03-26-12 Council Agenda & Packet

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There is nothing in Romer that would prevent the Seventh Circuit from finding that that a classification on the basis of sexual orientation and gender identity is a suspect classification, requiring strict scrutiny analysis. The Sixth Circuit's decision in Equality Foundation does not bind the Seventh Circuit in any way. And Nabozny suggests that some members of the Seventh Circuit might be willing to make the suspect classification finding. Accordingly,those opposed to GLBT rights certainly do not want to present a Crosson-based"reverse"equal protection argument to the Seventh Circuit. If the Seventh Circuit were to find that GLBT persons are a suspect class,it would force South Bend to show a compelling governmental interest in preventing discrimination to have the proposed amendment upheld in this particular case. However, such a funding, while making it harder for South Bend to make its case regarding the proposed amendment, would actually advance the cause of GLBT rights. Opening this door would allow GLBT persons to receive the benefit of the higher standard of strict scrutiny-when challenging a wide variety of governmental actions other than the proposed amendment. The odds against GLBT rights opponents pressing an argument of this nature in an attempt to have the proposed amendment declared unconstitutional appear to be very high.3 3. The proposed amendment would not burden any fundamental rights of landlords or employers. The only other circumstance in which a reviewing Court would apply strict scrutiny analysis to the proposed amendment would be if the Ordinance as amended violated a fundamental constitutional right of a challenging landlord or employer or its tenants or employees. The argument might be that the proposed amendment would violate such entity's or person's First Amendment right to freedom of association. This is unlikely to be a winning argument. a. Intimate associations are not implicated. The United States Supreme Court has identified two types of"freedom of association rights"that the First Amendment protects. The first is the right to "intimate association." This protects "choices to enter into and maintain certain intimate human relationships [without) undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Roberts v. United States Jaycees,468 U.S. 609, 617 (1984). The types of relationships protected here those akin to marriage and family relationships. See, e.g., City of Dallas v Stanglin, 490 U.S. 19(1989) (dance hall patrons not engaged in the sort of intimate human relationships contemplated by Roberts; no constitutionally protected right to "social association"of this sort);Klupt v. City of Chicago, No. 88 C 7528, 1989 3 It is important to emphasize that GLBT persons need not be a suspect class for equal protection purposes to receive the benefit of protection under anti-discrimination laws. The U.S. Supreme Court has never said that either those over 40 or disabled persons were a suspect class, but both of these statuses are protected under anti- discrimination laws at the federal, state, and local level. 14