After teetering on the brink of death for nearly 18 months, Cincinnati's controversial anti-gay-rights charter amendment was rescued Thursday by the U.S. Court of Appeals for the 6th Circuit.
In a unamimous decision that some say is contrary to a 1996 Supreme Court ruling in a similar case, the appeals court held that the voter-approved amendment does not discriminate by denying legal protection to gays and lesbians in Cincinnati.
The court's ruling was immediately hailed by supporters, who say it will do much more than protect Cincinnati's right to deny gay rights to its residents.
"It is important from a legal perspective," said Michael Carvin, a Washington attorney who represents Equal Rights, Not Special Rights, the organization that was successful in persuading Cincinnati voters to pass the charter amendment. "It frees up local communities to pass initiatives like (Cincinnati's)."
Issue 3 opponents say the decision was narrow-minded and will allow voters to strip certain groups of citizens of their Constitutional rights.
The decision, which leaves Cincinnati as the only city in the country with an anti-gay initiative, is the latest twist in the drama that began almost five years ago, when city council banned discrimination based on sexual orientation.
Voters subsequently approved Issue 3, which prohibits the city from extending protection to gays and lesbians. The measure was immediately challenged - costing the city thousands of dollars in lost convention business - and has been snaking through the courts ever since.
Thursday's decision - it marks the second time the 6th Circuit has upheld Issue 3 - will not end the litigation: opponents of Issue 3 say they will appeal, either to the Supreme Court or to the full panel of judges in the 6th Circuit.
"We won this once in the Supreme Court, and we'll go back again if we have to," said Scott Greenwood, a Cincinnati attorney for the American Civil Liberties Union, one of several groups challenging Issue 3.
Council repealed the sexual orientation clause of the Human Rights Ordinance in 1995, but the battle rages on to protect other cities and to guarantee that Cincinnati's council could - one day - reintroduce the measure, Mr. Greenwood said.
The key argument for appeal is that the panel's decision conflicts with the U.S. Supreme Court's decision last year to strike down a Colorado law that banned protection for gays and lesbians. The high court held that Colorado's amendment violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
After its ruling in the Colorado case, the Supreme Court sent the Cincinnati case back to the 6th Circuit, which affirmed Issue 3 in 1995, for further study. Thursday's decision was the second time Judges Robert Krupansky, Cornelia Kennedy and Alan Norris considered - and affirmed - the charter amendment.
"The court went to great pains not to follow (the Colorado case)," Mr. Greenwood said. "The 6th Circuit got it wrong again."
When it was released in May 1996, the ruling in the Colorado case was widely regarded as the fatal blow for Issue 3 because the two laws were considered nearly identical.
But in its opinion written by Judge Krupansky, the 6th Circuit said there were two key differences between the two initiatives:
The Colorado initiative was so broadly worded that it stripped gays and lesbians of protection based on more than sexual orientation and "divest(ed) homosexuals of all state law government protection available to all other citizens.
- In Colorado, the measure applied throughout the state, forbidding cities from extending protection to gays, even if the majority of the residents were in favor of such legislation.
- In Cincinnati, where 62 percent of the voters approved of Issue 3, only local residents were subject to the amendment.
"Whereas Colorado Amendment 2 ominously threatened to reduce an entire segment of the state's population to the status of virtual non-citizen . . ., the Cincinnati Charter Amendment had no such sweeping and conscience-shocking effect," the 6th Circuit found.
Chai Feldblum, an associate professor of law at the Georgetown University Law Center, said she was not impressed with the court's reasoning.
"This is a court that is looking at the trees and is completely missing the forest," said Ms. Feldblum, who teaches courses on sexual orientation and the law, legislation and civil rights. "It focuses on details that may seem important and misses the principal point of the Supreme Court's decision, (which is) that government may not take action against a group solely because other people dislike the group."
Deputy Cincinnati solicitor Karl Kadon praised the court's decision for letting cities operate without interference.
"I think the court has spent some time trying to restore authority and power to local governments," he said.