No. 95-239 IN THE Supreme Court of the United States OCTOBER TERM, 1995 EQUALITY FOUNDATION OF GREATER CINCINNATI, INC., RICHARD BUCHANAN, CHAD BUSH, EDWIN GREENE, RITA MATHIS, ROGER ASTERINO, AND H.O.M.E., INC., Petitioners, v. THE CITY OF CINCINNATI, EQUAL RIGHTS NOT SPECIAL RIGHTS, MARK MILLER, THOMAS E. BRINKMAN, JR., AND ALBERT MOORE, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR A WRIT OF CERTIORARI PATRICIA M. LOGUE ALPHONSE A. GERHARDSTEIN SUZANNE B. GOLDBERG Counsel of Record Lambda Legal Defense and 1409 Enquirer Building Education Fund, Inc. 617 Vine Street 17 East Monroe, Suite 212 Cincinnati, Ohio 45202 Chicago, Illinois 60603 (513) 621-9100 (312) 759-8110 RICHARD A. CORDRAY SCOTT T. GREENWOOD 4900 Grove City Road Cooperating Counsel for the Grove City, Ohio 43123 American Civil Liberties Union (614) 539-1661 of Ohio Foundation, Inc. 441 Vine Street, Suite 2301 Cincinnati, Ohio 45202 (513) 684-0101 [Internet stgrnwd@iac.net] Attorneys for Petitioners QUESTIONS PRESENTED FOR REVIEW 1. Whether an initiated city charter amendment that forbids the city and its boards and commissions from adopting or enforcing any ordinance, regulation, rule or policy that would provide protected status to lesbians, gay men, and bisexuals warrants heightened scrutiny under the Equal Protection Clause because it imposes a distinct and severe burden on their fundamental right to participate in the political process on an equal basis with other citizens? 2. Whether such a city charter amendment violates the Equal Protection Clause even under the Court's standard of rational basis review where it gives effect to private prejudice and does not rationally further any legitimate government interest? TABLE OF CONTENTS PAGE QUESTIONS PRESENTED FOR REVIEW i TABLE OF AUTHORITIES iv OPINIONS BELOW 1 JURISDICTION 2 CONSTITUTIONAL AND CITY CHARTER PROVISIONS INVOLVED 2 PRELIMINARY STATEMENT 3 STATEMENT OF THE CASE 3 1. The Scope and Effect of Issue 3 3 2. The History of Issue 3 and Private Bias 6 3. The Proceedings in the District Court 8 4. The Sixth Circuit's Ruling 10 REASONS FOR GRANTING THE WRIT 11 I. THE RULING BELOW CONFLICTS WITH THE DECISION UNDER REVIEW IN ROMER v. EVANS AND WITH THIS COURT'S PRECEDENTS THAT SAFEGUARD THE FUNDAMENTAL RIGHT TO PARTICIPATE IN THE POLITICAL PROCESS ON AN EQUAL BASIS. 13 A. The Ruling Below Directly Conflicts with the Decision Under Review in the Romer Case. 13 B. The Ruling Below Conflicts with the Court's Precedents Including Reynolds v. Sims and Hunter v. Erickson by Adopting a Dangerously Crabbed Interpretation of Their Holdings. 14 II. THE RULING BELOW MISAPPLIED RATIONAL BASIS REVIEW TO UPHOLD A BLATANTLY DISCRIMINATORY AND EXCLUSIONARY MEASURE THAT DOES NOT RATIONALLY FURTHER ANY LEGITIMATE GOVERNMENT INTEREST. 19 A. The Ruling Below Disregards the Court's Decisions Which Hold that Giving Effect to Private Prejudice Is Not a Legitimate Government Interest. 20 B. The Court of Appeals Ignored the Classification Drawn by Issue 3 and Its Practical Effect in Accepting Highly Generalized Justifications for the Measure. 22 CONCLUSION 28 TABLE OF AUTHORITIES CASES Anderson v. Celebrezze, 460 U.S. 780 (1983) 15 Avery v. Midland County, 390 U.S. 474 (1968) 15, 16 Board of Estimate v. Morris, 489 U.S. 688 (1989) 15 Bowers v. Hardwick, 478 U.S. 186 (1986) 25, 26 Carrington v. Rash, 380 U.S. 89 (1965) 21 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) passim Davis v. Bandemer, 478 U.S. 109 (1986) 19 Dunn v. Blumstein, 405 U.S. 330 (1972) 15 Evans v. Romer, 882 P.2d 1335 (Colo. 1994), cert. granted, 115 S. Ct. 1092 (1995) passim FCC v. Beach Communications, Inc., ___ U.S. ___, 113 S. Ct. 2096 (1993) 20, 24 Gomillion v. Lightfoot, 362 U.S. 339 (1960) 15 Gordon v. Lance, 403 U.S. 1 (1971) 18 Gray v. Sanders, 372 U.S. 368 (1963) 12 Heller v. Doe, ___ U.S. ___, 113 S. Ct. 2637 (1993) 24 Hunter v. Erickson, 393 U.S. 385 (1969) passim Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) 15 J.E.B. v. Alabama, __ U.S. __, 114 S. Ct. 1419 (1994) 18 James v. Valtierra, 402 U.S. 137 (1971) 17 Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969) 15 Palmore v. Sidoti, 466 U.S. 429 (1984) 21 Reynolds v. Sims, 377 U.S. 533 (1964) 13-16 St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987) 18 United States Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973) passim United States Railroad Retirement Bd. v. Fritz, 49 U.S. 166 (1980) 24 United States v. Carolene Products, 304 U.S. 144 (1938) 14, 15 Vance v. Bradley, 440 U.S. 93 (1979) 20 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) 18 Whitcomb v. Chavis, 403 U.S. 124 (1971) 15 Zobel v. Williams, 457 U.S. 55 (1982) 24 STATUTES AND REGULATIONS 28 U.S.C. § 1254(1) 2 42 U.S.C. § 1981 18 U.S. Const. amend. XIV 2, 19 OTHER AUTHORITIES Adams, Pre-Election Anti-Gay Ballot Initiative Challenges: Issues of Electoral Fairness, Majoritarian Tyranny, and Direct Democracy, 55 Ohio St. L.J. 583 (1994) 11 Anti-Gay Rights Drive Spreads, Denver Post, Oct. 12, 1994, at 1 11 JOHN HART ELY, DEMOCRACY AND DISTRUST (1980) 15 Marcossen, The Special Rights Canard in the Debate over Lesbian and Gay Civil Rights, 9 Notre Dame J.L., Ethics & Pub. Pol'y 137 (1995) 12 Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 Harv. C.R.-C.L. L. Rev. 283 (1994) 12 No. 95-239 IN THE Supreme Court of the United States OCTOBER TERM, 1995 EQUALITY FOUNDATION OF GREATER CINCINNATI, INC., RICHARD BUCHANAN, CHAD BUSH, EDWIN GREENE, RITA MATHIS, ROGER ASTERINO, AND H.O.M.E., INC., Petitioners, v. THE CITY OF CINCINNATI, EQUAL RIGHTS NOT SPECIAL RIGHTS, MARK MILLER, THOMAS E. BRINKMAN, JR., AND ALBERT MOORE, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR A WRIT OF CERTIORARI Petitioners respectfully petition for a writ of certiorari to review the judgment entered by the United States Court of Appeals for the Sixth Circuit in this proceeding. OPINIONS BELOW The opinion of the Court of Appeals for the Sixth Circuit is reported at 54 F.3d 261 (6th Cir. 1995), and is reprinted in the Appendix ("App.") to this petition at 2a-22a. The opinions of the District Court for the Southern District of Ohio are reported at 860 F. Supp. 417 (S.D. Ohio 1994) (granting permanent injunction), see App. 23a-88a, and at 838 F. Supp. 1235 (S.D. Ohio 1993) (granting preliminary injunction), see App. 89a- 105a. The Order of the Court of Appeals granting a stay of its mandate through August 10, 1995, was issued on June 14, 1995, and is reprinted in the Appendix at 1a. JURISDICTION The Court of Appeals for the Sixth Circuit entered judgment on May 12, 1995. See App. 2a. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL AND CITY CHARTER PROVISIONS INVOLVED The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides in pertinent part: No State shall . . . deny to any person within its jurisdiction the equal protection of the laws. On November 2, 1993, the Cincinnati voters passed Amendment XII to the City Charter of the City of Cincinnati. This provision, which was designated on the ballot and is generally known as Issue 3, reads as follows: NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment. This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect. PRELIMINARY STATEMENT This equal protection case merits the Court's review because it presents the same issue as another case currently before the Court, Romer v. Evans, No. 94-1039, as to whether an amendment to a governing charter, which denies lesbians, gay men and bisexuals equal access to government, burdens their fundamental right to participate in the political process. The parties in Romer also have briefed the rational basis arguments fully but the courts below did not rule on the issue. In this case, the District Court developed a full record on the rational basis issue and held, based on the record, that the charter amendment was unconstitutional. Ignoring the District Court's findings and the classification actually drawn by Issue 3, the Court of Appeals reversed and upheld the measure. It is therefore also important that certiorari be granted to give the Court the opportunity to consider additional argument on the issue of rational basis with the benefit of a full record and the rulings below. If the Court upholds the Colorado Supreme Court's ruling in Romer on the fundamental rights issue, the rational basis question need not be reached, and this case could be remanded in light of that decision. If, however, the Court rejects the fundamental rights analysis adopted by the Colorado Supreme Court in Romer, this case will assist significantly in resolution of the rational basis question. STATEMENT OF THE CASE 1. The Scope and Effect of Issue 3 In 1993, a proposed amendment to the municipal charter of the City of Cincinnati was placed on the ballot as Issue 3, largely by the efforts of respondent Equal Rights Not Special Rights ("ERNSR") through its predecessor Take Back Cincinnati. In extraordinarily sweeping language, Issue 3 proposed to bar the City from undertaking to "enact, adopt, enforce or administer" any present or future "ordinance, regulation, rule or policy" within its sights. Those sights were focused solely on lesbians, gay men, and bisexuals. Any action by the City that could be construed to give "protected" or "preferential" treatment to any person on the basis of "homosexual, lesbian or bisexual orientation, status, conduct or relationship," whether now or in the future, would be barred by its terms. The scope and design of this measure was unprecedented in Cincinnati's history. One expert witness on civil rights matters who testified at the trial in this case aptly described it as the "nuclear bomb" of charter amendments. R. 18:172.1 Prior to the Issue 3 ballot measure, the City had enacted a Human Rights Ordinance that protected all persons against discrimination on the basis of sexual orientation (as well as many other characteristics) in private employment, housing, and public accommodations. The City Council passed this measure in 1992 after documenting extensive evidence of discrimination based on sexual orientation in these areas and in response to its findings about the "profound effects of such discrimination." Jt. App. 670. In addition, the City Council had previously enacted an Equal Employment Opportunity Ordinance that protected all persons against discrimination on the basis of sexual orientation in public employment. Jt. App. 668. Issue 3 was designed, in part, to neutralize the effect of these laws, but only insofar as they were applicable to lesbians, gay men, and bisexuals. By contrast, the proposed charter amendment would have no effect on existing and future protections conferred by the City on heterosexuals.2 Issue 3 also would explicitly prevent the future inclusion of lesbians, gay men, and bisexuals within any anti-discrimination law or policy, and thus would preclude any municipal response to many documented problems in this regard. Examples of anti- gay discrimination and harassment by private actors and public officials, including judges and police officers, abound in the trial record, which includes the legislative record compiled by the City Council prior to passage of the Human Rights Ordinance.3 Normally, such citizen concerns are corrected by approaching city officials or forming political coalitions to secure passage of new legislation. R. 89:65. But future recurrences of discriminatory acts could not be remedied by City officials under Issue 3. Existing City programs also were imperiled by the broad sweep of the proposed measure. These included an HIV- prevention program directed exclusively at gay men that, while undeniably of benefit to the entire public, might be construed to give "preferential treatment" to gay people. A Republican former City Council member testified that Issue 3 would effectively cut lesbians, gay men, and bisexuals out of City politics and would close off avenues of dispute resolution that are readily available to all other constituents. R. 29:59-62. As a result, the clear effect of Issue 3 would be to deny only to members of this targeted group access to the legislative body on an equal basis with all other citizens. 2. The History of Issue 3 and Private Bias Issue 3 was proposed as an open and obvious effort to reduce the political power and influence of gay people within the City of Cincinnati. Phil Burress, one of the primary instigators of Issue 3, testified that the Human Rights Ordinance "was only 10 percent of the issue. Ninety percent of the problem was the fact that the homosexuals . . . were going to start pushing their agenda through their elected officials." Jt. Ex. X at 43. He and Chris Finney, who drafted the actual text of Issue 3, both freely admitted that the amendment was designed as a direct response to the perception of growing gay political power in Cincinnati. Jt. App. 457. The goal of neutralizing the political power of lesbians, gay men and bisexuals was accomplished, as the District Court found, by means of ERNSR campaign materials and advertisements that were "grossly inaccurate" and "riddled with unreliable data, irrational misconceptions and insupportable misrepresentations about homosexuals." App. 40a, 74a. The "main educational tool" of ERNSR was the video "Gay Rights/Special Rights," which provides a vivid, fear-inducing, and inaccurate portrayal of gay people. Pltf. Ex. 26; Jt. App. 441-46; R. 89:485-86. ERNSR also circulated pamphlets that perversely and provocatively distorted facts and data about gay people.4 In particular, ERNSR prominently highlighted false stereotypes of gay men as pedophiles, App. 28a, including depictions of a fabricated "Real Homosexual Agenda," which included the statement that "they want the children." Pltf. Exs. 22; 26; 31; 39. Gay people also were described in the most "inflammatory" terms and were portrayed, for example, as habitually engaging in bizarre sexual practices, including some "which allegedly involved the use of rodents." App. 60a n.16. Expert witnesses in political history and on civil rights issues pointed out that the inaccurate sexual stereotyping of lesbians, gay men and bisexuals during the Issue 3 campaign has direct historical parallels in arguments that have been used to malign African-Americans, Jews, and Mexican-Americans. Jt. App. 442; 739-40. ERNSR also distributed "patently misleading" materials which mischaracterized Issue 3 and the Human Rights Ordinance to sway potential voters. App. 40a-41a n.7. In particular, the Human Rights Ordinance, whose wording is precisely neutral on the issue of sexual orientation, was consistently referred to as providing "special rights for homosexuals." Id. See, e.g., Pltf. Exs. 34; 39. Issue 3 also was consistently billed as a mere repealer of the Human Rights Ordinance, rather than as a superlegislative measure that disables the political participation rights of lesbians, gay men and bisexuals now and in the future. App. 40a-41a n.7; Pltf. Ex. 34. At trial, civil rights experts reviewed the above materials and concluded that Issue 3 was sold to voters through naked appeals to prejudice and their "base" instincts. See, e.g., Jt. App. 394. Thus, as a ballot proposal, Issue 3 was turned into an "up/down" vote on gay people. Jt. App. 400. See also R. 89:4, 521. In the District Court, petitioners presented extensive evidence to counter the malicious stereotypes that pervaded ERNSR's campaign. Detailed psychological and historical testimony, supported by a thorough review of authorities, explained the nature of sexual orientation as a deeply rooted aspect of human identity. The testimony illustrated as well that gay men and lesbians have been subjected to intense discrimination based on their sexual orientation. See, e.g., Jt. App. 322-28J; 644-45; 754-74; 823-94. Respondents offered no evidence to validate the gross factual distortions about lesbians, gay men and bisexuals that were provided to voters during the Issue 3 campaign or to rebut petitioners' expert evidence on the nature of sexual orientation and anti-gay discrimination. App. 33a-34a. 3. The Proceedings in the District Court Issue 3 was adopted by the voters of Cincinnati on November 2, 1993, and this suit was filed almost immediately thereafter. After conducting a day-long evidentiary hearing, the District Court issued a preliminary injunction barring enforcement of Issue 3 on November 16, 1993. See App. 89a- 105a. Shortly before trial, the District Court denied the defendants' motion for summary judgment. Id. at 24a n.1. After five additional days of testimony taken in June of 1994 and upon consideration of a "massive" record, id. at 37a, the District Court permanently enjoined Issue 3 on August 9, 1994. In granting these injunctions against Issue 3, the District Court made extensive findings of fact on many issues of fundamental importance in this case. Assessing Issue 3's effect on the political participation of its targeted class, the court found that Issue 3 foreclosed all ordinary political processes, except for the charter amendment process, for gay people seeking remedies from the City for sexual orientation discrimination and related harms. App. 43a-44a. Comparing the charter amendment process to the wide range of political routes available to all others desiring anti-discrimination protections, it found that "amending the city charter is a far more onerous and resource-consuming task than is lobbying the City Council or city administration for legislation." Id. at 39a-40a, 42a. In addition, on the strength of voluminous and unrebutted expert testimony, the court found that gay citizens constitute "an identifiable group based on their sexual orientation and their shared history of discrimination based on that characteristic." Id. at 39a. Further, to support its determination that Issue 3 gives effect to private prejudice, the court found that the campaign materials used by ERNSR to promote Issue 3 "emphasize[d] the depth and pervasiveness of the inaccurate and unfounded stereotypes about gays, lesbians and bisexuals in our society." Id. at 40a n.7. The District Court then relied upon Hunter v. Erickson, 393 U.S. 385 (1969), and related cases to hold that Issue 3 violates the fundamental right of equal participation in the political process, thereby triggering heightened scrutiny under the Equal Protection Clause. App. 46a-54a. The court recognized that Issue 3 would deny gay people effective access to the legislative and executive branches of the city government on an equal basis with all other citizens, by foreclosing the route through which they would ordinarily seek the protection of the laws against both invidious discrimination and other harms. Instead, the only avenue left to them by Issue 3 would be gaining approval of a majority of voters to amend the municipal charter. Id. at 41a-45a. In addition, the District Court held that Issue 3 enacted private prejudice into law and did not serve any legitimate governmental purpose. App. 68a-76a. The court rejected a morality-based justification put forth for Issue 3 as "a surrogate for the majority's desire to discriminate against an unpopular minority group." Id. at 74a. The court also concluded that other alleged interests asserted by the proponents of Issue 3 could not explain or justify the classification drawn by the measure.5 Id. at 69a-73a. 4. The Sixth Circuit's Ruling The Court of Appeals began by improperly applying the same de novo review to the District Court's factual findings that it applied to the court's legal conclusions, on the ground that "most, if not all, of the lower court's findings in the instant case constituted ultimate facts," "sociological judgments" or findings "designed to support `constitutional facts.'" App. 9a. Having taken this unorthodox approach, the Court of Appeals went on to reverse the District Court in its entirety. In particular, the Court of Appeals held that there is no fundamental right of equal political participation that could be infringed by Issue 3. It mischaracterized this Court's Hunter line of decisions as concerning only racial classifications, content to stop at the observation that Issue 3 "deprived no one of the right to vote, nor did it reduce the relative weight of any person's vote." App. 17a. In another section of its opinion, the court went so far as to suggest that "no law can successfully be drafted that is calculated to burden . . . or to benefit . . . an unidentifiable group of individuals" unless the members of that group can be identified "on sight." App. 13a. Obviously, if this approach were widely adopted it would threaten grossly to distort judicial review of all government actions that discriminate on the basis of characteristics (such as religion, ethnicity, age, and veteran status) that may not be visible to the naked eye. After determining that rational basis review was the appropriate standard, the Court of Appeals gave no consideration whatsoever to the District Court's pivotal determination that Issue 3 gave effect to private prejudice. The court went on to conclude that several rational bases existed to uphold Issue 3. These included the supposed enhancement of "associational liberty" that was judged to flow from Issue 3 insofar as it reauthorized acts of discrimination against gay citizens. App. 20a. The court also opined that Issue 3 would reduce government regulation, "which necessarily may result in some cost savings for the City's taxpayers." Id. On June 14, 1995, the Court of Appeals entered a stay of its judgment. Id. at 1a. REASONS FOR GRANTING THE WRIT Cincinnati is one of a number of localities and states to consider the enactment of a constitutional or charter provision that would prohibit government from taking any action that could be construed as affording protection to its lesbian, gay, and bisexual constituents. Similar measures have been introduced through the initiative process or in legislatures in at least fourteen states across the country thus far, and many more have been suggested for introduction.6 One such measure was enacted as Colorado's Amendment 2, which is currently under review by the Court in Romer v. Evans, No. 94-1039. This case presents many of the same important questions of federal law that are also before the Court in Romer, which now has been fully briefed and awaits oral argument. If the facially discriminatory Issue 3 and Amendment 2 measures were to be upheld, then it is virtually certain that similar measures will be proposed elsewhere, and it is likely that additional measures aimed at limiting the political participation of lesbian, gay, and bisexual citizens -- or other disfavored groups of citizens -- will also be formulated and put forward for adoption. As the evidence in these two cases shows, these anti- democratic measures are typically promoted by fearmongering that exploits popular myths and stereotypes about targeted groups of citizens. They seek to recast appropriately neutral anti-discrimination laws protecting all persons as measures providing "special rights" to a few.7 Nonetheless, it appears to date that these measures, at least when presented in the context of plebiscite campaigns, may well win majority support in a number of jurisdictions. App. 39a; 65a. History would thus repeat itself within the span of one generation. For this is not the first time that efforts have been made through majoritarian processes to jerrybuild a two-tiered system that extends full political access to some citizens and limited access to others. As the civil rights movement gained momentum around the country in the 1960s, opponents of that movement launched a spate of voter initiatives intended to disable governments from ever enacting or enforcing legal protections that were designed to overcome broad historical discrimination on the basis of specified characteristics, such as race, religion, and national origin. These measures appeared poised to sweep the country until they were halted in their tracks by the Court's clear ruling in Hunter v. Erickson, 393 U.S. 385 (1969), that the Equal Protection Clause forbids measures that have the purpose and effect of deliberately excluding a targeted group of citizens from participating in the political process on an equal basis with all other citizens. In this case, as in Romer, the Court's care and wisdom is needed to enforce the fundamental principle of equal justice that lies at the core of this constitutional provision. Only by this means, perhaps, can the United States maintain its stature as a country in which "the concept of `we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications." Gray v. Sanders, 372 U.S. 368, 379-80 (1963). I. THE RULING BELOW CONFLICTS WITH THE DECISION UNDER REVIEW IN ROMER v. EVANS AND WITH THIS COURT'S PRECEDENTS THAT SAFEGUARD THE FUNDAMENTAL RIGHT TO PARTICIPATE IN THE POLITICAL PROCESS ON AN EQUAL BASIS. A principal issue raised in this case is whether this Court's precedents, commencing with Reynolds v. Sims, 377 U.S. 533 (1964) and Hunter v. Erickson, safeguard the fundamental right of all citizens to participate in the political process on an equal basis. See Reynolds, 377 U.S. at 565 ("each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bodies."). The Sixth Circuit held in this case that a majority can enact a superlegislative measure that institutionally disables the political participation rights of members of a defined minority group, as long as it does not strip them of their right to cast a ballot or classify them on the basis of race. App. 16a-17a. The ruling below thus squarely contradicts the Colorado Supreme Court's decision that is currently under review by this Court in the Romer case. See Evans v. Romer, 882 P.2d 1335 (Colo. 1994), cert. granted, 115 S. Ct. 1092 (1995). Moreover, as the Court clearly held in Hunter more than a quarter-century ago, and has since reaffirmed, this narrow conception of the Equal Protection Clause is emphatically not a correct statement of American constitutional law. A. The Ruling Below Directly Conflicts with the Decision Under Review in the Romer Case. The language and the practical effect of Issue 3 are essentially identical to the Colorado measure known as Amendment 2, which is currently before this Court in the Romer case.8 The District Court here, like the Colorado Supreme Court in Romer, held that the measure at issue operates to fence out the targeted class of lesbians, gay men, and bisexuals from the political process by imposing a unique burden on their ability to participate on an equal basis with all other citizens. See App. 41a-54a; Romer, 882 P.2d at 1339, 1340. On this ground, the District Court here, as did the Colorado Supreme Court in Romer, concluded that the measure requires heightened scrutiny and violates the Equal Protection Clause. App. 53a-54a; Romer, 882 P.2d 1335. The Sixth Circuit, in contrast, determined that Issue 3 does not implicate any fundamental rights that have been recognized by this Court. It concluded instead that the cases relied on by the District Court could be applied only to measures that classify on the basis of race or strip people of the right to vote. See App. 16a-17a. The clear conflict between the ruling below and the Colorado Supreme Court's decision in Romer should be addressed and resolved by this Court. B. The Ruling Below Conflicts with the Court's Precedents Including Reynolds v. Sims and Hunter v. Erickson by Adopting a Dangerously Crabbed Interpretation of Their Holdings. The municipal charter amendment at issue in this case would, as the Court of Appeals expressly recognized, "render futile" all efforts by gay people in Cincinnati -- and gay people alone -- to seek legal protection from their city government against discrimination. See App. 17a. It is firmly established, however, that legislation which restricts participation in the political process by any specified group of persons threatens the legitimacy of representative government and implicates the core principles of the Equal Protection Clause. See, e.g., United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938). As the Court indicated in that historic footnote, "more exacting judicial scrutiny" may be in order where a challenged measure "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." Id. The Court's rationale for such heightened scrutiny went well beyond simple constraints upon the right to vote, and included a variety of further constraints, such as "interferences with political organizations" and the "prohibition of peaceable assembly." Id. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST 73-104 (1980). The "political process" rationale for heightened scrutiny first articulated in Carolene Products was developed more fully as the Court began to confront cases in which political participation was structured unequally for different sets of citizens. See, e.g., Reynolds, 377 U.S. 533. The Court's careful protection of the right to vote in those cases was based on far more than a limited commitment to an accessible ballot box. Beginning in Reynolds, the Court has reinforced in a series of cases that the right to vote is important, not in a vacuum, but as a component part of the right to participate meaningfully in our representative democratic process.9 The Court further explicated this rationale with respect to the process of enacting legislation in Hunter v. Erickson, 393 U.S. 385 -- a case that is marked by striking similarities to the legal controversy that surrounds Issue 3. In Hunter, the Court confronted an Akron, Ohio charter amendment that barred the Akron City Council from passing any legislation that would protect individuals against housing discrimination on the basis of race, religion, or national origin, without obtaining the express approval of a majority of the City's voters. The Court invalidated the measure under the Equal Protection Clause.10 While recognizing that the City could require plebiscites as a general practice, the Court made it clear that the City could "no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size." Hunter, 393 U.S. at 393. It is especially significant, in light of the attempt by the court below to brush off Hunter as a case solely about racial classifications, that the two cases relied on for this holding by the Court in Hunter did not concern racial laws. Instead, they were decisions explaining that the right to vote means more than just the ability to cast a vote, and instead guarantees the right to cast an effective vote by ensuring that each vote is given essentially the same weight as that cast by every other citizen. See Reynolds, 377 U.S. 533; Avery v. Midland County, 390 U.S. 474. The Court's analysis was consistent with the amicus brief that Solicitor General Griswold had filed on behalf of the United States Government, which urged that the Akron measure be invalidated. The Solicitor General's brief argued simply that the Equal Protection Clause precludes a state or local government from using interferences with the legislative stage of the political process to achieve what the Clause prohibits them from achieving by interfering with the voting and representation stages of the political process. See Brief for the United States as Amicus Curiae, Hunter v. Erickson, 393 U.S. 385 (1969), at 15 ("The same principles which forbid these and other forms of imbalance in the electoral processes apply, a fortiori, when what is at stake is the end product to which these are preliminary and preparatory steps -- i.e., the very enactment of legislation.").11 Justice Harlan's separate concurrence in Hunter explained the constitutional principles involved in further detail. He observed that most laws that structure internal government processes "are designed with the aim of providing a just framework within which the diverse political groups in our society may fairly compete," and where such laws are so "grounded in neutral principle," they are consistent with the Equal Protection Clause. Hunter, 393 U.S. at 393, 395 (Harlan, J., concurring). Yet where such measures do not attempt "to allocate governmental power on the basis of any general principle," but instead are designed to "make it more difficult" for identifiable minority groups "to achieve legislation that is in their interest," then heightened scrutiny is in order under the Equal Protection Clause. Id. at 395. In subsequent cases, the Court has consistently construed its decision in Hunter as having relied on a political participation rationale, rather than as turning simply on the existence of a racial classification. See, e.g., James v. Valtierra, 402 U.S. 137, 141-42 (1971) (considering first a suspect class theory and then a distinct political participation theory in assessing an equal protection challenge to a constitutional amendment that required voter approval on specific matters); Gordon v. Lance, 403 U.S. 1, 5 (1971) (addressing a constitutional amendment that required supermajority support from voters on specific matters, which the Court upheld, in contrast to Hunter, because it could "discern no independently identifiable group" that would be "fenced out" of the normal political process); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 470 (1982) (proper inquiry is whether laws structure political institutions according to "`neutral principles'" that place the same burdens on "every group in the community") (quoting Hunter, 393 U.S. at 394 (Harlan, J., concurring)). Cf. J.E.B. v. Alabama, __ U.S. __, 114 S. Ct. 1419, 1434 (1994) (Kennedy, J., concurring) ("individual's right to participate in the political process" is protected by the Equal Protection Clause, does not depend on existence of suspect class and goes beyond the right to vote to include right to serve on a jury). The Sixth Circuit's ruling departed dramatically from the Court's guidance in this area. In two sentences, the Court of Appeals reinterpreted Hunter and Seattle School District as cases that were limited to consideration of suspect racial classifications. See App. 16a-17a. In a third sentence, it dismissed Gordon as being concerned only with the right to vote. See id. at 17a. Such inhospitable treatment of this Court's controlling precedents stands in direct conflict with the more deferential reading given them by the District Court in this case and the Colorado Supreme Court in Romer.12 The Court of Appeals' analysis also opens the door to a dangerous narrowing of the clear principles that the Court laid down in Hunter, which headed off an earlier round of structural manipulations of the political process that were deliberately designed to allow a majority of the voters to target and oppress a minority of citizens. The Court should take this opportunity to clarify the scope of its holding in Hunter, and to emphasize that laws which restructure the political process for members of one targeted group of citizens, by "consistently degrad[ing] [their] influence on the political process as a whole," are constitutionally infirm. Davis v. Bandemer, 478 U.S. 109, 132 (1986). Indeed, the decision below violates the core promise of the Equal Protection Clause by allowing Issue 3 to strip from a targeted class of citizens the ability to gain the "protection of the laws" against discrimination and other harms without first surmounting special obstacles that are not erected for any other group of citizens. Because the charter amendment categorically bars the Cincinnati government from ever providing protection to lesbians, gay men, and bisexuals, based upon their sexual orientation, it presents a facial violation of the Fourteenth Amendment's guarantee of equal protection of the laws. See Brief of Laurence H. Tribe, et al., Romer v. Evans, No. 94- 1039. II. THE RULING BELOW MISAPPLIED RATIONAL BASIS REVIEW TO UPHOLD A BLATANTLY DISCRIMINATORY AND EXCLUSIONARY MEASURE THAT DOES NOT RATIONALLY FURTHER ANY LEGITIMATE GOVERNMENT INTEREST. In addition to raising critical questions, as in Romer, about the fundamental right to equal participation in the political process, the ruling below departs sharply from this Court's approach to rational basis review where private bias infects the legislative process. It thus squarely presents the Court with the opportunity to resolve this disjunction and to clarify the proper application of the rational basis test when a law is found to give effect to animus, irrational fear and private prejudice. A definitive resolution of this question would provide guidance in a wide range of cases and thus merits plenary review. Moreover, this case raises important questions as to the application of rational basis review when legislation demarcates who may seek government remedies for discrimination and other wrongs and who may not. The Court should accept review to clarify that it is the exclusionary classification drawn by Issue 3 in this context that must be justified by a legitimate governmental purpose, one tied to the law's practical effects. The generalized justifications accepted by the Court of Appeals for the political disabling of lesbian and gay citizens by Issue 3 were divorced from these constitutional touchstones. The Sixth Circuit's approach, which threatens to make any such law unreviewable under the Equal Protection Clause, should be soundly rejected by this Court. A. The Ruling Below Disregards the Court's Decisions Which Hold that Giving Effect to Private Prejudice Is Not a Legitimate Government Interest. The Sixth Circuit's ruling in this case warrants review because it conflicts with many of this Court's precedents that have attached substantial significance to the existence of animus and prejudice in reviewing the constitutionality of laws under the "rational basis" standard. In general, it is only "absent some reason to infer antipathy" that the Court extends substantial deference in reviewing the justifications that are offered in defense of legislative classifications. Vance v. Bradley, 440 U.S. 93, 97 (1979), quoted in FCC v. Beach Communications, Inc., ___ U.S. ___, ___, 113 S. Ct. 2096, 2101 (1993). Less deference is accorded where antipathy and bias are shown to be present and the challenged measure is found to be serving such improper purposes as fearmongering, the arousing of prejudice, or the fostering of negative attitudes toward a defined group of citizens. See, e.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448-50 (1985). The Court has definitively stated that purposes such as these cannot suffice to sustain any law. See id. at 448 ("`private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect'") (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)). See also United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) ("some objectives -- such as a bare desire to harm a politically unpopular group -- are not legitimate state interests"). In addition, the Court has held that "fear of the political views of a particular group" cannot justify "[un]equal opportunity for political representation." Carrington v. Rash, 380 U.S. 89, 94 (1965). In this case, based on the testimony and the evidence that was submitted about the background and the effect of Issue 3 and the campaign that was waged in support of its passage, the District Court found that this measure reflected a "`bare . . . desire to harm a politically unpopular group.'" App. 75a (quoting Moreno, 413 U.S. at 534). The District Court also found that the impact of Issue 3 is to "giv[e] effect to private prejudice" and to place "the government's imprimatur on those acts of private bias carried out pursuant to Issue 3's unmistakable mission." App. 76a. In reversing the District Court, the Court of Appeals did not purport to set aside these findings. Instead, it simply ignored them and proceeded to accord maximum legislative deference in its assessment of the constitutionality of Issue 3. In doing so, it gave no weight at all to the anti-gay antipathy that was evident from the text and background of Issue 3, as the Court in Cleburne and Moreno indicated should be done in applying rational basis review. The raw incorporation of private bias, animus, and prejudice into provisions that have the force of law almost inevitably creates unequal treatment that is antithetical to the constitutional guarantee contained in the Equal Protection Clause. The likelihood of this result is unaffected by whether those actuating forces are open and obvious or instead are cloaked beneath pretextual justifications. The adoption of a measure like Issue 3, which institutionally disables the political participation rights of gay citizens, in the wake of a campaign that the District Court found was "riddled with unreliable data, irrational misconceptions and insupportable misrepresentations about homosexuals," App. 40a, calls for more careful review akin to that in Cleburne. The Court should take the opportunity in this case to reaffirm this important point. B. The Court of Appeals Ignored the Classification Drawn by Issue 3 and Its Practical Effect in Accepting Highly Generalized Justifications for the Measure. The Sixth Circuit's rational basis ruling also should be reviewed because the court did not focus on either the classification drawn by Issue 3 or the practical effect of the measure. The court's bare conclusion that Issue 3 "potentially further[s] a litany of valid community interests" of a highly generalized nature, App. 20a, avoids the hard question of whether it is rational to target lesbian, gay and bisexual citizens exclusively to bear the burden of serving these interests. The Court should accept review to forestall the inevitable and alarming consequences of the lower court's analysis. Under the Court of Appeals' approach, members of targeted minority groups will face permanent and arbitrary barriers to obtaining remedies for discrimination without any requirement that government have a meaningful rationale for singling them out. The Court should state plainly that the right to seek remedies from government for documented harms cannot be revoked in the name of abstract truisms that fail rationally to explain why this distinct and severe burden is selectively imposed only on some targeted citizens. Any principled application of equal protection guarantees, even under rational basis review, must begin by examining what the measure does and whom it disparately affects. See Moreno, 413 U.S. at 537-38 (rational basis review must consider "practical effect" of law and whether "classification" has rational basis). In addition to its immediate repealing effects on city laws and policies, Issue 3 takes the extraordinary step of imposing a sweeping prospective bar to government action to protect lesbians, gay men and bisexuals and "render[s] futile" efforts to secure legal protection for gay citizens now and in the future. See App. 17a. It is this partitioning of the citizenry, which effectively closes the doors of City Hall only to one targeted group of victims of bias and discrimination, which must be rationally justified. The Sixth Circuit, however, failed to focus its review on the connection between the classification of lesbians, gay men and bisexuals and the asserted purposes served by Issue 3. The rationales it accepted were extremely generalized and could equally support -- if any justification could support -- a reduction in the political rights of heterosexual citizens or any other targeted group of voters. None of these proffered justifications even begins to address or explain the deliberate decision to single out lesbian, gay and bisexual citizens for the distinct and severe burden on their civil and political rights imposed by Issue 3. For example, the Court of Appeals held that the measure was rationally justified because it reduced governmental regulation of the private social and economic conduct of Cincinnati residents [and] decreased municipal supervision of private conduct, which necessarily may result in some cost savings for the City's taxpayers. App. 20a-21a. But a measure that singled out any targeted group of citizens, or operated on a selective basis to eliminate any or all anti- discrimination laws, would serve these interests equally well. Indeed, any measure that repeals or prevents passage of another law theoretically serves an interest in reducing governmental regulation and saving costs. But these hypothetical and extremely generalized consequences say nothing about why the measure would be justified in singling out only one particular group to bear the burden of achieving these goals.13 "[E]ven the standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation." Heller v. Doe, ___ U.S. ___, ___, 113 S. Ct. 2637, 2643 (1993). Here the relationship between the classification of lesbians, gay men and bisexuals and these asserted goals "is so attenuated as to render the distinction arbitrary or irrational." Cleburne, 473 U.S. at 446 (citing Zobel v. Williams, 457 U.S. 55, 61-63 (1982) and Moreno, 413 U.S. at 535 (1973)). This is particularly true in a context in which basic civil and political rights, such as the ability to seek governmental protection from harm, are circumscribed. The opportunity to make a case to City legislators and administrators for protective laws or policies is not an area "where the legislature must necessarily engage in a process of line-drawing" between citizens. Beach Communications, ___ U.S. at ___, 113 S.Ct. at 2102 (quoting United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980)). The District Court similarly considered and dispatched several other abstract justifications put forward by the proponents of Issue 3, finding that the boundless generalities offered in support of the measure were insufficiently linked to the classification drawn in its text or to its actual impact. App. 71a-74a. In contrast, the Sixth Circuit accepted these justifications without meaningfully examining their relationship to Issue 3. For example, the Sixth Circuit's contention that Issue 3 "return[ed] the municipal government to a position of neutrality on the issue [of homosexuality]," id. at 20a, conflicted with the District Court's holding that Issue 3 "utterly frustrates" this asserted purpose, id. at 73a. The difference was that the Court of Appeals simply judged this justification to be a worthwhile goal in the abstract, while the District Court examined whether, in "practical effect," Moreno, 413 U.S. at 537, Issue 3 serves that goal, which it clearly does not.14 Likewise, citing Issue 3's elimination of penalties under the Human Rights Ordinance for anti-gay discrimination, the Sixth Circuit found that Issue 3 "enhanced associational liberty" and "augmented the degree of personal autonomy and collective popular sovereignty legally permitted" to Cincinnati residents. App. 20a-21a. But these asserted rationales could as robustly support repeal and future prohibition of any other limitation on discriminatory conduct against disfavored citizens. The mere invocation of a general desire to advance personal autonomy and associational liberty cannot explain the sweeping limitation of the rights of gay people -- and only gay people -- that is effected by Issue 3. The Sixth Circuit's reliance upon the due process analysis in Bowers v. Hardwick, 478 U.S. 186, 196 (1986), in support of a moral justification for Issue 3 is also flawed. App. 20a n.10. The Court did not hold in Hardwick that moral views supporting the criminalization of certain sexual acts are adequate to justify subordination of the civil rights of lesbians, gay men and bisexuals based on their sexual orientation. Issue 3 is not a prohibition of sodomy but a declaration of unequal political rights based on lesbian, gay or bisexual "orientation, status, conduct or relationship." It thus renders gay citizens unable to obtain governmental protection in many realms of their lives wholly unrelated to sexual conduct.15 Such a measure cannot be defended by rote citation to Hardwick, but only by demonstrating a rational connection between the classification drawn by the measure and the asserted justifications for it. See Moreno, 413 U.S. at 537. Moreover, in the concrete setting of this case, the District Court correctly found that the morality-based justification offered by respondents masked illegitimate governmental purposes. After hearing the evidence and examining the text of Issue 3, the trial court held that this justification was put forward as "a surrogate for the majority's desire to discriminate against an unpopular minority group" and rejected it under Cleburne, 473 U.S. at 446-48. App. 74a-76a. The Sixth Circuit improperly ignored these factual findings despite the intense factual backdrop of the Issue 3 campaign and the level of animus and prejudice that surrounded the enactment of this measure. Under the controlling decisions of this Court, rational basis review, albeit deferential, is not an empty charade in which appellate courts are free to ignore the law's actual effect on a targeted class of people. To the contrary, it is the law's discriminatory classification that must be defended with a rational justification. This case provides an opportunity for the Court to demonstrate that rational basis review of measures such as Issue 3 must be sufficiently meaningful to preserve the essential guarantees of equal protection of the laws. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted here. In the alternative, this case should be held pending the Court's resolution of Romer v. Evans, No. 94-1039. Respectfully submitted, PATRICIA M. LOGUE ALPHONSE A. GERHARDSTEIN SUZANNE B. GOLDBERG Counsel of Record Lambda Legal Defense and 1409 Enquirer Building Education Fund, Inc. 617 Vine Street 17 East Monroe, Suite 212 Cincinnati, Ohio 45202 Chicago, Illinois 60603 (513) 621-9100 (312) 759-8110 RICHARD A. CORDRAY SCOTT T. GREENWOOD 4900 Grove City Road Cooperating Counsel for the Grove City, Ohio 43123 American Civil Liberties Union (614) 539-1661 of Ohio Foundation, Inc. 441 Vine Street, Suite 2301 Cincinnati, Ohio 45202 (513) 684-0101 [Internet stgrnwd@iac.net] Attorneys for Petitioners August 9, 1995 Footnotes reproduced here as endnotes: 1 The full record in the District Court will be referred to as "R." References to the Joint Appendix before the Court of Appeals will be described as "Jt. App." Plaintiffs' exhibits, deposition exhibits and joint exhibits not included in the Joint Appendix will be referred to respectively as "Pltf. Ex.," "Depo. Ex." and "Jt. Ex." 2 Shortly after oral argument in the Sixth Circuit, the City Council repealed the provisions of the Human Rights Ordinance forbidding discrimination on the basis of sexual orientation, thus mooting the immediate impact of Issue 3 on that measure. However, the impact of Issue 3 on the Equal Employment Opportunity Ordinance and all future civil rights measures remains very much at issue in this case. 3 See, e.g., Pltf. Ex. 393 (complaint to City Manager about violence and harassment); Pltf. Ex. 394 (complaint about police flyer which employed the term "fag" bars); Pltf. Ex. 395 (1988 statewide survey on discrimination against lesbians, gay men and bisexuals); Pltf. Ex. 398 at 5-7 (summary of anti-gay acts by police and discrimination complaints by lesbians, gay men and bisexuals); Jt. App. 388-90, 402-03, 425-26. 4 The pamphlets were authored by Paul Cameron, a psychologist who has been formally criticized by several professional associations for misrepresenting data about gay people and who was dropped from membership in the American Psychological Association "for a violation of the Preamble to the Ethical Principles of Psychologists." Jt. App. 722; Jt. Ex. 5; Depo. Ex. 2 at 80 n.9. They were entitled "Child Molestation and Homosexuality," "Medical Consequences of What Homosexuals Do," "Violence and Homosexuality," and "What Causes Homosexual Desire and Can It Be Changed?" (Pltf. Exs. 22-25). 5 The District Court also correctly held that Issue 3 violated petitioners' First Amendment rights to freedom of speech and association, and to petition for redress of grievances; that classifications based on sexual orientation are quasi-suspect; and that Issue 3 was void for vagueness. See App. 55a-68a; 76a-87a. Petitioners do not seek review of the Sixth Circuit's reversal of these other rulings. 6 See Anti-Gay Rights Drive Spreads, Denver Post, Oct. 12, 1994, at 1. See also Adams, Pre-Election Anti-Gay Ballot Initiative Challenges: Issues of Electoral Fairness, Majoritarian Tyranny, and Direct Democracy, 55 Ohio St. L.J. 583, 584 n.2 (1994). 7 See Marcossen, The Special Rights Canard in the Debate over Lesbian and Gay Civil Rights, 9 Notre Dame J.L., Ethics & Pub. Pol'y 137 (1995); Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 Harv. C.R.-C.L. L. Rev. 283, 293-94, 300-07 (1994). 8 The text of Issue 3 additionally bars any "preferential treatment" of gay people. 9 Thus, the Court has decided a series of cases invalidating malapportioned election districts, see, e.g., Board of Estimate v. Morris, 489 U.S. 688, 701 (1989); Avery v. Midland County, 390 U.S. 474 (1968), ballot access restrictions, see, e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983); Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979), gerrymandered electoral districts, see, e.g., Whitcomb v. Chavis, 403 U.S. 124, 141-42 (1971); Gomillion v. Lightfoot, 362 U.S. 339 (1960), and conditions placed on the right to vote, see, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972); Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969). 10 The Court noted in Hunter that the challenged measure drew no specific distinctions among racial and religious groups, and thus treated "Negro and white, Jew and gentile in an identical manner," yet the Court considered its practical effect, which was to "disadvantag[e] those who would benefit from laws barring racial, religious, or ancestral discrimination" -- and as the Court observed, "the reality is that its impact falls on the minority." 393 U.S. at 390-91. There can be no question that Issue 3 burdens members of a minority group because, unlike the facially neutral Akron amendment, Issue 3 expressly targets only lesbians, gay men and bisexuals. 11 The Solicitor General's brief also provided the following illuminating example: "Thus, just as a state may not weight its legislature to overrepresent rural interests, so also it may not provide, for example, that laws benefiting its cities shall become effective only if passed by three successive legislatures. And the constitutional prohibition against disenfranchising Negroes or the poor would forbid a state to prescribe, for instance, that laws protecting the rights of racial minorities or laws designed to help the disadvantaged require a two-thirds vote in its legislatures." Id. at 15-16. 12 In addition, to the extent that the Court of Appeals suggests a "visibility" analysis, see App. 13a, for determining whether a law affects members of an identifiable group, its approach would be flatly inconsistent with this Court's precedents as well as common sense. Indeed, not even race is necessarily visible on sight, nor is it defined merely by appearance. See, e.g., St. Francis College v. Al-Khazraji, 481 U.S. 604, 610-13 & n.4 (1987) (definitions of race can be sociopolitical; "a distinctive physiognomy is not essential to qualify" for protection under 42 U.S.C. § 1981). 13 Moreover, it should be noted, the factual record established that these interests were actually not served by limiting the classification in Issue 3 to lesbians, gay men and bisexuals, as the District Court found. App. 70a- 71a. The measure would result in no measurable cost savings or deregulation, as the same resources and regulations were needed to protect heterosexuals and all others still served by existing City laws. Id. 14 The District Court correctly held that "[w]hile the mere absence of a law prohibiting discrimination on the basis of sexual orientation could arguably reflect governmental neutrality on the issue, Issue 3 is an affirmative statement to the City Council and city administration, and to all of the citizens of Cincinnati, that discrimination against homosexuals shall be permitted, and in all likelihood, shall never be prohibited no matter what the circumstances." App. 73a. 15 Asserting that de novo review applies because the case involves "sociological judgments," App. 9a, the Court of Appeals ignored the District Court's findings as well as vast psychological and scientific evidence of record on the subject of sexual orientation. See id. at 37a-40a (district court findings of fact). It instead "found" that sexual orientation is a meaningless concept and, closing its eyes to Issue 3 and many other laws, declared that no law can be drafted to impose benefits or burdens based on sexual orientation alone. Id. at 13a. The court below thus failed to acknowledge the full impact of Issue 3. But as the unrebutted expert evidence established, one's orientation as gay, lesbian, heterosexual or bisexual is very real and deeply significant in many respects. It cannot be discounted as a matter of "sociological judgment" nor does it depend on conduct of any kind, sexual or otherwise. Moreover, a thorough historical record established that gay people are frequently targets for discrimination based on their identity as gay people rather than their "behavior." This incontrovertible fact has spurred the passage of the Cincinnati Human Rights Ordinance and more than 100 similar laws nationwide that bar discrimination based on sexual orientation. See, e.g., Pltf. Ex. 9; App. 39a. 16 The trial judge made the following findings: 1. Homosexuals comprise between 5 and 13% of the population. 2. Sexual orientation is a characteristic which exists separately and independently from sexual conduct or behavior. 3. Sexual orientation is a deeply rooted, complex combination of factors including a predisposition toward affiliation, affection, or bonding with members of the opposite and/or the same gender. 5. [sic] Sexual behavior is not necessarily a good predictor of a person's sexual orientation. 6. Gender non-conformity such as cross-dressing is not indicative of homosexuality. 8. [sic] Sexual orientation is set in at a very early age -- 3 to 5 years -- and is not only involuntary, but is unamenable to change. 9. Sexual orientation bears no relation to an individual's ability to perform, contribute to, or participate in, society. 10. There is no meaningful difference between children raised by gays and lesbians and those raised by heterosexuals. Similarly, children raised by gay and lesbian parents are no more likely to be gay or lesbian than those children raised by heterosexuals. 11. There is no correlation between homosexuality and pedophilia. Homosexuality is not indicative of a tendency toward child molestation. 12. Homosexuality is not a mental illness. 13. Homosexuals have suffered a history of pervasive irrational and invidious discrimination in government and private employment, in political organization and in all facets of society in general, based on their sexual orientation. 14. Pervasive private and institutional discrimination against gays, lesbians and bisexuals often has a profound negative psychological impact on gays, lesbians and bisexuals. 15. Gays, lesbians and bisexuals are an identifiable group based on their sexual orientation and their shared history of discrimination based on that characteristic. 16. Gays, lesbians and bisexuals are often the target of violence by heterosexuals due to their sexual orientation. 17. In at least certain crucial respects, gays, lesbians and bisexuals are relatively politically powerless. 18. Coalition building plays a crucial role in a group's ability to obtain legislation in its behalf. Gays, lesbians and bisexuals suffer a serious inability to form coalitions with other groups in pursuit of favorable legislation. 19. No Federal laws prohibit discrimination based on sexual orientation. Furthermore, voter back-lash around the country has lead [sic] to the repeal of numerous laws prohibiting discrimination against gays, lesbians and bisexuals. In 38 of the approximately 125 state and local communities where some sort of measure prohibiting discrimination based on sexual orientation has been adopted, voter initiated referendums have been placed on the ballot to repeal those gains. 34 of the 38 were approved. 20. The amount of resources spent by the City on processing and investigating discrimination complaints by gays, lesbians and bisexuals is negligible. City resources spent on processing and investigating all sexual orientation discrimination complaints is negligible. 21. The inclusion of protection for homosexuals does not detract form [sic] the City's ability to continue its protection of other groups covered by the City's anti-discrimination provisions. 22. Amending the City Charter is a far more onerous and resource- consuming task than is lobbying the City Council or city administration for legislation; it requires a city wide campaign and support of a majority of voters. City Council requires a bare majority to enact or adopt legislation. 23. ERNSR campaign materials were riddled with unreliable data, irrational misconceptions and insupportable misrepresentations about homosexuals. 17 Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc) (following Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) ("It would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause")); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert. denied, 494 U.S. 1004, 110 S. Ct. 1296 (1990) ("If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes"); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (same); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003, 110 S. Ct. 1295 (1990) (homosexuality is primarily behavioral in nature and as such is not immutable; "[a]fter Hardwick it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm"). Accord, Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022, 106 S. Ct. 3337 (1986) (homosexuals compose neither a suspect nor a quasi-suspect class); National Gay Task Force v. Board of Education of Oklahoma City, 729 F.2d 1270, 1273 (10th Cir. 1984), aff'd mem. by an equally divided Court, 470 U.S. 903, 105 S. Ct. 1858 (1985) (legal classification of gays is not suspect) (both decided prior to Bowers). 18 See Findings of Fact Nos. 2-8, Equality Foundation, 860 F.Supp. at 426, quoted at Note 1, supra. 19 In any event, the Amendment passes equal protection scrutiny even if it is read as affecting a status-defined class, in that it imposes no punishment or disability upon persons belonging to that group but rather merely removes previously legislated special protection against discrimination from that segment of the population: It is true that the Constitution forbids criminal punishments based on a person's qualities -- we assume that this is what is meant by "status" -- rather than on his or her conduct. [Citation]. Yet, this proposition has never meant that employment decisions - which is what this case is about -- cannot be made on such a basis. One cannot be put in jail for having been born blind (although a blind person who drives a truck and kills someone could be jailed for his act). But it obviously would be constitutional for the military to prohibit blind people from serving in the armed forces, even though congenital blindness is certainly a sort of "status." Steffan v. Perry, 41 F.3d 677, 687 (D.C. Cir. 1994) (en banc) (emphasis partially added) (sustaining military regulations banning homosexuals from the Naval Academy and from service in the Navy). Compare Bowers v. Hardwick, in which the Supreme Court validated a state-imposed criminal sanction against sodomy. By contrast, the Amendment did not punish or prohibit any aspect of the homosexual lifestyle, and indeed did not compel the deprivation of anything from any person by the use of government power because of his or her sexual orientation. 20 No circuit court of appeals has expressly recognized a general constitutional right to "participate fully in the political process." However, the United States Supreme Court has recently granted certiorari in a case in which the Colorado Supreme Court found a broad fundamental right to participate equally in the political process. Evans v. Romer (Evans II), 882 P.2d 1335 (Colo. 1994), cert. granted, ___ U.S. ___, 115 S. Ct. 1092 (1995) (striking down as unconstitutional Colorado's Amendment 2, a voter-initiated amendment to the Colorado constitution similar to Cincinnati's Issue 3). See also Evans v. Romer (Evans I), 854 P.2d 1270, 1276-84 (Colo. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 419 (l993). 21 In James, a voter-approved amendment to the California constitution directed that no public housing project could be maintained without the prior approval of a majority of those voting in the local community election. This amendment created the same procedural hurdle as reviewed in Hunter -- certain classes of local legislation could take effect only with the approval of the majority of local voters. However, in James, no suspect class or fundamental right was at issue. The James Court declared: The Court [in Hunter] held that the amendment created a classification based upon race because it required that laws dealing with racial housing matters could take effect only if they survived a mandatory referendum while other housing ordinances took effect without any such special election. ****************************************** Unlike the Akron referendum position, it cannot be said that [the California amendment] rests on "distinctions based on race." [Citation]. The [California] Article requires referendum approval for any low-rent housing project, not only for projects which will be occupied by a racial minority. And the record here would not support any claim that a law seemingly neutral on its face is in fact aimed at a racial minority. [Citation]. The present case could be affirmed only by extending Hunter, and this we decline to do. Id., 402 U.S. at 140-41, 91 S. Ct. at 1333. (Emphasis added). 22 In Gordon, the Justices rejected the claim that a state constitutional requirement that state bonded indebtedness or tax rates may not exceed certain levels in the absence of 60% voter approval by referendum violated the United States Constitution, dictating that this provision deprived no group of its fundamental right to vote, even though in some instances a majority vote would be insufficient to affect policy on a particular subject, and further ruled that no "discrete or insular minority" was disabled thereby. Id., 403 U.S. at 2-6; 91 S. Ct. at 1890-92. 23 Furthermore, the Amendment's removal of special protection for homosexuals from the City's official hiring practices is not constitutionally invalid. The Amendment did not mandate governmental discrimination against homosexuals in municipal employment but rather merely eliminated the categorical bar embodied in the Equal Employment Opportunity Ordinance which precluded all sexual orientation-based employment discrimination by the City in every context. The eradication of this all- encompassing special protection does not remove whatever restraints the Constitution may independently impose upon the City regarding employment practices as related to the exercise of free speech or free association rights, or other constitutional rights, by municipal employees or job applicants. This appellate review need not decide, and therefore does not address, the scope of this constitutional safeguard, if any, in the instant appeal. 24 Indeed, in the referendum context, it is impermissible for the reviewing court to inquire into the possible actual motivations of the electorate in adopting the proposal. Arthur, 782 F.2d at 574; Clarke v. City of Cincinnati, 40 F.3d 807, 815 (6th Cir. 1994), petition for cert. filed, 63 U.S.L.W. 3707 (U.S. March 16, 1995) (No. 94-1536). Instead, the court must consider all hypothetical justifications which potentially support the enactment. Beach Communications, supra. 25 Even if the Amendment is construed to reflect the majority's moral views respecting homosexuality, the Supreme Court has dictated such articulations to constitute a legitimate governmental interest. Bowers, 478 U.S. at 196, 106 S. Ct. at 2846 (a state criminal sodomy statute is justified as an expression of the belief of the electoral majority that homosexuality is immoral). 26 Prior to trial this Court considered the Defendant City of Cincinnati's Motion for Summary Judgement (doc. 37), the Intervening Defendant's Motion for Summary Judgment (doc. 41), the Intervening Defendant's Memorandum in Support of its Motion for Summary Judgement (doc. 40), and the Plaintiffs' Memorandum in Opposition (doc. 43). In our Order filed June 3, 1994, this Court denied those motions. See Order Denying Motions for Summary Judgement, Document 52. 27 Section 914-9 of the HRO provides in relevant part that if conference and conciliation fails to eliminate the offensive practices, a notice of violation and order to cease and desist . . . shall be served on the respondent and complainant, . . . [and if the unlawful discriminatory practice has not been eliminated within 30 days thereof] the Complaint Officer shall take action to refer the matter to the city manager or the city manager's designee for civil or criminal enforcement. Section 914-11 provides that, If after 30 calendar days following service of an order to cease and desist, the respondent has not eliminated or corrected the unlawful discriminatory practice, the Complaint Officer is authorized to impose a fine of $100 per day for each day of substantial non- compliance with the provisions of this chapter, but not to exceed a total of $1000. The city manager is authorized to institute through the city solicitor in the name of the City of Cincinnati any appropriate civil enforcement proceedings. Finally, section 914-13 provides that, Any person who commits an unlawful discriminatory practice under any of the provisions of this chapter and fails to obey any order of the city manager or his duly authorized designee to cease and desist such unlawful discriminatory practice shall be guilty of failure to comply with an unlawful discriminatory practice order, a misdemeanor in the fourth degree. 28 Section 914-17 provides that the HRO, and each section and provision . . . thereunder, are hereby declared to be independent divisions and subdivisions and, notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said chapter, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such provision to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be valid. 29 See Plaintiffs' Exhibit 2, at 10; See also Plaintiffs' Exhibit 27. 30 The Defendants also assert that "Since City Council itself could repeal the Human Rights Ordinance's protection of Homosexuals, the perceived constitutional evil of Issue 3 must be that this same result was obtained through direct democratic action." We disagree with this for at least one reason: it is beyond dispute that Issue 3 is more than a mere repeal measure but blocks all future city coun[cil] legislation on behalf of gays[,] lesbian[s] and bisexual[s]. 31 The Defendant City of Cincinnati, the Intervening Defendant ERNSR, and the Intervening Defendants Mark Miller, Thomas E. Brinkman, Jr., and Albert Moore, shall be collectively referred to as "Defendants" throughout this opinion. 32 References in this opinion to ERNSR campaign materials are not for the purpose of establishing the "intent" of the voters of Cincinnati in voting for Issue 3. See Arthur v. Toledo, 782 F.2d 565, 573-74 (6th Cir. 1986). Rather, this material simply emphasizes the depth and pervasiveness of the inaccurate and unfounded stereotypes about gays, lesbians and bisexuals in our society. For example, ERNSR campaign materials and statements addressing the subject incorrectly assumed that gay and lesbian sexual orientation and identity are defined solely by engaging in sexual acts with persons of the same sex. Furthermore, despite the far broader preemptive effect on future legislation, Issue 3 was inaccurately promoted as a simple repeal of "special rights for homosexuals" through the use of television and radio advertisement[s], mailings, and other sources. Some of the material, including the following, made confusing and inaccurate references to the supposed criteria a group must meet to be entitled to anti-discrimination legislation[. S]ome of the material stated that, While the United States Constitution and Bill of Rights protects all Americans, civil rights laws have been legislated to provide special protection to certain minorities and groups of individuals. These laws and subsequent Supreme Court decisions have identified three criteria that must be met for a group to qualify for special protection: 1. A group wanting true minority rights must show that it is discriminated against to the point that its members cannot earn an average income, get an adequate education or enjoy a fulfilling cultural life. 2. The group must be clearly identifiable by unchangeable physical characteristics such as skin color, gender, handicap, age, etc. 3. The group must clearly show that it is politically powerless. ([italicized] portion in original). This excerpt from a campaign pamphlet clearly confuses the criteria supposedly used by the United States Supreme Court in determining what groups have been entitled to suspect or quasi-suspect status (erroneously implying age and disability are among those groups) and identifying those factors as ones also controlling legislative decisions on whether a group is entitled to anti-discrimination legislation. Such representations are inaccurate and misleading. Besides various pamphlets like the one above, the "educational" materials disseminated by the proponents of Issue 3 were patently misleading in several respects. For example, the materials repeatedly referred to "special rights" for homosexuals, while it is beyond dispute that the HRO and the EEO only provided homosexuals with the same protection accorded other groups (groups, who, unlike homosexuals, also enjoy such protection, and more, under federal and state law). 33 An ordinance may also be passed by popular vote through the initiative process. The other form of voter initiated legislation besides the initiative and the charter amendment is the referendum. A referendum is a second way to repeal an ordinance. 34 Mr. Guckenberger testified at the preliminary injunction hearing. He was [a] member of the City Council for over twenty years. He left City Council in February of 1992 to assume a position as Hamilton County Commissioner, Hamilton County Ohio. The Court found him to be an extremely knowledgeable and credible witness. See Equality, 838 F. Supp. at 1236-38. 35 In Hunter the Supreme Court invalidated an Akron, Ohio city charter amendment passed by a majority of the voters providing that city council could implement no ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of a majority of the city's voters. 393 U.S. 385. In Gordon, the Court upheld a state's constitutional and statutory mandates requiring approval of 60% of the voters before increasing bonded indebtedness. 403 U.S. 1. In Washington, the Court invalidated a statewide initiative which terminated the use of mandatory busing for the purpose of racial integration. 458 U.S. 457. 36 It is also noteworthy that the Washington Court made reference to the "Hunter Doctrine." 458 U.S. at 473. If Hunter were merely a race case, the "Hunter doctrine" would have to refer to the well-established principle that racial classifications must be strictly scrutinized. Clearly that principle is not known as the "Hunter Doctrine." 37 The Defendants have expressed their concern that any group who supports a given issue for which a charter amendment is required would be an "identifiable group." Thus, they claim, the Court's holdings will "invalidate virtually every charter amendment and referendum, as virtually all legislation adversely affects [identifiable] groups" who will suffer "an inability to lobby the City Council to reverse the results of the public referendum." We agree that any time a group supports an issue for which a charter amendment must be obtained that group is "identifiable" and is in fact "disadvantaged" in the manner that the Defendants describe. However, the difference between an "independently identifiable group" and an "identifiable group" is that where the factor identifying the group transcends the mere support for any given issue, the group is "independently identifiable" within the context of Gordon, and Hunter. Thus, in Gordon, the fact that no "independently identifiable group favored bonded indebtedness," saved the provision, although clearly an identifiable group favored bonded indebtedness--namely, all of those individuals who favored bonded indebtedness. See Gordon, 403 U.S. 1. Thus, the difference between an identifiable group, and an independently identifiable group is that the defining characteristic of an independently identifiable group transcends the mere support for a single political issue, such as race, gender or sexual orientation. On the other hand, a group whose sole identifying characteristic is that group's support for a single[] issue is merely an identifiable group. Thus, contrary to the Defendants' concerns, our holding will not jeopardize the entire charter amendment process. Indeed, the Court has clearly upheld the constitutionality of the charter amendment process. See Gordon, 403 U.S. 1 (1971) and James v. Valtierra, 402 U.S. 137 (1971). It should also be noted that the "simple repeal or modification of. . .antidiscrimination laws, without more, . . ." is not unconstitutional. Washington, 458 U.S. at 483 (internal quotation omitted); Hunter, 393 U.S. at 390 n.5. 38 We recognize that the Supreme Court has demonstrated some skepticism as to the relevance of the immutability factor. Cleburne, 473 U.S. at 442-43 n.10. 39 On at least two occasions, in determining what standard of equal protection review was appropriate, the Supreme Court noted the complex and specialized nature of the legislation and the judiciary's lack of competence to review it. Thus, the Court has at least suggested this as another relevant consideration. See Rodriguez, 411 U.S. at 40-43; Cleburne, 473 U.S. at 442-3. 40 Thus, the Supreme Court has noted, "[s]ome classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective." Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). 41 In fact ERNSR campaign literature accused homosexuals of habitually engaging in a wide range of activities, some of which allegedly involve the use of rodents, fists, and other objects. These inflammatory assertions were thoroughly rebutted by the Plaintiffs' expert, Dr. Conant. 42 Throughout this litigation much attention has been focused on whether gays[,] lesbians and bisexuals are "politically powerless." While we recognize that the Supreme Court has touched upon this variable in several cases, it is by no means the controlling criteria in determining suspect or quasi-suspect status. Because, the "Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility[,]" Plyler v. Doe, 457 U.S. 202, 245 (1982) (Burger, C.J., dissenting), whether a class is labeled "suspect" or "quasi-suspect" should not be controlled by, nor do we think the Supreme Court has ever held that it is controlled by, a group's ability to pass or fail some ill-defined political power test. Additionally, relative political power cannot even be a particularly weighty factor, let alone a controlling one. For example, it cannot be said that males, as a group, have been relegated to such a position of political powerlessness as to require special judicial protection. Nonetheless, laws differentiating between the sexes which disadvantage males as well as females, must be subjected to heightened scrutiny. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982); Craig v. Boren, 429 U.S. 190, 204 (1976). Thus, the fact that gender is beyond the individual's control and is generally totally irrelevant must be far more controlling than any political power analysis. Similarly, if political power were the overriding factor, political gains by women and racial minorities could threaten their protected status. Furthermore, the only cases this Court is aware of that gives some semblance of guidance as to what even constitutes a groups's relative political power are Frontiero, 411 U.S. 677 and Cleburne, 473 U.S. 432. In neither case did the Court explore whether the group involved had the ability to form coalitions or to what extent they contributed money to PACs. In Frontiero, for example, the Court noted the absence of women in this country's "decisionmaking councils." 411 U.S. at 686, 686 n.17. In Cleburne, the Court reviewed legislation designed to benefit the mentally retarded, noting that much state and federal legislation went beyond merely prohibiting discrimination against that group. Cleburne, 473 U.S. at 443-45. The thrust of that analysis was not to explore the political power of the group as such, but rather to underline the error in the view that laws drawing a distinction on mental ability should be presumed invidious and therefore unconstitutional. The Court observed that in fact the opposite was true: "[I]n the vast majority of situations" the legislative response to the plight of the mentally retarded, both federal and state, has been both "legitimate [and] . . . desirable." Id. at 444. In order for a law to be subject to heightened scrutiny, it must have lost the general presumption that it is rational and legitimate. In the case of the mentally retarded, the "vast majority" of laws dealing with that group benefit them, going beyond merely prohibiting discrimination. The Court also discussed how mental retardation bore on an individual's abilities and was a legitim[ate] subject of legislation. It therefore defies logic and experience to presume that a law based on that criteria is unconstitutional. Furthermore, in most cases the Supreme Court has no more than made passing reference to the "political power" factor without ever actually analyzing it. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602 (1987); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976); San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). Thus, while these Courts have given the test differing degrees of attention, one thing is apparent to this Court: the significance of the test pales in comparison to the question of whether or not the characteristic bears any relationship to the individual's ability to function in society, whether the group has suffered a history of discrimination based on misconceptions of that factor and whether that factor is the product of the group's own volition. 43 There was also conflicting testimony on the ultimate impact PAC money has on lawmakers' actual votes. 44 Indeed, Mr. Guckenberger testified at the hearing on the motion for preliminary injunction, that he knew of no other time in the history of the City of Cincinnati when such a charter amendment was enacted. See Equality, 838 F. Supp. at 1238. 45 According to the Plaintiffs' statistics, there are 497,155 elected officials in the United States. There are no openly gay or lesbian United States Senators; 2 openly gay members of the House of Representatives; 12 of the 7,461 state legislators are openly gay; of the total of 497,155 elected officials in the United States, a total of 73 are openly gay. 46 Although several other cases pre-dated Bowers, they based their decision not to grant quasi-suspect status to homosexuals on essentially the same point we reject. See Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc) ("[b]ecause . . . homosexual conduct is not a constitutionally protected liberty interest . . . we refuse to hold[] that homosexuals constitute a suspect or quasi-suspect classification"); National Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 1273 (l0th Cir. 1984), aff'd by equally divided Court, 470 U.S. 903 (1985)("[w]e cannot find that a classification based on the choice of sexual partners is suspect"); Rich v. Secretary of Army, 735 F.2d 1220, 1229 (l0th Cir. 1984) (same). 47 For example, the Defendants consistently portrayed Issue 3 as a mere repeal measure which all parties concede it is not. Furthermore, what was ostensibly being repealed were "special rights" for gays which that group has theoretically received over and above those enjoyed by other groups. In fact many other non-traditionally suspect groups enjoy not only local, but federal and state protections beyond those given to gays. 48 See, e.g., Gordon v. Lance, 403 U.S. 1 (1971). 49 Such added obstacles to the political process bolsters this Court's conclusion that Issue 3 unconstitutionally "fences out" the Plaintiffs from the political process. See Part III, above. 50 In fact, the Court recognized that "the right of individuals to associate for the advancement of political beliefs, and...the right [of voters] to cast their votes effectively...of course, rank among our most precious freedoms." Williams, 393 U.S. at 30. 51 First, the cases speak unmistakably in race-neutral terms. See, e.g., Hunter v. Erickson, 393 U.S. 385 (1969) ("state may no more disadvantage any particular group . . ."); Washington v. Seattle School District No. 1, 458 U.S. 457, 470 (1982) ("laws structuring political institutions or allocating power according to "neutral principles . . . are not subject to equal protection attack"); Gordon v. Lance, 403 U.S. 1, (1971) ("so long as the [legislation does] not discriminate against or authorize discrimination against any identifiable class . . . ."). Furthermore, Gordon, a case not involving race, was distinguished from Hunter not because the legislation in Gordon did not specifically involve a racial minority, but rather because the legislation involved no identifiable group at all. Thus, as the Supreme Court of Colorado pointed out, if Hunter were decided solely on the basis of the "suspect" nature of the class[] involved, there would have been no need for the Court to consistently express the paramount importance of political participation or to subject legislation which infringed on the right to participate equally in the political process to strict judicial scrutiny. To the contrary, were [Hunter] . . . simply a "race case[]" the Supreme Court would have been required to do nothing more than to note that the legislation at issue drew a distinction that was inherently suspect (i.e., that discriminated on the basis of race), and apply strict scrutiny to resolve [that] case[] -- irrespective of the right, entitlement, or opportunity that was being restricted. . . . Kramer v. Union School Free District No. 15, 395 U.S. 621, 628, n.9 . . . . Evans v. Romer, 854 P.2d 1270, 1283 (Colo. 1993); see Citizens for Responsible Behavior v. Sup. Court., 2 Cal. Rptr.2d 648, 656 (Cal. App. 1991). 52 We note that despite the Defendants' urging, we decline to interpret the phrase "identifiable group" as used in the above cases to be synonymous with the phrase "suspect category." See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 791, 792 (1983) (labeling supporters of independent political candidate "identifiable group"). 53 As Mr. Guckenberger testified, there is a "dramatic difference" between getting an ordinance passed and getting a charter amendment passed. 54 In fact, one witness testified that with the passage of Issue 3, some members of organizations advocating gay, lesbians and bisexual rights have ceased donating to the organizations. 55 We also note that even under a rational basis standard of review, based on the record, there is a significant likelihood that amendment 3 would not pass muster. See Steffan v. Aspin, No. 91-5409, 1993 U.S. App.LEXIS 29521, at *39-*42 (D.C. Cir. Nov. 16, 1993) (military's ban on homosexuals lacked rational basis); Pruitt v. Cheney, 963 F.2d 1160, 1166 (9th Cir. 1991), cert. denied, 113 S. Ct. 655 (1992) (same); Citizens for Responsible Behavior v. Sup. Court., 2 Cal. Rptr.2d 648, 656 (Cal. App. 1991) (anti-gay initiative requiring a majority vote to enact any prohibition on sexual orientation discrimination lacked rational basis). Sixth Circuit Stay: Case Nos: 94-3855; 94-3973; 94-4280 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ORDER EQUALITY FOUNDATION OF GREATER CINCINNATI, INC.; RICHARD BUCHANAN; CHAD BUSH; EDWIN GREENE; RITA MATHIS; ROGER ASTERINO; HOME, INC. Plaintiffs - Appellees v. CITY OF CINCINNATI; Defendant - Appellant EQUAL RIGHTS, NOT SPECIAL RIGHTS; MARK MILLER; THOMAS E. BRINKMAN, JR.; ALBERT MOORE Intervenors - Appellants BEFORE: KENNEDY, KRUPANSKY & NORRIS, Circuit Judges Upon consideration of the appellee's motion to stay the mandate through August 10, 1995, which includes the full ninety (90) days permitted for filing a petition for writ of certiorari in the U.S. Supreme Court, It is ORDERED that the motion be and hereby is GRANTED. ENTERED BY ORDER OF THE COURT Leonard Green/S Leonard Green, Clerk Sixth Circuit Opinion: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 24 ELECTRONIC CITATION: 1995 FED App. 0147P (6th Cir.) File Name: 95aO147p.06 NOS. 94-3855/3973/4280 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EQUALITY FOUNDATION OF GREATER CINCINNATI, INC., RICHARD BUCHANAN, CHAD BUSH, EDWIN GREENE, RITA ON APPEAL from the MATHIS, ROGER ASTERINO, United States District AND H.O.M.E., INC., Court for the Southern Plaintiffs-Appellees, District of Ohio v. CITY OF CINCINNATI (94-3973/4280), Defendant-Appellant, EQUAL RIGHTS NOT SPECIAL RIGHTS, MARK MILLER, THOMAS E. BRINKMAN, JR., AND ALBERT MOORE (94-3855), Intervening Defendants-Appellants. Decided and Filed May 12, 1995 Before: KENNEDY, KRUPANSKY, and NORRIS, Circuit Judges. KRUPANSKY, Circuit Judge. In case numbers 94- 3855/3973, defendant/appellant the City of Cincinnati ("the City"), and intervening defendants/appellants Equal Rights Not Special Rights ("ERNSR"), Mark Miller, Thomas E. Brinkman, Jr., and Albert Moore, challenged the lower court's invalidation of, and permanent injunction restraining implementation of, an amendment to the City Charter of Cincinnati ("the Charter") denominated "Issue 3" which was enacted by popular vote on November 2, 1993 and which then became Article XII of the Charter ("the Amendment"), for purported constitutional infirmities. In case number 94-4280, the City contested the district court's award of attorneys' fees and costs in favor of the plaintiffs. On March 13, 1991, the Cincinnati City Council (the "Council") enacted Ordinance No. 79-1991, commonly known as the "Equal Employment Opportunity Ordinance." This measure provided that the City could not discriminate in its own hiring practices on the basis of classification factors such as race, color, sex, handicap, religion, national or ethnic origin, age, sexual orientation, HIV status, Appalachian regional ancestry, and marital status. (Emphasis added). Subsequently, Council on November 25, 1992 adopted Ordinance No. 490-1992 (commonly referred to as the "Human Rights Ordinance") which prohibited, among other things, private discrimination in employment, housing, or public accommodation for reasons of sexual orientation. The opening paragraph of the Human Rights Ordinance expressed the purpose for the legislation as: PROHIBITING unlawful discriminatory practices in the City of Cincinnati based on race, gender, age, color, religion, disability status, sexual orientation, marital status, or ethnic, national or Appalachian regional origin, in employment, housing, and public accommodations by ordaining Chapter 914, Cincinnati Municipal Code. (Emphasis added). Among other things, the new law created complaint and hearing procedures for purported victims of sexual orientation discrimination, and exposed offenders to potential civil and criminal penalties. ERNSR was organized for the purpose of eliminating special legal protection accorded to persons based upon their sexual orientation pursuant to the Human Rights Ordinance. ERNSR campaigned to rescind the Human Rights Ordinance by enacting a proposed City Charter amendment (Issue 3), which was to be submitted directly to the voters on the November 2, 1993 local ballot. On July 6, 1993, plaintiff Equality Foundation of Greater Cincinnati, Inc. ("Equality Foundation") was incorporated by the opponents of the ERNSR agenda. A vigorous political contest between ERNSR and Equality Foundation, involving aggressive campaigning by both sides and high media exposure, ensued over Issue 3. The ERNSR-sponsored proposed charter amendment ultimately appeared on the November 2, 1993 ballot as: ARTICLE XII NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS. The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment. This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect. Issue 3 passed by a popular vote of approximately 62% in favor and 38% opposed and became Amendment XII to the Cincinnati City Charter. On November 8, 1993, plaintiffs Equality Foundation, several individual homosexuals (Richard Buchanan, Chad Bush, Edwin Greene, Rita Mathis, and Roger Asterino), and Housing Opportunities Made Equal, Inc. ("H.O.M.E.") (a housing rights organization) filed a complaint against the City under 42 U.S.C. § 1983 which alleged that their constitutional rights had been, or would potentially be, violated by the adoption of Issue 3, and sought temporary and permanent injunctive relief, a declaration that the Amendment was unconstitutional, and an award of costs (including attorneys' fees) under 42 U.S.C. § 1988. On November 15, 1993, ERNSR, Mark Miller, Thomas E. Brinkman, Jr., and Albert Moore moved to intervene as parties allied with the City. On November 16, 1993, the trial court preliminarily enjoined the City from enforcing the Amendment. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati (Equality 1), 838 F.Supp. 1235, 1243 (S.D. Ohio 1993). On December 27, 1993, the district court granted the intervention motion. On June 3, 1994, the trial court rejected a summary judgment motion initiated by the City and ERNSR. A bench trial was conducted which generated extensive expert testimony reflecting the social, political, and economic standing of homosexuals throughout the nation and the homophobic discriminations that had been experienced by the individual plaintiffs and others. Subsequent to trial the judge issued extensive findings of fact.16 Equality Foundation of Greater Cincinnati v. City of Cincinnati (Equality II), 860 F.Supp. 417, 426-27 (S.D. Ohio 1994). It concluded that the Amendment infringed the plaintiffs' purported "fundamental right to equal access to the political process," as well as First Amendment rights of free speech and association and the right to petition the government for redress of grievances, which violations of constitutional rights subjected the Amendment to a "strict scrutiny" constitutional evaluation. Additionally, the district court posited that, because homosexuals collectively comprise a "quasi-suspect class," the Amendment was alternatively reviewable under the intermediate "heightened scrutiny" constitutional standard. Moreover, the lower court found that "[the Amendment] was insufficiently linked to any governmental interest to pass constitutional muster" even under the deferential "rational basis" test. Finally, the district court adjudged the Amendment constitutionally deficient for vagueness. Id. at 449. On November 15, 1994, the district court awarded $339,430.25 in attorneys' fees plus $35,028.07 in costs to the plaintiffs, to be paid by the City. Generally, this court reviews findings of fact for clear error and conclusions of law de novo. United States v. Critton, 43 F.3d 1089, 1098 (6th Cir. 1995); Rodgers v. Jabe, 43 F.3d 1082, 1085 (6th Cir. 1995). However, where ostensible "findings of fact" are, in reality, findings of "ultimate" facts which entail the application of law, or constitute sociological judgments which transcend ordinary factual determinations, such "findings" must be reviewed de novo. Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 500-1 & n.16, 104 S. Ct. 1949, 1959 & n.16 (1984); Powell v. Texas, 392 U.S. 514, 52122, 88 S.Ct. 2145, 2148-49 (1968); Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir. 1989). Moreover, mixed questions of law and fact, like pure questions of law or of statutory interpretation, are reviewed de novo. Paul Revere Insurance Co. v. Brock, 28 F.3d 551, 553 (6th Cir. 1994). Furthermore, the sufficiency of the evidence to support a finding that a constitutional predicate (such as "actual malice" in a defamation action prosecuted by a public official) has been satisfied presents a question of law. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685-89, 109 S. Ct. 2678, 2694-96 (1989); New York Times v. Sullivan, 376 U.S. 254, 284-86 & n.26, 84 S. Ct. 710, 728-29 & n.26 (1964). Because most, if not all, of the lower court's findings in the instant case constituted ultimate facts and interrelated applications of law, sociological judgments, mixed questions of law and fact, and/or findings designed to support "constitutional facts" (to wit, the existence of a "quasi-suspect" class, or of a fundamental right which was invaded by the Amendment), see Note 1, supra, they are subject to plenary review. The constitutional guarantee of equal protection insulates citizens only from unlawfully discriminatory state action; it constructs no barrier against private discrimination, irrespective of the degree of wrongfulness of such private discrimination. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S. Ct. 1965, 1971 (1972). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution did not compel the City of Cincinnati to enact legislation to protect homosexuals from discrimination, and accordingly the City, through its ordinary legislative processes, was at liberty to rescind any previous enactments which had fashioned such safeguards. See Crawford v. Board of Education of Los Angeles, 458 U.S. 527, 538, 102 S. Ct. 3211, 3218 (1982). Accordingly, the mere repeal of certain sections of the Human Rights Ordinance which had previously protected homosexuals, lesbians, and bisexuals was not itself constitutionally assailable. However, the district court ruled that the Amendment not only nullified the previously-enacted special legal protection for homosexuals; rather, it assertedly prevented a distinct class of citizens from exercising certain equal protection and First Amendment rights in the future, which, in the lower court's analysis, triggered constitutional review of the Amendment. See Equality II, 860 F.Supp. at 428-34. The Supreme Court has announced three tests against which the constitutional validity of a law (in this case, a city charter amendment) which purportedly disproportionately burdens a discrete class, or deprives some group of a purported right, may be judged. Generally, the "legislation is presumed to be valid and will be sustained if the classification drawn by the statute [or city charter amendment] is rationally related to a legitimate state interest." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S. Ct. 3249, 3254 (1985). This presumption of validity characteristic of the "rational relationship" rule typically applies to social and economic enactments, where the Court has recognized that "the Equal Protection Clause allows the States wide latitude, [citations], and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." Id. By contrast, where a statute targets a "suspect classification" (such as race, alienage, or national origin) which is seldom relevant to any legitimate state interest, or where a constitutional "fundamental right" is assaulted by operation of the legislation, a "strict scrutiny" test (the most rigorous constitutional standard) controls, and the enactment "will be sustained only if [it is] suitably tailored to serve a compelling state interest." Id. Finally, where a statute uniquely burdens a "quasi-suspect" class (a categorization such as gender or illegitimacy which, under most circumstances, but not all, does not create a sensible legislative distinction), the intermediate constitutional test of "heightened scrutiny" applies, and such law is presumed invalid unless it is "substantially related to a sufficiently important governmental interest." Id., 473 U.S. at 440-41, 105 S. Ct. at 3254-55. The trial court, in the instant case, posited that homosexuals comprise a "quasi-suspect" class and, accordingly, applied the intermediate "heightened scrutiny" standard to the equal protection analysis of the Amendment. Equality II, 860 F.Supp. at 434-40. In declaring this novel ruling, the lower court in the instant case misconstrued Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841 (1986), wherein the Court mandated that homosexuals possess no fundamental right to engage in homosexual conduct and consequently that conduct could be criminalized. The Bowers Court further directed that the courts should resist tailoring novel fundamental rights. Id., 478 U.S. at 195, 106 S. Ct. at 2846. Since Bowers, every circuit court which has addressed the issue has decreed that homosexuals are entitled to no special constitutional protection, as either a suspect or a quasi-suspect class, because the conduct which places them in that class is not constitutionally protected.17 The court below distinguished Bowers and its progeny by postulating that the Amendment does not create a conduct- based classification, but instead demarcated a status-based categorization. The trial court found that gays, lesbians, and bisexuals are not identified by any particular conduct; to the contrary, they are distinguished by their "sexual orientation," which references an innate and involuntary state of being and set of drives.18 Equality II, 860 F.Supp. at 440. From this perspective, the Amendment uniquely affected individuals belonging to a discrete segment of society on the basis of their status as persons oriented towards a particular sexual attraction or lifestyle. See id. at 436-37. Assuming arguendo the truth of the scientific theory that sexual orientation is a "characteristic beyond the control of the individual" as found by the trial court, see id. at 437, 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. Those persons having a homosexual "orientation" simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable "on sight" unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or self-proclamation of homosexual tendencies), they cannot constitute a suspect class or a quasi-suspect class because "they do not [necessarily] exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group[.]" Bowen v. Gilliard, 483 U.S. 587, 602, 107 S. Ct. 3008, 3018 (1987). Those persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual. Indeed, from the testimony developed by the record (including that of the plaintiffs' expert psychologist, Dr. John Gonsiorek, who attested that most people either engage in sexual behavior which is consistent with their sexual orientation or engage in no sexual activity at all), this court concludes that, for purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct. See, e.g., Ben- Shalom v. Marsh, 881 F.2d at 463-64 (although individual exceptions may exist, a lesbian orientation is compelling evidence that the plaintiff has engaged in homosexual conduct and likely will do so again, and consequently a regulation which classifies lesbians does not categorize merely upon status but also upon the reasonable inferences perceived from probable past and future sexual conduct).19 Therefore, Bowers v. Hardwick and its progeny command that, as a matter of law, gays, lesbians, and bisexuals cannot constitute either a "suspect class" or a "quasi-suspect class," and, accordingly, the district court's application of the intermediate heightened scrutiny standard to the constitutional analysis of the Amendment was erroneous. In the alternative, the district court pronounced that the Amendment had denied the plaintiffs their purported "Fundamental Right to equal participation in the political process," which asserted constitutional deprivation triggered review under the highly demanding "strict scrutiny" standard. Equality II, 860 F.Supp. at 430-34. Because the Amendment foreclosed Council from legislating future preferential treatment for homosexuals, the trial court concluded that homosexuals had been deprived of their right to petition the municipal legislative forum for enactments designed to protect and advance their collective agenda. The court below erroneously fashioned this innovative right20 from three Supreme Court decisions: Hunter v. Erickson, 393 U.S. 385, 89 S. Ct. 557 (1969); Gordon v. Lance, 403 U.S. 1, 91 S. Ct. 1889 (1971); and Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S. Ct. 3187 (1982). In Hunter, the Court strictly scrutinized, and struck down, a voter-adopted amendment to the Akron City Charter which foreclosed the city council from legislating any race-based prohibition against discrimination in private housing without the prior authorization of a majority of the voters. The Hunter opinion was anchored in the "suspect classification" of race, not in any averred fundamental right to lobby the City council for favorable legislation. Hunter, 393 U.S. at 391-92, 89 S. Ct. at 561. See James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331 (1971);21 Arthur v. City of Toledo, 782 F.2d 565, 573 n.2 (6th Cir. 1986). Likewise, Washington v. Seattle School District No. 1, in which the high Court invalidated a state voter approved initiative which was designed to preclude bussing of students to achieve racial desegregation, turned upon a suspect racial classification. Washington, 458 U.S. at 48487, 102 S. Ct. at 3202-4. See also Arthur, 782 F.2d at 573 n.2, 574. Finally, Gordon v. Lance involved the recognized fundamental right to vote,22 not an all-inclusive asserted right to participate fully in the political process. Cf. Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir. 1993) (ruling that, unlike voting, the "right" to sign an initiative petition, and the "right" to obtain certification of a proposed initiative, are not fundamental, thereby deciding by necessary implication that non-voting forms of political activity are not categorically fundamental). The instant Amendment deprived no one of the right to vote, nor did it reduce the relative weight of any person's vote. Pursuant to the Amendment, homosexuals remained empowered to vote for City Council members and to lobby those Council members concerning issues of interest. The only effect of the Amendment upon Cincinnati citizens was to render futile the lobbying of Council for preferential enactments for homosexuals qua homosexuals because the electorate placed the enactment of such legislation beyond the scope of Council's authority. See Hunter, 393 U.S. at 392, 89 S. Ct. at 561. The Amendment does not impair homosexuals and other interested parties from seeking to repeal the Amendment on another day through the same political process by which Issue 3 became law -- the charter amendment procedure. In addition, gays, lesbians, and bisexuals may seek relief through other political avenues and fora, such as the Ohio state legislature or the United States Congress. As the realization of their political agenda is not constitutionally guaranteed, the narrow restriction created by the Amendment upon the political avenues available to the unidentifiable and non-protected class of homosexuals and their allies respecting a narrow spectrum of substantive issues clearly does not rise to constitutional dimensions. Those who opposed Issue 3 simply lost one battle of an ongoing political dispute. The district court directed that the Amendment impermissibly burdened the plaintiffs' First Amendment rights of free speech and association, and their right to petition the government for redress of grievances. Equality II, 860 F.Supp. at 444-47. This reviewing court rejects that conclusion. The Amendment erected no official obstacle to the exercise of anyone's free speech or free association rights. The Amendment's forbearance from prohibiting private citizen discrimination against homosexuals for public homosexually oriented speech or association is constitutionally nonproblematic because the First Amendment prohibits only governmental burdens upon speech and association; it does not command the government to insulate any person from the effects of private action resulting from the exercise of free speech or association rights.23 See, e.g., United States v. Kokinda, 497 U.S. 720, 725, 110 S. Ct. 3115, 3119 (1990) (private businesses enjoy absolute freedom from First Amendment constraints); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S. Ct. 1558, 1564 (1986) (the First Amendment by its terms applies only to governmental action). Finally, the plaintiffs' right to petition the government for redress of grievances has not been violated, because, as already discussed, gay, lesbian, and/or bisexual access to Council and to other political avenues and fora has not been obstructed. Because the Amendment implicated no suspect or quasi- suspect class and burdened no fundamental right, the "rational relationship" test (which dictates that the legislation must stand if it is rationally related to any legitimate state interest) is the appropriate standard by which the constitutionality of the Charter Amendment should be judged. See City of Cleburne, supra. Under this highly deferential standard, social or economic legislation must be affirmed "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Federal Communications Commission v. Beach Communications, Inc., _____ U.S. _____, 113 S. Ct. 2096, 2101 (1993). The party challenging the rationality of legislation bears the burden of negating every conceivable basis for the act, regardless of whether or not such supporting rationale was cited by, or actually relied upon by, the promulgating authority.24 Id. at 2102. In reviewing the justifications for a legislative enactment, the court may not "sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." Heller v. Doe by Doe, _____ U.S. _____, 113 S. Ct. 2637, 2642 (1993), quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2517 (1976) (per curiam). The trial court also erroneously ruled that the Amendment did not rationally relate to any permissible public purpose. Equality II, 860 F.Supp. at 440-44. However, to the contrary, the Amendment potentially furthered a litany of valid community interests. It encouraged enhanced associational liberty on the part of Cincinnati residents respecting the sexual orientation issue by eliminating exposure to the punishment mandated by the Human Rights Ordinance against certain persons who elected to disassociate themselves from homosexuals. The Amendment repealed an official municipal policy judgment respecting homosexuality, erstwhile conveyed via the Human Rights Ordinance and the Equal Employment Opportunity Ordinance, thus returning the municipal government to a position of neutrality on the issue.25 Additionally, the measure reduced governmental regulation of the private social and economic conduct of Cincinnati residents, and augmented the degree of personal autonomy and collective popular sovereignty legally permitted concerning deeply personal choices and beliefs which are necessarily imbued with questions of individual conscience, private religious convictions, and other profoundly personal and deeply fundamental moral issues. In turn, this public dichotomy decreased municipal supervision of private conduct, which necessarily may result in some cost savings for the City's taxpayers. These values, and others, were at least arguably advanced by the Amendment, and therefore, irrespective of this court's view of the desirability of the Amendment as a matter of public policy, this court cannot say that the Amendment was not rationally related to a legitimate state objective. Accordingly, it infringes no constitutionally protected right and may stand as enacted. The lower court also invalidated the Amendment by theorizing that it was unconstitutionally vague, because it affected only special legal protection for "gays, lesbians, and bisexuals," whereas the Human Rights Ordinance had erstwhile protected all persons based upon their sexual orientation. The district court found that plaintiff H.O.M.E. and other private employers in the City were confronted by a hiring dilemma as a result of a purported ambiguity inherent in the Amendment. Equality II, 860 F.Supp. at 447-49. Initially, it is noted that plaintiff H.O.M.E. is without standing to assert its argument because it has suffered no actual or imminent injury by the implementation of the Amendment, nor do its assertions present a case in controversy. See Allen v. Wright, 468 U.S. 737, 750- 51, 104 S. Ct. 3315, 3324 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 102 S. Ct. 752, 759 (1982). Rather, H.O.M.E. has merely asserted an abstract hypothetical scenario and conjectured that it was unable to determine if the employment of a homosexual, lesbian, or bisexual because of his or her sexual orientation would be civilly or criminally actionable under the Human Rights Ordinance as anti- heterosexual discrimination. Moreover, even if H.O.M.E. had standing below, the vagueness issue has been rendered moot by Council's March 8, 1995 amendment to the Human Rights Ordinance (per Ordinance No.66-1995) which struck all references to "sexual orientation" from the legislation. At the present time, the City's municipal ordinances provide no protection against private discrimination to any citizen by reason of sexual orientation, irrespective of whether that orientation is heterosexual, homosexual, lesbian, or bisexual. See, e.g., Mosley v. Hairston, 920 F.2d 409, 414 (6th Cir. 1990). Accordingly, the judgment below in favor of the plaintiffs is hereby REVERSED, and the district court's permanent injunction against implementation and enforcement of Amendment XII is hereby VACATED. Because the plaintiffs are no longer the prevailing parties in this litigation, the lower court's award of costs (including attorneys' fees) in their favor and against the City is hereby VACATED in its entirety. Lewis v. Continental Bank Corporation, 494 U.S. 472, 483, 110 S. Ct. 1249, 1256 (1990); Clark v. Township of Falls, 890 F.2d 625, 626-28 (3rd Cir. 1989). This cause is hereby REMANDED to the district court for entry of judgment in favor of the defendants, and for such further necessary and appropriate proceedings and orders as are consistent with this decision. U.S. District Court Opinion: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION EQUALITY : FOUNDATION OF : GREATER : CINCINNATI, INC. : et al., : C-1-93-773 : Plaintiffs, : ORDER ISSUING : PERMANENT INJUNCTION v. : : THE CITY OF : CINCINNATI, : : Defendant. : This matter is before the Court for decision following a bench trial conducted on June 20-24, 1994. In rendering our decision on this matter, we have considered the testimony of the witnesses, the documents admitted into evidence, the Intervening Defendants' Proposed Findings of Fact and Conclusions of Law (doc. 59), the Plaintiffs' Proposed Findings of Fact and Conclusions of Law (doc. 60), the Defendant's Post Trial brief (doc. 75), the Intervening Defendants' Supplemental Proposed Findings of Fact and Conclusions of Law (doc. 77), the Plaintiffs' Supplemental Proposed Findings of Fact and Conclusions of Law (doc. 78), and the briefs of Amici Curiae, the Ohio Human Rights Bar Association (doc. 12), the Ohio Psychological Association (doc. 14), and the Ohio Attorney General's Office (doc. 80).26 In weighing the testimony of the witnesses, we considered each witness' relationship to the Plaintiff or to the Defendant; their interest, if any, in the outcome of the trial; their manner of testifying, particularly where they testified in Court; their opportunity to observe or acquire knowledge concerning facts about which they testified; and the extent to which they were supported or contradicted by other credible evidence. Under Fed.R.Civ.P.52, we have set forth our findings of fact and conclusions of law below. The following decision represents the culmination of at least one phase of an emotional, highly controversial and hotly contested law suit. Both sides have been represented by extremely competent and thoroughly prepared attorneys who presented their respective cases forcefully and persuasively. In light of the nature of this case, it is to their credit that the trial on the merits proceeded in accordance with the highest spirit of cooperation and consideration for each other and the Court. Before rendering our decision, however, we must make a few things clear. In voiding the Issue 3 Amendment, this Court is in no way giving any group any rights above and beyond those enjoyed by all citizens. To the contrary, we are simply, but crucially, preventing one group of citizens from being deprived of the very rights we all share. Furthermore, nothing in this Order should be construed in any way as impugning the integrity or motives of those who voted in favor of the passage of the Issue 3 Amendment. Likewise we are not in any way depriving anyone of the right to vote, nor are we undermining the importance of that vote. Rather, this Order merely explores the permissible scope of governmental legislation under the Constitution. And despite the fact that a majority of voters may support a given law, rights protected by the Constitution can never be subordinated to the vote of the majority. While at times this may seem unfair, especially when deeply emotional issues are involved, indeed it is the fairest, and most deeply rooted, of all of this Nation[']s rich traditions. It is in this vein that we make the following ruling. INTRODUCTION In 1991 and 1992, by majority vote, the Cincinnati City Council enacted the following ordinances aimed at eradicating certain discriminatory practices within the City of Cincinnati: Cincinnati City Ordinance No. 79-1991 ("Equal Employment Opportunity Ordinance" or "EEO"), and Cincinnati City Ordinance No. 490-1992 ("Human Rights Ordinance" or "HRO"). The EEO prohibits discrimination based upon sexual orientation in city employment and in appointments to city boards and commissions. Discrimination based upon sexual orientation, whether it be heterosexual, gay, lesbian, or bisexual, is prohibited by this ordinance. The EEO also prohibits discrimination based on race, color, sex, disability, religion, national or ethnic origin, age, HIV status, Appalachian regional ancestry, and marital status. The HRO prohibits discrimination based upon sexual orientation, in the areas of private employment, public accommodations and housing. Discrimination based upon sexual orientation, whether it be heterosexual, lesbian, gay or bisexual, is prohibited by this ordinance. The Human Rights Ordinance provides exemptions for fraternal and religious organizations and expressly prohibits use of the ordinance to create "affirmative action program eligibility." Like the EEO, the HRO also prohibits discrimination based on race, color, sex, disability, religion, national or ethnic origin, age, HIV status, Appalachian regional ancestry, and marital status. The HRO provides civil and criminal penalties for violators of its provisions.27 It also includes a severability clause.28 Largely in response to the enactment of the HRO, a group of individuals formed an organization called "Take Back Cincinnati," which later changed its name to "Equal Rights Not Special Rights." The group organized for the purpose of gathering the signatures sufficient to place on the ballot at the next general election, a proposed amendment to the Charter of the City of Cincinnati. As a result of their efforts, the proposed charter amendment, which became known as Issue 3, was placed on the November 2, 1993 ballot. Issue 3 provides in full: ARTICLE XII NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS. The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment. This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect. The campaign for Issue 3 was waged by its proponents largely on the theme of repealing "special rights" for homosexuals. Issue 3's proponents employed the use of, among other things, mailings, television and radio ads and speeches. The theme of gays as pedophiles and homosexuality as simply a matter of "who one chooses to have sex with"29 were far from absent from the campaign. The Plaintiffs['] campaign was waged with no less vigor, the most notorious aspect being their ubiquitous "Hitler-KKK- McCarthey" billboards appearing throughout the City. After a bitter and often inflammatory campaign, the voters of Cincinnati approved the measure by a vote of approximately 62% to 38%. On November 8, 1993 the Plaintiffs filed this law suit challenging the constitutionality of Issue 3. The Plaintiffs allege that Issue 3 violates their rights to equal protection, free speech, free association and redress of grievances guaranteed by the First and Fourteenth Amendments to the United States Constitution. They also claim that Issue 3 is unconstitutionally vague. With respect to their equal protection claims, they maintain that they belong to a suspect or quasi-suspect class, thus requiring strict or heightened judicial scrutiny of Issue 3. Strict scrutiny is also necessary, according to the Plaintiffs, because Issue 3 violates their constitutional right to equal access to the political process. They further maintain that Issue 3 is unconstitutional under any equal protection standard of review because it is not even rationally related to any legitimate government process. The Plaintiffs have filed this suit under 42 U.S.C. § 1983. On the other hand, the Defendants maintain that there is no "fundamental right to equal participation in the political process" nor are the Plaintiffs members of a suspect or quasi-suspect group. Thus, they claim, Issue 3 need not be subjected to strict or heightened scrutiny, but rather only rational basis review. The Defendants have presented several governmental interests they claim Issue 3 furthers, and which, they maintain, are sufficient to survive review under any of the equal protection standards. For example, the Defendants claim that Issue 3 serves the governmental purposes of saving scarce resources and reducing the level of governmental regulation imposed upon the citizenry. They also claim that Issue 3 promotes diversity of thought and allows different groups in the community to hold divergent views on this question by "not imposing a uniform, doctrinaire view concerning the moral relevance of homosexual behavior on all segments of the community." The Defendants further claim that Issue 3 gives legal effect to Cincinnati's collective notion of morality, and also serves to protect and nurture the nuclear family. Additionally, the Defendants maintain that Issue 3 advances democracy and political integrity by allowing the citizens to make this important decision for themselves and preserves their ability to define and limit the powers of their elected representatives. Issue 3, the Defendants contend, is simply a legitimate restriction on the scope of the City Council's powers to deal with certain issues of public importance. Finally, the Defendants claim that Issue 3 does not infringe any First Amendment Rights, nor is it unconstitutionally vague. In short, the Defendants assert that Issue 3 does not impose any impermissible burdens on gays, lesbians and bisexuals.30 Following a contested evidentiary hearing, this court issued a preliminary injunction on November 16, 1993 prohibiting the implementation of Issue 3. A written opinion followed on November 19, 1993, see Equality Found. v. City of Cincinnati, 838 F. Supp. 1235 (S.D. Ohio 1993) ("Equality" or "Order"). The findings of fact set out in that opinion are hereby adopted and fully incorporated into this decision. The testimo