Last edited: January 01, 2005


Arguing the Legalities of Gay Rights

Does Protecting Homosexuals Limit Religious Freedom?

The Pantagraph, October 28, 2001
301 West Washington St., Bloomington, IL, 61701
Fax: 309-829-8497

By Steve Arney, Pantagraph Staff

BLOOMINGTON—As communities ponder gay rights, the legal path is unclear.

The legal profession rarely is unanimous, and on this issue attorneys are worlds apart.

Two city government attorneys, Todd Greenburg in Bloomington and Steve Mahrt in Normal, say municipalities have a right to enact ordinances that protect lesbians, gay men and bisexuals from discrimination.

Exemptions within such ordinances can (and in Normal’s case, do) protect religious institutions’ freedom of religion, they say.

A group of local attorneys, however, has issued a collective opinion contending that ordinances like Normal’s are unconstitutional and invite costly litigation that cities will lose.

Legal research offers ammunition for both views.

Earlier this month, Normal added gays, lesbians and bisexuals to those protected under its human rights ordinance against bias in housing, employment and public accommodation. Bloomington, meanwhile, is rethinking its 1996 decision to reject a similar gay rights measure.

Its human relations commission plans a fall work session to discuss the matter.

A complex battlefield

The battlefield over gay rights isn’t just about emotions, Christianity, morals, or the debate over whether homosexuality is a normal state of being or a sinful lifestyle choice—although all of the above weave their way into legal arguments.

What hinders all sides is the lack of court decisions directly on point. Of six attorneys interviewed, none was familiar with an Illinois Supreme Court or U.S. Supreme Court case that directly decides the constitutionality of an Illinois community’s protection against sexual-orientation bias.

University of Illinois law professor Elaine Shoben said communities nationwide do have the right to issue such protections and the absence of federal and Illinois laws does not prevent that.

"Nationwide, the leaders in prohibiting sexual discrimination based on sexual orientation have been the cities," said Shoben, who specializes in employment issues.

However, attorneys like John Ashenfelter and Phil Merritt, who are opposed to Normal and Bloomington ordinances, say courts have established criteria to define protected classes. They say gays don’t fit the definition, nor should they.

The heart of their argument doesn’t involve gays themselves; rather, it is the effect laws have on evangelical Christians and orthodox Muslims and Jews who believe homosexuality is morally wrong, they said. The protected exercise of religion doesn’t end after a weekend service, said Merritt.

Gay rights ordinances tell these devout people "don’t try to exhibit religious beliefs during the week," he said.

Civil rights, religious rights

Under Normal’s ordinance, landlords have to rent to gays, bisexuals and lesbians regardless of the landlords’ religious beliefs, and employers of all faiths cannot discriminate against this newly protected class. This, Merritt and Ashenfelter assert, violates the right to exercise religious freedom.

But religious freedom in America doesn’t give a person unlimited right to act on convictions, said Greenburg and Mahrt. To illustrate, Greenburg said, hypothetical examples are easily found.

For example, if a member of the Taliban Islamic movement became a business CEO in the Twin Cities, he would not have the right to fire all women based on his sincere religious belief that women should not work, he said.

Government, said Greenburg, can find a compelling interest to curtail religious practices—the prohibition against human sacrifice being another extreme example.

In Normal, what separates the sexual orientation provision from other protected classes—races, religions and genders—is that it exempts churches and other religious institutions from abiding. In 1996, Greenburg recommended that the Bloomington City Council, if it enacted a sexual-orientation provision, include a similar exemption.

Merritt and Ashenfelter both call the exemption "a sham." For example, they say Normal’s ordinance could require churches to retain gays in jobs such as custodial work, which they view as an infringement.

Pamela Sumners, an attorney for the American Civil Liberties Union, has reviewed Normal’s law as well as an opinion signed by Ashenfelter, Merritt and nine other Twin City attorneys.

She called the opposing lawyers’ opinion "propaganda" that ignores court cases that don’t support their arguments, adding that their fear about church hiring is unfounded.

Sumners cited two examples: A Hawaii case in which a church that owned property was not required to rent to gays and a Kentucky case in which a lesbian counselor at the Kentucky Baptist Children’s Home was fired, a dismissal recently upheld by a federal district court.

Without direct court case authority on an Illinois gay rights ordinance, attorneys look elsewhere for direction on how these ordinances apply.

Look at Colorado, said Sumners. There, Aspen, Boulder and Denver passed sexual-orientation protections. Voters in a statewide referendum then passed "Amendment 2" that said the laws should be stricken and that no government entity could pass similar protections.

In the lawsuit that followed, the U.S. Supreme Court in 1996 sided with the municipalities and gays and nullified Amendment 2.

Ashenfelter countered that the case was about process, not about the legality of a city’s gay rights ordinance, and he said the court’s judgment was questionable.

Conflicting laws?

He and others in his group cite a 1990 Illinois case won by a landlord who refused to rent to an unmarried couple because of moral conviction. It shows a landlord’s right to exercise religious morals, Ashenfelter said, while the Normal gay rights provision forces landlords to permit illegal sexual activity.

Greenburg and Mahrt respond that Illinois dropped its sodomy law years ago. Therefore, they said, gay sexual acts are not illegal and the example does not apply. Ashenfelter said legislative records show the intent was that the state’s fornication and adultery laws are meant to apply to gays and lesbians, even though the statutes define those acts as being between a man and woman.

Further, Ashenfelter and Merritt argue, Normal’s ordinance is in conflict with state and federal laws that do not extend protection to gays and lesbians. To Sumners, the lack of state and federal protection is an argument in favor of the ordinances: municipalities can fill the gap left by larger governments, she said.

Sumners added that religious exemptions work, as demonstrated in the Kentucky Baptist Home case, which the ACLU lost.

To Merritt, that case and others show that religion is, indeed, under attack. In Normal, churches will now conduct what is labeled as illegal behavior with an exemption to their illegal behavior. And in Kentucky, he added, "how much money did they (the Kentucky Baptist Home) have to spend to ‘win?’"

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