03-26-12 Council Agenda & Packet

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When a landlord or employer making a freedom of association challenge fails to demonstrate that his business is an expressive association,then a court will have no need.to scrutinize the situation further. There would be no First Amendment violation. The idea of "compelling governmental interest"would:never be raised. C. Equal protection The Equal Protection Clause of the Constitution forbids discrimination. Therefore, if the Council were to pass a law that discriminates against people based upon the color of their skin or their ethnic origin, it would have to show that it had a"compelling governmental interest"for doing so. But this ordinance does no such thing. In fact, it does just the opposite: it outlaws discrimination. If challenged, the City would only have to show that it wanted to stop discrimination against those who work or rent property in South Bend. It is unclear what the basis for an equal protection challenge would be or who would bring such a challenge. In other words it is not apparent that any identifiable group of employees or tenants would be harmed if discrimination a ainst GLBT persons were prohibited. Contrary to the assertions of opponents of the amendment, the amendment does not grant"special rights" or privileges to GLBT persons. That argument gets it backwards. The amendment removes special disabilities by preventing discrimination, thereby leveling the playing field in employment and housing. Accordingly, an equal protection challenge—let alone an equal protection challenge that would require proof of a compelling governmental interest—could not succeed. According to the United States Supreme Court: The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws,"which is essentially a direction that all persons similarly situated should be treated alike. Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congressional direction, the courts have themselves devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that le i_slation is presumed to be valid and will be sustained if the classification drawn by the statue is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that the laws grounded in such considerations are deemed to reflect prejudice and antipathy --a 4