Laserfiche WebLink
If someone could demonstrate that the proposed amendment awards a preference <br /> rather than leveling the playing field, such a demonstration would accomplish very little. <br /> For opponents of the proposed amendment to obtain strict scrutiny analysis, they would <br /> have to show that there is a suspect class involved. It goes without being said that neither <br /> landlords and employers nor non-GLBT tenants and employees form suspect classes. <br /> There is no immutable characteristic like race or alienage that binds such people together. <br /> Obviously, in light of Croson, the more important question to ask is whether <br /> GLBT persons are likely to be identified as a'suspect class. If they are—and if the <br /> proposed amendment granted a preference—then landlords and employers might be able <br /> to formulate an argument that if they follow the Ordinance as amended, then their non- <br /> GLBT tenants and employees will be denied equal protection. While such an argument <br /> seems far fetched, it seems even more far fetched to suggest that an opponent to GLBT <br /> rights would advance such an argument. The last thing the opponents to this proposed <br /> amendment want to do is open the door to a finding that GLBT persons are a suspect <br /> class because, as discussed below, such a finding would actually benefit GLBT persons <br /> in fixture cases where GLBT persons claimed a violation of equal protection. <br /> To date,no federal court has been willing to find that GLBT persons are a suspect <br /> class. In Romer v. Evans, 517 U.S. 620 (1996), the United States Supreme Court could <br /> easily have made this determination, but the Court side-stepped the issue. Post-Romer, <br /> the Sixth Circuit, when faced with the constitutionality of a referendum reversing a gay <br /> rights amendment to an ordinance, specifically ruled that GLBT persons are not a suspect <br /> class. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d <br /> 289 (6th Cir. 1997). <br /> It is simply not clear what the United States Court of Appeals for the Seventh <br /> Circuit, which has jurisdiction over causes appealed from Federal District Courts in <br /> Indiana, would.do if it was forced to address the question of whether GLBT persons form <br /> a suspect class for equal protection purposes. Prior to Romer, the Court stated, "[t]here <br /> can be little doubt that homosexuals are an identifiable minority subjected to <br /> discrimination in our society." Nabozny, 92 F.3d at 457. In Nabozny, the Court <br /> addressed claims of a gay high school student who alleged that he had been denied equal <br /> protection of the laws after his school refused to prevent or remedy severe bullying by <br /> other students. The Court found that there was "no conceivable state of facts that would <br /> provide a rational basis for the [school's] conduct."Id. at 458. In other words, the <br /> school's lack of action was so reprehensible that it could not even survive a"rational <br /> relationship"challenge. The Court noted that the particular context of the equal <br /> protection claim before it did not require the Court to express an opinion as to whether <br /> sexual orientation is an "obvious, immutable, or distinguishing" characteristic deserving <br /> of strict or heightened scrutiny in equal protection'analysis.Id. Nevertheless,the Court <br /> stated, "it does seem dubious to suggest that someone would choose to be homosexual, <br /> absent some genetic predisposition, given the considerable discrimination leveled against <br /> homosexuals."Id. <br /> 13 <br />