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Federal Appeals Court Reinstates Voter-Approved Charter Amendment

May 12, 1995

CINCINNATI (AP) _ A federal appeals court Friday reinstated a voter-approved City Charter amendment that denied gays special protection against discrimination.

The 6th U.S. Circuit Court of Appeals ruled that sexual orientation is not ``an identifiable class″ worthy of inclusion in the city’s human rights ordinance alongside gender, religion, race and age.

U.S. District Judge S. Arthur Spiegel misinterpreted legal precedent when he ruled in August that the 1993 amendment on gays was unconstitutional, the appeals court said in reversing his decision.

Spiegel had ruled that the amendment was vague and violated the free-speech and equal-protection rights of gays.

The appeals court said ``the reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives and thoughts.″

Washington lawyer Michael Carvin, who represented the city and a citizens’ group that pushed for the amendment, called the ruling ``a victory across the board.″

``The court rejected the notion that homosexuals are entitled to special protections as a quasi-class,″ Carvin said. ``The plaintiffs were arguing that you have to include homosexual rights in civil rights laws. ... Those were very extraordinary notions.″

Suzanne B. Goldberg, a New York lawyer for the gay rights organization Lambda Legal Defense and Education Fund, was stunned.

``The ruling contains a shocking disregard for basic constitutional guarantees,″ she said. ``It sets up a second-class citizenship for gay people and leaves all Americans vulnerable to being similarly excluded from the political process.″

Mayor Roxanne Qualls, who opposed the effort to restrict gay rights, denounced the appeals court ruling.

``The ruling ... is a disappointment to all who support equal rights and equal treatment for all Cincinnati citizens,″ she said. ``Despite the court ruling, I hope all citizens of Cincinnati will continue to practice tolerance and respect for all members of our city.″

Goldberg said she will appeal to the U.S. Supreme Court, possibly in combination with an appeal from Colorado after the state Supreme Court there struck down a voter-approved anti-gay rights amendment.

The Cincinnati case stems from an equal employment law the City Council approved in 1991. The law included sexual orientation as an anti-discrimination classification. In 1992, the council approved the human rights ordinance and included similar protections for gays for public housing and public accommodations.

In November 1993, voters approved the charter amendment prohibiting the council from enacting any measure that granted protections based on sexual orientation.

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