, 323 U.S. 214 (1944). Aliens can ordinarily become 

naturalized citizens, yet classifications drawn separating aliens from others are similarly 

subject to strict scrutiny. See Graham v. Richardson, 403 U.S. 365 (1971). And despite the 

availability of sex-change operations, classifications based on gender receive heightened 

scrutiny. See Mississippi University for Women v. Hogan, 458 U.S. 718 (1982).

Moreover, even where it has referred to the "immutability" of a certain trait, the 

Supreme Court has explained that the determinative factor for suspect classification 

purposes is whether the "characteristic frequently bears no relation to ability to perform

12 See, e.g. Cleburne, 473 U.S. at 442 n. 10, (casting doubt on immutability theory); id. 
at 440-441 (stating the defining characteristics of suspect classes without mentioning 
immutability); Murgia, 427 U.S. at 313 (same); San Antonio Indep. School Dist. v. Rodriguez, 
411 U.S. 1, 28, (same).

13 See, e.g., Plyler, 457 U.S. at 220; Frontiero, 411 U.S. at 686 plurality). See also 
Parham v. Hughes, 441 U.S. 347, 351 (1979) (plurality opinion) (describing race, national 
origin, alienage, illegitimacy, and gender as immutable).

14 Although physical immutability is not a legal requirement for heightened scrutiny, 
it bears noting that whether heterosexual, homosexual or bisexual, sexual orientation is 
either unchangeable or at least highly resistant to change. In fact, both the American 
Psychological and American Psychiatric Associations have condemned as unethical (as well 
as unsuccessful) so-called "reparative" or "conversion" therapies that seek to alter the sexual 
orientations of gay people. See slip op. at 42; see also Pltf. Ex. 10.

24



or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973). Sexual

orientation is such a trait. As one commentator has concluded

Discrimination based on homosexuality is more like discrimination based on 
race, national origin, alienage, gender, and illegitimacy than it is like 
discrimination based on age or retardation. Homosexuality bears no relation 
to the ability to perform tasks. Homosexuals are not inherently mentally ill, 
are not more prone to crime than heterosexuals, and do not adversely affect 
the growth and development of children . . . .  Homosexuals further resemble 
these protected groups in that homosexuals are subject to extreme prejudice.

Sexual Orientation Discrimination, at 798.

C. Lesbians. Gay Men and Bisexuals Are Relatively Politically Powerless

While recognizing that relative political powerlessness is "by no means the 

controlling criteria in determining suspect or quasi-suspect status," slip op. at 44 n.17, the 

District Court correctly concluded that the plaintiffs, though "not a wholly politically 

powerless group, do suffer significant political impediments." Id. at 44.

In San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), the 

Supreme Court described this inquiry as whether the classified group is "relegated to such 

a position of political powerlessness as to command extraordinary protection from the 

majoritarian political process." Id. at 28. See also Bowen v. Gilliard, 483 U.S. 587 (1987). 

Later that Term, while examining a gender-based classification, four members of the Court 

in Frontiero v. Richardson, 411 U.S. 467 (1973), discussed the disproportionately low 

representation of women in elected and appointed office at the state and federal level, 

commenting that although "the position of women in America has improved markedly in 

recent decades . . .  it can hardly be doubted that . . . women still face 

pervasive . . . discrimination in the political arena." Id. at 686.

25



Although it can be argued that the position of gays, lesbians and bisexuals in 

America has improved in recent decades, this group still faces pervasive discrimination, 

particularly in the political arena. As plaintiffs’ experts testified without contradiction, the 

virtual absence of open lesbians and gay men from elected office reflects the great difficulty 

gays and lesbians have in achieving a fair hearing from the majoritarian political process. 

Professor Sherrill testified that no Senators and only two members of the House of 

Representatives are openly gay. Pltf. Ex. 63, 132. At the state level, only 12 of 7,641 state 

legislators are openly gay. Id. at 63, 132. Out of the 497,155 elected officials in the United 

States, a total of 73 are openly lesbian or gay. Id. at 63, 132. The statistics reflect even 

a smaller representation among judges — at all levels of the judiciary across the country, 

fewer than 20 judges are openly lesbian or gay. Id. at 63, 130, 133.

Thus, under the standard laid out in Frontiero, lesbians and gay men, who number 

approximately 5-13% of the population, are among the least powerful citizens in the 

United States today. Slip op. at 17. Accordingly, the District Court’s recognition below 

that "openly gay, lesbian and bisexual individuals are almost entirely absent from the 

‘Nation’s decisionmaking councils’ as were women at the time of the Frontiero decision," 

slip op. at 47 and n.20, rests on unrefuted (and irrefutable) evidence.

Significantly, Appellants do not dispute the overwhelming evidence that gays, 

lesbians and bisexuals face distinct obstacles in the political arena. These obstacles, 

including widespread public hostility, impede the ability of lesbian and gay people to build 

the coalitions necessary for any minority group to achieve legislative success or even fair 

treatment in the political process. See Pltf. Ex. 63; see also R. 90; Tr. at 279-280 (testimony 

of Professor Sherrill); R. 92; Tr. at 929-30 (testimony of defense expert J. David Woodard).

26



Moreover, although intervenors urge that gay people "have the ability to attract the 

attention of the lawmakers," Brief of Intervenors-Appellants at 39 n.24, they disregard the 

fact that much of the attention gay people receive through the political process is hostile, 

with Issue 3 being a prime example.15 Based upon an examination of 38 referenda aimed 

at restricting gay and lesbian rights that have been placed on the ballot through December 

1993, one expert testified that no other minority group -- including African Americans and 

undocumented aliens -- has suffered as much animosity through the use of the initiative 

and referenda processes. (Pltf. Ex. 63, 163, 164, 102, and 166-177).16 The District Court 

correctly relied upon this evidence to conclude that, due to public fear and antipathy, the 

gay community remains politically vulnerable and is hindered from building the mainstream 

coalitions necessary to obtain fair treatment from the majority.

D. The District Court’s Holding is Fully Consistent With 
the Supreme Court’s Decision in Bowers v. Hardwick

The District Court properly held that neither Bowers v. Hardwick, 478 U.S. 186 

(1986), nor subsequent cases cited by appellants, resolve the question of whether sexual

15 Professor Chauncey, in his deposition, also testified about the spate of anti-gay 
initiatives currently sweeping the country. See Jt. Ex. VI at 212-213. Some of these 
initiatives mandate discrimination against gays and lesbians and make it more difficult for 
gays, lesbians and bisexuals to organize politically. Id. at 133, 135; slip op. at 14.

16 Dr. Sherrill also testified that federal, state and local lawmakers have proposed and 
enacted numerous bills and laws that limit the rights of, and public discussion about, gays, 
lesbians and bisexuals. See generally Pltf. Ex. 63 (Sherrill C o.) and exhibits cited therein. 
See also Helms Amendment, Labor-Health and Human Services Appropriations Bill for 
Fiscal Year 1988, Pub. L. No. 100-202, § 514 (placing unique content restriction on AIDS 
education materials directed toward gay men); see also Barnes, Toward Ghastly Death: 
The Censorship of AIDS Education, 89 Colum. L. Rev. 698, 712-14 (1989) (describing 
Senate debate over Helms Amendment).

27



orientation-based classifications merit heightened scrutiny. First, Hardwick was decided 

under a different legal doctrine than the one currently before this Court The parties in 

Hardwick did not argue, and the Court declined to consider, the issue of whether the 

Georgia sodomy statute might violate the Equal Protection Clause. Instead, the Court 

examined that law only for violations of the Due Process Clause. See Bowers v. Hardwick, 

478 U.S. 186 at 196, n. 8 (1986).17

It is well-established that the Due Process and Equal Protection Clauses, although 

related, serve distinct constitutional interests. While the Due Process Clause safeguards 

historically protected spheres of activity that are "deeply rooted in this Nation’s history and 

tradition," Hardwick, 478 US at 192, citing Moore v. City o f East Cleveland, 431 U.S. 494, 

503 (1977), and Griswold v. Connecticut, 381 U.S. 479, 506 (1965), the anti-discrimination 

principle of the Equal Protection Clause protects disadvantaged groups from the effects 

of past and present discrimination by the majority. See, e.g., Murgia, A ll  U.S. at 313. 

Indeed, the purpose of the Equal Protection Clause is not to guard historic values and 

practices, but rather to shield disadvantaged minorities from discriminatory practices, no 

matter how deeply ingrained and enduring. See Watkins, 875 F.2d 699, 781 (9th Cir. 1989), 

cert, denied, 111 S.Ct. 384 (1990) (Norris, J. concurring); C. Sunstein, Sexual Orientation 

and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 

55 U. Chi. L. Rev. 1161, 1163 (1988).

17 See also Hardwick, 478 U.S. at 201 (Blackmun, J., dissenting) (Noting that the Court 
"refused to consider" Equal Protection Clause); Doe v. Casey, 796 F.2d 1508, 1522 (D.C.Cir.
1986), affd in part, rev’d in part sub. nom, Webster v. Doe, __ U.S.__, 108 S.Ct. 2047
(1988)("Although ... the Supreme Court’s recent decision in Bowers v. Hardwick [held] that 
homosexual conduct is not constitutionally protected, the Court did not reach the different 
issue of whether an agency of the federal government can discriminate against individuals 
merely because of sexual orientation.” (Footnotes omitted and emphasis in original).

28



Moreover, the Hardwick Court did not, contrary to intervenors’ suggestion, uphold 

differential treatment of citizens based upon their sexual orientation. Brief of Intervenors- 

Appellants at 33. Rather, it upheld Georgia’s gender-neutral proscription of certain types 

of sexual contact in a case involving persons of the same gender.18

Those courts that have relied on Hardwick to reject heightened scrutiny for sexual 

orientation-based classifications, see, e.g., High Tech Gays v. Defense Industry Security 

Clearance Office, 895 F.2d 563 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 

1989); Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989); Padula v. Webster, 822 

F.2d 97 (D.C. Cir. 1987), misperceived Hardwick's due process ruling as governing an equal 

protection inquiry. The Supreme Court’s finding that specific acts may be criminalized 

because they are not "implicit in the concept of ordered liberty" or "deeply rooted in this 

Nation’s history," Hardwick, 478 U.S. at 191-92, does not answer the question of whether 

sexual orientation affects a person’s ability to contribute to or perform in society. Cf Lyng 

v. Castillo, 477 U.S. 635, 638 (1986) (though family relationships protected as fundamental 

right, classifications that disadvantage close relatives not suspect, in part because 

historically they have not been subject to discrimination). As discussed, supra, 

classifications based on sexual orientation satisfy the criteria for quasi-suspect treatment 

set forth by the Supreme Court, and therefore warrant heightened scrutiny.

Moreover, as discussed above, the "conduct" criminalized in Hardwick involved 

specific acts engaged in by heterosexuals as well as gay people. Neither the Georgia statute 

nor the Hardwick ruling reached the "deeply rooted, complex combination of factors

18 The statute at issue in Hardwick involved the performance of or submission to "any 
sexual act involving the sex organs of one person and the mouth or anus of another." Id., 
at 188 n.l, citing Ga. Code Ann. § 16-6-2 (1984).

29



including a predisposition towards affiliation, affection, or bonding with members of the 

opposite and/or the same gender," slip op. at 17, that sexual orientation comprises.19 Nor 

did Hardwick address the self-identification and protected associations that commonly form 

part of a gay or lesbian person’s identity. As the District Court correctly found, unrebutted 

evidence in this case flatly contradicted the assumption upon which the Padula and 

Woodward courts relied — that the class of lesbians and gay men is defined solely by 

engagement in criminalized sexual acts. Relying on that unrebutted record evidence, the 

District Court here "expressly rejected] the notion that homosexual orientation is ’defined 

by’ any conduct . . . ." Slip op. at 49.

Notably, too, in the military cases distinguished by the District Court, slip op. at 47- 

49, the government alleged a national security interest either in regulating particular sexual 

acts or maintaining its differential treatment of lesbians and gay men -- and in each case, 

the court emphasized that its ruling was colored, at least in part, by the "special deference 

[that] must be given by a court to the military." Woodward, 871 F.2d at 1077; see also 

Marsh, 881 F.2d at 465 (same).

Lastly, in both Ben-Shalom and High Tech Gays, the courts applied an 

unprecedented and unrealistic approach to the question of political powerlessness. The 

Seventh Circuit, for example, found gay men and lesbians to be a politically powerful group 

based almost exclusively on the presence of between one and five openly gay or lesbian 

officials in the federal government, and the attendance at a gay rights parade by the Mayor 

of Chicago. Ben-Shalom, 881 F.2d at 466 n.9. In High Tech Gays, the Ninth Circuit held

19 It bears noting, as well, that the Georgia sodomy law proscribes only particular sexual 
acts and leaves permissible a wide range of sexual behavior, whether between members of 
the same or different sexes.

30



that "homosexuals are not without political power" based solely on the fact that a few cities 

and fewer states had passed anti-discrimination laws. 895 F.2d at 574 and n. 10.

Neither race nor gender classifications would qualify as suspect — when courts first 

made that determination or today — if a single known legislative representative or a few 

anti-discrimination laws disqualified a group from heightened equal protection scrutiny. 

Amici urge this Court to uphold the District Court’s correct application of the principles 

outlined by the Supreme Court to determine the appropriate level of equal protection 

scrutiny for sexual orientation discrimination.

That many people dislike, disapprove of, or have an aversion to people who are 

lesbian, gay or bisexual, Brief of Intervenors-Appellants at 33, Brief of Appellants at 24,
i

underscores the likelihood that differential treatment of gay people reflects those feelings 

rather than a reasoned judgment about whether being lesbian, gay or bisexual bears on a 

person’s ability to contribute to society. Even where societal mores give rise to laws that 

condemn certain conduct (which is not the case with Issue 3), such sentiment does not help 

us to discern whether the fact of a person’s sexual orientation — heterosexual, lesbian, gay 

or bisexual -  has anything to do with that person’s ability to perform in an employment 

setting or be a responsible tenant or a law-abiding citizen. Rather, widespread public 

disapproval of certain acts, when translated into disapproval of the people presumed to 

engage in those acts, is a quintessential example of an instance where the court should 

scrutinize identity-based classifications particularly closely for an importation -of private 

prejudices unrelated to merit

It is perfectly consistent to say that homosexual sodomy is not a practice so 
deeply rooted in our traditions as to merit due process protection, and at the 
same time to say, for example, that because homosexuals have historically 
been subject to invidious discrimination, laws which burden homosexuals as

31



a class should be subjected to heightened scrutiny under the equal protection 
clause. Indeed, the two propositions may be complementary: In all
probability, homosexuality is not considered a deeply-rooted part of our 
traditions precisely because homosexuals have historically been subjected to 
invidious discrimination.

Watkins v. U.S. Army, 875 F.2d 699, 719 (9th Cir. 1989), cert, denied, 111 S.Ct 384 

(1990)(Norris, J., concurring). As Issue 3 expresses directly a legislative sentiment that 

"those in the burdened class are not as worthy or deserving as others," Cleburne at 440, at 

least insofar as receipt of governmental protection against discrimination is concerned, the 

district court’s ruling to subject its classification to heightened scrutiny should be upheld.20

20 Constitutional scholar Laurence H. Tribe’s analysis also supports the ruling below:

Not only is the characteristic of homosexuality or heterosexuality central to 
the personal identities of those singled out by laws based on sexual 
orientation, but homosexuals in particular seem to satisfy all of the Court’s 
implicit criteria of suspectness. As subjects of age-old discrimination and 
disapproval, homosexuals form virtually a discrete and insular minority.
Their sexual orientation is in all likelihood "a characteristic determined by 
causes not within [their] control" (noting Mathews v. Lucas, 427 U.S. 495, 505 
(1976), describing illegitimacy), and is, if not immutable, at least "extremely 
difficult to alter." (citation omitted). Further, and in contrast with a 
characteristic like mental retardation, homosexuality bears no relation at all 
to the individual’s ability to contribute fully to society, (footnote omitted).

Laurence Tribe, American Constitutional Law at 1616 (2nd ed. 1988); see also, John H. 
Ely, Democracy and Distrust 19 at 163-64 (1980) (suggesting that homosexuals may 
constitute a suspect class); Mark Strasser, Suspect Classes and Suspect Classifications: On 
Discriminating, Unwittingly or Otherwise, 64 Temple Law Review 937 (1991); Note, The 
Constitutional Status o f Sexual Orientation: Homosexuality as a Suspect Classification, 98 
Hard L Rev 1285 (1985); Note, An Argument for the Application of Equal Protection 
Heightened Scrutiny to Classifications Based on Homosexuality, 57 S Cal Rev 797 (1984).

32



Ill
ISSUE 3 IS NOT RATIONALLY RELATED TO ANY LEGITIMATE 

GOVERNMENTAL OBJECTIVE

Whether or not this Court reviews Issue 3 under a heightened level of judicial 

scrutiny, the measure violates Equal Protection because its facial discrimination against 

lesbians, gay men, and bisexuals21 is not rationally related to a legitimate governmental 

purpose. See Cleburne, 473 U.S. at 440. Indeed, Issue 3 fails both prongs of the rational 

basis inquiry. First, the District Court correctly found that the measure’s actual objective 

is an impermissible one. Second, the court properly determined that Issue 3 is not 

rationally related to any legitimate objective.

A. Issue 3’s Actual Objective is a Constitutionally Impermissible One

The court below found as a matter of fact that Issue 3 was drawn to serve a 

constitutionally illegitimate purpose: institutionalization of societal antipathy toward 

members of a particular group. See, e.g., Equality II at 59 (finding that Issue 3’s very design 

"implies nothing more than a ‘bare desire to harm an unpopular group’ based on who the

21 Remarkably, intervenors contend that Issue 3 "does not impose any ‘special burdens 
on [homosexual] minorities within the governmental process,’" Brief of 
Appellants-Intervenors at 25, quoting Hunter at 391 (bracketed language supplied by 
intervenors), and "does not constitute governmental discrimination against homosexuals . 
. . ." Id. at 30. This assertion flies in the face of the District Court’s factual findings, as 
well as the clear language, purpose, and intended effect of the initiative. As a result of 
Issue 3, no arm of city government may address the needs of gay men, lesbians or bisexuals 
— as distinguished from all other Cincinnati residents -- save through an onerous process 
of City Charter amendment in which, as past experience illustrates, members of those 
groups cannot prevail. It ignores reality to suggest that a measure that strips all branches 
of City government of the power to address the particular needs of a particular group 
under any circumstances, except with the prior approval of a majority of the electorate 
through amendment of the city charter, does not place a special burden on members of 
that group.

33



members of that group are"). The Supreme Court has made clear that, whether or not a 

law disadvantages individuals based on a suspect or quasi-suspect classification, "bare . . . 

desire to harm a politically unpopular group" is a constitutionally impermissible motivation. 

Cleburne, 473 U.S. at 447. The Court has therefore invalidated legislative attempts to 

disadvantage persons through the law, based on public or governmental antipathy toward 

human characteristics or group membership. Irrational reliance on stereotypes of the kind 

the District Court identified below is similarly illegitimate. Cleburne, 473 U.S. at 447. See 

Equality II at 19 ("ERNSR campaign materials were riddled with unreliable data, irrational 

misconceptions and insupportable misrepresentations about homosexuals") (footnote 

omitted).

Where, as in Cleburne, the Court has found evidence that group-based animosity or 

irrational fear likely motivated a government decision, it has evinced a willingness both to 

limit its inquiry to those justifications actually articulated or advanced by the government 

defendants, and to focus on record evidence and legislative history, rather than pure 

speculation, in order to evaluate the rationality of an enactment.

While the intervenors in this case correctly point out that in most "rational basis" 

cases, the courts have upheld economic or social legislation when it appeared to serve any

conceivable legitimate motive, FCC v. Beach Communications, 508 U .S .___, ___, 113 S.Ct.

2096, 2101 (1993), this is because "[t]he Constitution presumes that, absent some reason to 

infer antipathy, even improvident decisions will eventually be rectified by the democratic 

process and that judicial intervention is generally unwarranted no matter how unwisely we 

may think a political branch has acted." Vance v. Bradley, 440 U.S. 93, 97 (1979) (emphasis 

added). Where, however, as in the instant case, there is strong evidence of group-based

34



antipathy, the likelihood that the democratic process will correct the defect is absent, and 

judicial determination must depend upon evidence, not speculation.22 The Supreme 

Court’s unwillingness in Cleburne to accept any conceivable justification for the disparate 

treatment of mentally disabled adults, despite the Court’s conclusion that different 

treatment of this group did not trigger strict scrutiny, clearly resulted from the existence 

of record evidence pointing to a constitutionally impermissible legislative purpose.

In United States Department o f Agriculture v. Moreno, 413 U.S. 528 (1973), the Court 

struck down under rational basis scrutiny a change to the federal Food Stamp program that 

made benefits available to households whose members were related to each other, but not 

to those whose members were unrelated. Concluding that "[t]he legislative history that 

does exist. . .  indicates that the amendment was intended to prevent so-called ‘hippies’ and 

‘hippie communes’ from participating in the food stamp program," id. at 534 (citing 

legislative history), the Court asserted in no uncertain terms that "[t]he challenged 

classification clearly cannot be sustained by reference to this congressional purpose. For 

if the constitutional conception of ‘equal protection of the laws’ means anything, it must 

at the very least mean that a bare congressional desire to harm a politically unpopular 

group cannot constitute a legitimate governmental interest.” Id. at 534-535.

22 In further support of this conclusion, the Court in New Orleans v. Dukes, 427 U.S. 
297 (1976), ruled that its prior decision in Morey v. Dowd, 354 U.S. 457 (1957) (invalidating 
on Equal Protection grounds an exception to the Illinois Community Currency Exchanges 
Act), had been wrongly decided. In so doing, the Dukes Court described Morey as the 
"only case in the last half century to invalidate a wholly econot lie regulation solely on equal 
protection grounds . . . ." 427 U.S. at 306 (emphasis added) Given the Court’s decision 
in Moreno just three years earlier, one must conclude that evidence of group-based 
antipathy and distinctions based on human characteristics in Moreno caused the Court to 
distinguish that decision from "wholly economic" regulations such as those considered in 
Morey and Dukes.

35



Although the legislative exclusion of unrelated living groups neither infringed a 

fundamental right nor discriminated against a suspect class, the Court went on to analyze 

the government’s articulated justifications for adopting the challenged rule in order to judge 

its rationality, id. at 534 (“The challenged statutory classification (households of related 

persons versus households containing one or more unrelated persons) is clearly irrelevant 

to the stated purposes of the Act") (emphasis added), and to reject those justifications 

based on the provision’s practical operation. Id. at 537 ("in practical effect, the challenged 

classification simply does not operate so as rationally to further the prevention of fraud").

In Plyler v. Doe, 457 U.S. 202 (1982), the Court declined to recognize undocumented 

children as a suspect class, but nonetheless invalidated a law excluding them from 

educational services. In so doing, the Court expressed particular concern about the 

singling out of this unpopular and powerless group for status-based punishment. See, e.g., 

id. at 219 n.18 (quoting district court’s discussion of the "underclass" of undocumented 

aliens "who are virtually defenseless against any abuse, exploitation, or callous neglect to 

which the state or the state’s natural citizens and business organizations may wish to 

subject them"); id. at 219-220 (noting that "[t]he children who are plaintiffs in these cases 

‘can effect neither their parents’ conduct nor their own status.’"), quoting Trimble v. 

Gordon, 430 U.S. 762, 770 (1977). The Court went on to reject the State’s hypothetical 

justifications as unsupported by the record evidence. Id. at 228 (“While a State might have 

an interest in mitigating the potentially harsh economic effects of sudden shifts in 

population, . . . .  [tjhere is no evidence in the record suggesting that illegal entrants impose 

any significant burden on the State's economy.”) (emphasis added); id. at 229 ("the record 

in no way supports the claim that exclusion of undocumented children is likely to improve

36



the overall quality of education . . .

This Court has applied a similar analysis. In Bannum, Inc. v. City o f Louisville, 

Kentucky, 958 F.2d 1354 (6th Cir. 1992), this Court invalidated a zoning decision that 

subjected community training centers (CTCs) for ex-offenders to an onerous permit 

requirement not applicable to other group housing facilities. Based on the evidence 

adduced at trial — Le., "the lack of data supporting the city’s contention that the incidence 

of crime is inflated in areas containing CTCs, and the evidence in the record of substantial 

community opposition to [the plaintiffs’] proposed CTC' — the Court concluded that the 

challenged decision was likely based on "mere negative attitudes, or fear, unsubstantiated 

by factors which are properly cognizable in a zoning proceeding . . .  ." Id. at 1361, quoting 

Cleburne, at 448. Having so concluded, this Court went on to reject the city defendant’s 

articulated justifications because "[t]he record reveals no indication that these concerns 

were founded in fact, nor is any reason advanced explaining why a CTC implies these 

concerns to such an extent that a conditional use permit requirement is reasonable, while 

other similar group homes do not." Id. (emphasis added).

And in Horizon House v. Township of Upper Southhampton, 804 F. Supp. 683 

(E.D.Pa. 1992), the court invalidated under the Equal Protection Clause a township 

ordinance imposing a 1,000-foot spacing requirement in the siting of group homes for the 

mentally retarded. Having identified group-based animosity as a likely motivation for the 

ordinance, the court tested the township’s justifications based on the record evidence, and 

found those justifications to be lacking. E.g., id. at 700 ('the evidence has shown that [the 

ordinance] is only related to the Township’s ungrounded fears about people with 

handicaps").

37



In contrast to these rulings, in Heller v. Doe, 508 U .S .___, 113 S.Ct. 2637 (1993),

the Court considered a Kentucky law that established a less stringent standard of proof for 

the civil commitment of mentally retarded individuals than for the civil commitment of 

mentally ill individuals. As in Cleburne, the issue was the constitutionality of distinctions 

based on mental retardation. Unlike in Cleburne, however, there was no indication that 

the distinction was motivated by a "bare desire to harm" members of either group. Hence, 

the Court did not require the State to produce evidence in support of its justification and 

placed the burden on the plaintiffs "to negate every conceivable basis which might support 

it, whether or not the basis actually has a foundation in the record." Id. at 2643 (internal 

quotations omitted).23

The juxtaposition of Cleburne and Heller demonstrates forcefully the courts’ 

responsibility to root out even conceivably rational enactments that are motivated by the 

desire to harm a politically unpopular group. It bears noting that this type of review does 

not constitute a form of heightened scrutiny. The standard remains rationality, since 

objectives that would not justify racial or other suspect classifications (or the infringement 

of fundamental rights) may suffice to explain non-suspect categorizations; however, the 

courts have under these circumstances looked to factual evidence to ensure that the basis 

for the challenged discrimination is rooted in fact and logic and is, therefore, rational.

As a consequence, the District Court in the instant case was correct in examining 

evidence about the conduct and motives of the sponsors of Issue 3. Although the court

23 Even in cases, such as Heller, in which there is no hint of a legislative intention to 
harm a politically unpopular group, the government’s articulated justification "must find 
some footing in the realities of the subject addressed by the legislation." Id., 113 S.Ct. at 
2643; see also United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166,179 (1980) (under 
rational basis scrutiny, disparate treatment must be justified by "plausible reasons").

38



could not (and did not) inquire into the motivation of the voters who approved the 

challenged measure, Arthur v. City o f Toledo, Ohio, 782 F.2d 565, 574 (6th Cir. 1986), it 

remains appropriate to examine the motivation of the initiative’s sponsors. See, e.g., 

Washington v. Seattle School District No. 1, 458 U.S. 457, 471 (1982) ("there is little doubt 

that the initiative was effectively drawn for racial purposes") (emphasis added); Arthur, 782 

F.2d at 572 ("although [the referendum at issue in Washington] was facially neu tra l. . .  the 

Court did not doubt that the initiative organizers effectively drew the initiative for racial 

purposes"), quoting Washington at 471 (emphasis added).

Indeed, the courts’ ability to root out subtle, as well as blatant discrimination hinges 

on their ability to review the context and motives from which state action springs. See, e.g., 

Washington v. Davis, 426 U.S. 229, 239 (1976); Hunter v. Underwood, 471 U.S. 222 (1985). 

If, as this Court has concluded, the Equal Protection Clause is fully applicable to provisions 

enacted by referendum, Clarke, slip op. at 15, then the courts must be empowered to 

scrutinize the objectives of a referendum’s sponsors, irrespective of whether, as here, the 

referendum is facially discriminatory.

As discussed supra, the District Court’s factual determinations as to the actual intent 

and effect of Issue 3 may be reversed only upon a finding of clear error. Indeed, the 

Supreme Court has repeatedly held that a trial court’s factual finding that a governmental 

decision was or was not motivated by an illicit purpose is subject to the clearly erroneous 

standard. See, e.g., Hernandez v. New York, 500 U.S. 352 (1991) (plurality opinion) (trial 

court’s finding that prosecutor did not exercise peremptcry challenges based on race 

subject to clearly erroneous standard); Batson v. Kentucky, 476 U.S. 79, 98 n.21 (1986) 

(because trial court’s finding whether a prosecutor’s peremptory strike was racially

39



motivated "tum[s] on evaluation of credibility, a reviewing court ordinarily should give 

those findings great deference"); Hunter v. Underwood, 471 U.S. 222, 229 (1985) (Court of 

Appeals correctly found that District Court committed clear error in concluding state 

constitutional provision was not adopted out of racial animus); Rogers v. Lodge, 458 U.S. 

613, 622-623 (1983) (clearly erroneous standard applies to review of finding that at-large 

voting system was maintained for discriminatory purpose); Clarke, slip op. at 5 (question 

whether an electoral system was adopted with discriminatory intent is a factual question 

to be reviewed "for clear error only").

The District Court’s findings of impermissible motive are supported by the record 

and are not clearly erroneous.

B. Plaintiffs Demonstrated the Irrationality of Issue 3 at Trial

The District Court also properly found that Issue 3 is not rationally related to any 

conceivable legitimate objective. Equality II at 59. Most important, the court found that 

even where appellants identified arguably legitimate objectives, such as the preservation 

of governmental resources, there was no relationship between the objective articulated and 

the exclusion o f lesbians, gay men, and bisexuals effected by Issue 3. Id. This holding was 

clearly correct for, as the Supreme Court has recognized, a desire to conserve resources 

generally does not explain the decision to conserve resources at the expense o f a particular 

group:

Of course, a concern for the preservation of resources standing alone can hardly 
justify the classification used in allocating those resources. Graham v. 
Richardson, 403 U.S. 365, 374-75 (1971). The State must do more than justify 
its classification with a concise expression of an intention to discriminate. 
Examining Board v. Flores de Otero, 426 U.S. 572, 605 (1976).

40



Pfyler, 457 U.S. at 227.

The District Court also made explicit factual findings that, as a practical matter, Issue 3 

would not serve appellants’ articulated objectives. See, e.g., Equality II  at 19. Such factual 

findings are an appropriate part of rational basis review. See Moreno, 413 U.S. at 537 (concluding 

that "in practical effect, the challenged classification [exclusion of households with unrelated 

members from the federal Food Stamp program] simply does not operate so as rationally to 

further the prevention of fraud").

Finally, although the vague language of Issue 3 raises many unanswered questions about 

its coverage, the measure’s potential effects serve to emphasize its irrationality. The City’s 

protestations to the contrary notwithstanding, Issue 3 applies on its face only to "homosexual, 

lesbian, [and] bisexual orientation, status, conduct [and] relationship," not to sexual orientation 

discrimination generally. Thus, Issue 3 appears to leave Cincinnati’s heterosexual population 

protected from discrimination based on that aspect of their identity. A hypothetical example 

illustrates the profound implications of such a provision. Imagine, for instance, a city with an 

ordinance that enhances the criminal penalty for assault when the assailant is motivated by the

sexual orientation of his or her victim. See Wisconsin v. Mitchell, 508 U .S .___, 124 L.Ed.2d 436

(1993) (upholding penalty enhancement based on racial animus). Next imagine that the City 

adopts -- by referendum or otherwise — a charter amendment identical in language to Issue 3. 

Finally, imagine a subsequent fist fight between a gay man and a heterosexual man, each 

motivated by the other’s sexual orientation. Because the Issue 3 Amendment applies on its face 

only to laws benefiting gays, lesbians, and bisexuals, the enhancement would increase the gay 

man’s sentence but be invalid as to the heterosexual man. If convicted, the two men would 

receive different sentences for the same crime solely because of their different sexual orientations.

41



If taken to its logical conclusion, Issue 3 might also be construed to prohibit the City 

Council from responding to an outbreak of violent physical attacks on gay men, lesbians, or 

bisexuals through the creation or funding of a bias-crime task force or other group-specific policy, 

as the Council might reasonably respond to a rash of cross-burnings at African-American 

homes.24 Although Issue 3 does not purport to inhibit the enforcement of group-neutral civil 

and criminal laws such as assault or trespass, it could be read to prohibit on its face any specific 

efforts to protect members of the targeted groups from group-specific persecution.

Issue 3 also appears to extend beyond efforts to address discrimination and to bar the 

government from addressing any need that is specific to gay, lesbian or bisexual citizens. For 

example, Issue 3’s broad language might be read to prohibit the City and its agencies from 

providing health or other human services in a way that is geared toward the particular needs of 

members of these groups.

These hypothetical examples serve to highlight the invidious and illogical nature of the 

Issue 3 Amendment. But this Court need not embrace such extreme (though plausible) 

interpretations of Issue 3 in order to conclude that the measure is unconstitutionally irrational. 

Because the central purpose of Issue 3 is to harm lesbians, gay men, and bisexuals, and because 

it does not advance any legitimate governmental purpose, the measure violates the Equal 

Protection Clause under any level of judicial scrutiny.

24 Notably, neither action would constitute affirmative action or afford "special rights" to 
any group; it would simply represent government's obligation to respond to the needs of its 
citizens, including victims of group-based persecution.

42



CONCLUSION

For all the reasons set forth herein, amici respectfully urge this Court to affirm the

judgment below.

Respectfully submitted,

Elaine RfTones 
Director-Counsel

Theodore M. Shaw 
Alice L. Brown 
Alan Jenkins
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Counsel for Amici Curiae

43



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing BRIEF OF AMICI CURIAE IN SUPPORT 
OF APPELLEES, have been served by depositing same with Federal Express, postage 
prepaid, on this 5th of December, 1994, addressed to the following:

John J. Fossett 
1885 Dixie Highway,
Suite 140
Fort Wright, Kentucky 41011 
Attorney for Intervenors-Appellants

Alphonse Gerhardstein 
Laufman, Rauh & Gerhardstein 
Enquirer Building, Suite 1409 
617 Vine Street 
Cincinnati, Ohio 45202 
Attorney for Plaintiffs-Appellees

Fay D. D upuis, City Solicitor
Karl P. Kadon , III
Mark S. Yurick
Room 214, City Hall
Cincinnati, Ohio 45202
Attorney for Defendants-Appellants

Patricia M. Logue 
Midwest Regional Office 
Lambda Legal D efense and 
Education Fund , Inc.

17 E. Monroe Suite 212 
Chicago, Illinois 60603 
Attorney for Plaintiffs-Appellees

Scott T. Greenwood 
The American Civil Liberties Union 
of Ohio Foundation, Inc.

2301 Carew Tower 
441 Vine Street 
Cincinnati, Ohio 45202 
Attorney for Plaintiffs-Appellees

Suzanne B. Goldberg
Lambda Legal D efense and Education
Fund , Inc.
666 Broadway, 12th Floor 
New York, New York 10012 
Attorney for Plaintiffs-Appellees

ALAN JENKINS