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GAY PEOPLE'S CHRONICLE JULY 8, 1994
Issue 3 compared to 1839 Ohio law limiting rights of freed slaves
Continued from page 1
observers believe it is the most likely to play that role.
Even federal Judge Arthur Spiegel who heard the Issue 3 case acknowledged as much, when ruling on a question of whether to allow certain evidence into this week's proceedings.
"This case will be reviewed by the court of appeals and the Supreme Court," said Spiegel, "and I want to make sure the record will be complete. I don't want this case sent back for further evidence on any other issues."
What that record included in its first three days was often reminiscent of the evidence introduced in Colorado-but with notable exceptions. For instance, there has been no prolonged discussion here about the possible genetic origins for sexual orientation. In
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Also absent from the Issue 3 trial was the prolonged debate in Colorado over what various ancient Greek philosophers thought about the morality of homosexuality.
We got dragged into that one before, said
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Goldberg, referring to the decision of Colorado's attorneys to examine witnesses on that question in the Amendment 2 trial last October.
The Cincinnati trial, she noted, put more emphasis on the First Amendment rights of gays to freedom of expression. That's because Judge Spiegel suggested, during a preliminary injunction hearing, that he saw the merits of that argument. And, for the same reason, it's keeping a focus on the qualifications of sexual orientation as a suspect classification—an important argument that gays failed to win in Colorado.
The legal term suspect classification is derived from the idea that courts are suspicious that laws which put restrictions on people based on certain classificationssuch as race and religion are motivated by bias. When governments create laws which treat certain people differently, courts require that the governments identify a compelling reasons for doing so. Currently, governments which pass laws that treat gays differently need only demonstrate that they have a simple, rational reason for doing so. But if the courts should decide that laws which single out people based on sexual orientation are also likely motivated by bias, they could force governments to demonstrate much stronger justifications for treating gays differently.
Because courts have already agreed that race is a suspect classification, both the Colorado and Cincinnati cases have spent a large amount of testimony in examining the differences and similarities between race and sexual orientation and between discrimination against blacks and that against gays. Of the five witnesses which the pro-gay attorneys brought to the witness stand in Cincinnati, two were African Americans and experts in civil rights history and law. One, John Burlew, an attorney and sevenyear veteran of the Ohio civil rights commission, testified that, contrary to popular belief, a person's race is not always visible. Some blacks, he said, can pass as white, in a very similar way as many gay people pass as straight.
Michael Carvin, a former Reagan administration attorney working for the anti-gay group which spearheaded Issue 3, tried to illustrate how discrimination against gays and blacks is different.
"Have gays ever been forced to go to segregated schools?" he asked Burlew. "No."
"Have gays ever been prevented from voting?" asked Carvin.
"No", replied Burlew, but, he added, gays, like blacks, have been bashed and killed and murdered; they have been discriminated against by the military. The discrimination against both groups, he said, is different, but it's just as hideous.
Jerome Culp, a professor of law at Duke University and a witness who testified at the Colorado trial, too, compared Issue 3 against gays to a resolution passed by the Ohio legislature in the 1830s. That resolution, he noted, was passed in hostile response to the increasing numbers of freed slaves who were escaping the slave states to Ohio. The 1839 resolution declared that freed slaves would have no constitutional right to present petitions to the state general assembly for any reason whatsoever.
By comparison, noted Culp, Issue 3 declared that no entity of the city government could address concerns related to homosexual, lesbian, or bisexual issues. Issue 3 is very similar to the 1839 resolution, said Culp, to limit the ability of gays to participate in the political process.
Culp also discussed how negative stereotypes developed against blacks are also commonly deployed against gays including the assertion that blacks had uncontrollable sex drives, that they were disease-ridden, and that, in pushing for civil rights laws, blacks were seeking special rights.
Carvin, the attorneys for the initiative promoters--which called their group the Equal Rights/Not Special Rights organization tried this week to compare gays to other groups of people-notably child molesters, alcoholics, and Communists.
Carvin, by the way, is best known recently for defending Republican political consultant Ed Rollins against his own boast
that the campaign of Christine Todd Whitman for governor of New Jersey paid African American ministers and Democratic campaign workers to discourage black voter turnout to assist in her victory. In Cincinnati, Carvin tried to get Culp to agree that Issue 3 would be perfectly acceptable if it had substituted the words child molesters for the words referring to gays and bisexuals. Since most people find child molestation morally objectionable, said carvin, no one would argue that an initiative, like Issue 3, targeting child molesters would be unfair or illegal. So, if voters can object to child molesters on moral grounds, why can't they object to homosexuals in the same way?
But Culp refused to be drawn into Carvin's hypothetical, calling it a silly discussion. And later, the lead attorney for the pro-gay side, Alphonse Gerhardstein, asked Culp questions to note a significant distinction between gays and people who molest children.
"Aren't people who are child molesters guilty of breaking the law?" asked Gerhardstein.
"Yes," said Culp.
"And is there any law against being gay, lesbian, or bisexual?" asked Gerhardstein. "No."
The remaining two witnesses for the progay attorneys included Hunter College political science professor Kenneth Sherrill and Equal Rights/Not Special Rights coordinator Mark McNeil.
Sherrill was a witness in Colorado, too, and, as he did there, he tried in the Issue 3 trial to demonstrate that gay people as a group are politically powerless and thoroughly disliked by society at large. Those arguments are made to help establish why gays need protection by anti-discrimination laws, such as the Cincinnati human rights ordinance which Issue 3 seeks to undo. Here, again, comparisons came into play. Carvin, for the Equal Rights/Not Special Rights group, noted that people who are racists are a politically powerless group, but we don't protect them [with anti-discrimination laws], he said, because the majority of people reject the political agenda of racists for good reasons. The same reasons, he proposed, would apply to gays.
Gay legal observers believe Judge Spiegel will rule against Issue 3 again, based on his own liberal background and the strong opinion he issued in granting an injunction against the measure taking effect last November. Spiegel, a Carter appointee, was the first person to head Cincinnati's Human Relations Commission. One hour after Issue 3 took effect last November, he issued his injunction noting that while voters have the power to pass laws, people can be wrong if they violate a constitutional right.
Spiegel's role in this trial has been a very active one, asking numerous questions of the witnesses and of the attorneys. At one point Wednesday, for instance, Spiegel remarked that he was troubled by one witness's contention that Issue 3 should allow people to discriminate against people who merely state that they are gay.
Sexual orientation is a state of mind, said Spiegel. Doesn't the constitution provide freedom for people to think what we want? A few minutes later, he challenged the suggestion by the same witness, Amherst College professor Hadley Arkes, that sexual orientation is a choice. Spiegel noted that a sworn statement submitted by an expert witness provided respectable evidence that a person's sexual orientation is set at a very early age.
"A person's worth," said Spiegel, “is not based on an accident of birth."
Once this case leaves Spiegel's court, however, gay legal activists expect an appeal to the Sixth Circuit U.S. Court of Appeals, which is seen as a much more difficult and conservative audience.
"For right now," said Goldberg, "this is our second shot at proving the unconstitutionality of these anti-gay initiatives. It's an opportunity for us to demonstrate that these initiatives are grounded in prejudice and to persuade a federal court that these measures give public effect to private prejudice. Once this is appealed, it will affect more states, so we've got to make a very strong case."