October 29th, 1997 to November 4th, 1997

National Roundup

by P.J. Engelbrecht

Cincinnati's anti-gay Issue 3 upheld by federal appeals court
A three-member panel of the Sixth U.S. Court of Appeals upheld an amendment to Cincinnati's city charter which bars all specific protections for lesbians and gays, passing judgment Oct. 23. If the ruling stands, the City Council will be unable to legislate against discrimination on the basis of sexual orientation, and previous lesbigay rights protection under the Equal Employment Opportunity ordinance would be overturned, according to the Cincinnati Post.

"We think this decision is totally wrong," said Alphonse Gerhardstein, an attorney with the Equality Foundation of Greater Cincinnati, which has fought Issue 3.

"Upholding Issue 3 is simply indefensible" considering the Supreme Court position on a similar Colorado case, said lawyer Pat Logue of the Lambda Legal Defense and Education Fund. On the other hand, Phil Burress, chair of Equal Rights Not Special Rights, declared the decision "a major victory for the people of Cincinnati," saying his group is anxious for the inevitable appeal, because they feel "confident" that a Supreme court victory would "establish once and for all that local residents have the right to stop special rights based on sexual behavior."

The Sixth Circuit Appeals Court had previously affirmed Issue 3 in 1995, after a lower court had rejected the measure for violating the constitutional guarantees of equal protection, free expression and due process for gay men and lesbians. But last year, the Supreme Court reviewed the Appeals Court verdict and "threw out that decision and ordered the appeals court to reconsider the case in light of the high court's ruling against Colorado's anti-gay [Amendment 2]" in Romer vs. Evans, because the high court perceived the two measures to be effectively identical. As happened in Colorado, voters in Cincinnati approved the homophobic 1993 measure "amid a nationwide campaign by right-wing extremists."

With the current decision, Sixth Circuit judges have produced a "renegade ruling," said Logue, Midwest Regional Managing Attorney for Lambda, which mounted the legal challenge to Issue 3 on behalf of the Equality Foundation of Greater Cincinnati, along with two Ohio attorneys and the ACLU. Lambda staff attorney Suzanne Goldberg contended that "the Supreme Court relegated such anti-gay ballot initiatives to history's trash heap [with Romer]. Unfortunately, the Sixth Circuit failed to understand that." The lower court held that "the charter amendment [is] constitutional and does not 'disempower' gays" and that the Issue 3 case "is not similar to" Romer.

Logue noted that the Supreme court has already found that "anti-gay animus [is] not a permissible basis" for crafting burdensome, discriminatory legislation. The Sixth Circuit Appeals panel stated that Issue 3 "merely prevented homosexuals, as homosexuals, from obtaining special privileges and preferences ... from the city" and cited merely "local" scope and voter interest in cost-savings as rationales for upholding the measure. Yet of the similar Colorado law, Supreme Court Justice Anthony Kennedy wrote in the majority opinion, "we find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society."

So far, Issue 3 has never become effective, due to court-ordered injunctions. Lambda Legal Director Beatrice Dohrn said that "Lambda, our client, and co-counsel will look closely at whether we again will appeal to the Supreme Court or to the full Sixth Circuit."

Outed Utah lesbian coach sues school district over 'gag order'
Spanish Fork High School teacher Wendy Weaver was ordered in July not to talk about her lesbianism with students, parents or school staff members, either on campus or off, on penalty of losing her teaching position, and she was dismissed from her duties as girls' volleyball coach, after a student asked Weaver whether she was a lesbian and received an honest answer, according to the Salt Lake Tribune.

Weaver's volleyball team had won the Utah state championships four times, including back-to-back triumphs in 1993 and '94.

"In all my years of service to the school district, I've never done anything to deserve this," Weaver told The Los Angeles Times. "I'm not ashamed of my sexuality and I believe they are discriminating against me because of that."

Last week, Weaver filed suit in U.S. District Court in Salt Lake City, charging the Nebo School District and administration co-respondents with violating her Constitutional rights to free speech, privacy and equal protection. The ACLU is backing Weaver's claim that "the ban was so broad that it restrains private conversations at any time and any place."

Such anti-gay activity is not new in Utah. Last year, the state legislature passed a law permitting local school boards to ban all school clubs to enable them to disallow lesbigay student groups without violating Federal regulations, banning youth groups that "involve human sexuality" in the same breath as they forbid clubs that "materially or substantially encourage criminal or delinquent conduct [or] promote bigotry." (Queer youth have continued to meet by renting space.)

The Utah chapter of the Gay Lesbian Straight Education Network is supporting Weaver. "Every American should be greatly concerned about this case," said GLSEN spokesperson Kevin Jennings. "What's happening to Wendy isn't new-thousands of lesbians and gays live by these rules every day, only they are unspoken. But the school authorities had the temerity to put these rules in writing and demand that Wendy sign away her constitutional rights if she wished to keep her job. ... I believe the name Wendy Weaver may someday be mentioned in the same breath as that of Rosa Parks ... [because] Wendy Weaver has refused to give up her seat ... at the table of our Constitution."

School district officials declined to comment on the pending litigation; director of human resources Almon Mosher told The Los Angeles Times only that "We expect our teachers to teach curriculum. We don't expect them to bring personal matters into the classroom." Mosher added somewhat disingenuously, "Since this is a personnel issue, we have to protect [Weaver's] privacy. So we're a little bit at her mercy right now. She can say what she wants. We can't."

In a civilian version of "don't ask, don't tell," the Nebo, Utah school district issued a personnel file memo demanding psychology and phys ed teacher Weaver "not ... make comments, announcements or statements to students, staff members or parents of students regarding [her] homosexual orientation or lifestyle." Though she initially resisted, Weaver was eventually pressured into signing the memo. The memo also instructed Weaver that "If students, staff members or parents of students ask about your sexual orientation or anything concerning the subject, you shall tell them that the subject is private and personal and inappropriate to discuss with them." A similar memo was presented to her ex-husband, a school psychologist. Since Weaver went public with her lawsuit, she has received support from colleagues, students and friends alike.

Weaver, 40, and her partner Rachel Smith, 33, met a year ago and moved together into their Salem, Utah home in April, after Weaver was divorced. The women met at a volleyball match. Both have "always" known they were gay, but deep convictions to the Mormon church and their children, seven between them, kept them in their marriages-Weaver, for 17 years. They remain friendly with their ex-husbands, with whom they share joint custody of the children, whose ages range from three to 12. However, the couple has left the Church of Jesus Christ of Latter-Day Saints, which condemns homosexuality.

Weaver and Smith are chagrined by the wide publicity the suit has attracted, but Weaver still thinks she made the right decision when she told that student about her sexual orientation. On learning of Weaver's lesbianism, the student had quit the volleyball team, saying she did not want to be "exposed to" homosexuality. Tired by the struggle, Weaver said she wasn't sure whether she'd go back to coaching even if she had the chance; her ouster was eased by the two-year lay-off immediately preceding it, when she was pursuing a Master's degree.

"Throughout this process, neither Rachel nor I have ever considered ourselves activists. Was I prepared for this? I might have been prepared for this, but I don't know if I wanted the whole nation to know I'm a lesbian," Weaver remarked. And yet "Kids need real people to look up to," in Weaver's view. "They are looking for adults who will be honest with them."

Not everyone's reaction has been hostile: locals playing pool at a senior citizens' center know about Weaver's debacle. "I knew her about 15 years ago just from looking at her. I don't know why they're making such a big deal about it," said Joe Nielsen. "Here she's been all those years. I just can't figure it out."

So. Carolina prosecutor comes out, faces porn inquiry
Solicitor David Schwacke, chief prosecutor in Charleston and Berkeley counties, "may be the first announced homosexual to hold political office in South Carolina," the Charlotte Observer reported mid-month. Schwacke came out after Republicans "accused him of using solicitor's office computers to download pornography off the Internet." An investigation is in progress.

Schwacke denies the charges and insists he will not resign from office, despite conservative GOP pressure. The second-term prosecutor says he "just wants to do his job" and "does not want to be a pioneer for gay rights." Sodomy laws remain on the books in South Carolina.

Gay families 'healthier'
"Gay and lesbian families ... consistently scored as the healthiest and strongest of all the [family] structures studied" by the Minnesota Family Strength Project, which surveyed over 2,000 families, examined a 400-family sample in depth to learn about "diverse families" and conducted ethnic-based focus groups. Traditional heterosexual families scored second highest, behind lesbians and gays; cohabiting heterosexual couples "scored as the least strong families," Focus Point reported on Oct. 22. Researcher Judy Watson Tiesel suggested that "perhaps same-sex couples, in their struggle to adapt in a relatively hostile culture, have developed certain strengths-better communication skills or support systems for example." Other results: respondents scored their own families as stronger than their families of origin by a wide margin; families considering themselves strong "include almost twice as many members as less strong families," and families broadly self-defined, such as those including pets or friends in the unit, consistently score themselves as strong. The Minneapolis Star-Tribune printed study results the day they were released--but omitted the specific data about gay and lesbian families.

San Fran offers 'morning after' HIV cocktails
San Francisco became the nation's first city to offer "controversial 'morning-after cocktails' to people trying to avoid HIV infection," according to the Oct. 14 San Francisco Examiner. The drugs will be available through a UCSFCenter for AIDSPrevention study examining "the risks of providing such therapy after exposure" to HIV.

However, the study will not draw conclusions on whether such treatment is actually effective, and Golden Gate ACT UP activists are concerned that public access to the "morning-after" treatment may be "misleading ... filling [people] with false hope."

Suicide law wins highest round
The U.S. Supreme Court "removed the last legal obstacle ... to Oregon's law allowing physician-assisted suicide" on Oct. 14, by rejecting without comment an appeal from a lower court ruling ordering the dismissal of the lawsuit that had kept the law tied up in Federal court since shortly after its adoption three years ago, reports The New York Times. The law will also be subject to a second citizen referendum concluding Nov. 4; the law originally passed by the narrow margin of 51% to 49%, and polls show the repeal effort is likely to fail. When enacted, the measure permits mentally competent but terminally ill adults (with less than six months to live) to "receive lethal doses of medication after consulting with two doctors and waiting 15 days, reported

Anti-gay activists win right to vote on gay-rights law
Maine opponents of a state anti-discrimination law have collected enough signatures to force a statewide voter referendum on the statute, according to Secretary of State Dan Gwadosky. The law would have taken effect last month, but had been put on hold, pending repeal efforts; it would outlaw discrimination against gays and lesbians in housing, public accommodations, credit and employment. The UPI reported Oct. 20 that the 58,750 names submitted on petitions last month exceeds the required number by 7,000. The leader of Maine Won't Discriminate, Pat Peard, said that an appeal would have to be filed by Monday. Michael Heath, head of the Christian Civic League of Maine, expressed certainty that the law would be "wiped off the books." Analysts think Maine sentiment is "evenly split" on the issue.

ENDA gets hearing in Senate

by Bob Roehr

The Senate hearing on the Employment Non-Discrimination Act (ENDA) Oct. 23 was a bit anti-climactic. There was none of the tension that filled the room three years earlier. In fact, the right-wing opposition canceled their scheduled slots to testify and simply melted away.

"This bill is about one simple thing-that all Americans should be able to earn a livelihood," said Labor and Human Resources chairman Jim Jeffords, R-Vermont, in his extended opening remarks. He outlined three significant changes to ENDA, prompted by debate last year. One protects privacy by prohibiting the Equal Employment Opportunity Commission from collecting or seeking data on sexual orientation from companies on their employees.

A second "precludes the EEOC from entering into a consent decree that includes quotas, or gives preferential treatment based on sexual orientation." Finally, it clarifies the religious exemption, limiting coverage to "for-profit" operations.

"I expected that we would have witnesses yearning for the chance to testify in opposition to the bill. In fact, I have been told that my staff scoured the country for witnesses with differing opinions, to no avail. Even those who had expressed a desire to testify changed their mind." Among the late scratches was Andrea Sheldon of the Traditional Values Coalition.

Jeffords said only half in jest, "I know that we have made a number of improvements to address the criticism of the 104th Congress, I guess I just didn't realize how thoroughly successful we were."

He also released a report, prepared at his request by the General Accounting Office, which examined the experience of states that have passed gay-rights protections. It found "there have been relatively few formal complaints of employment discrimination based on sexual orientation, either in absolute numbers or as a percentage of all employment discrimination complaints in the state ... (and) no indication that these laws have generated a significant amount of litigation."

Sen. Ted Kennedy, D-Mass., said "the evidence of bigotry in the workplace is overwhelming and irrefutable." He called ENDA "part of America's fundamental commitment to equal opportunity in the workplace."

"To those who say ENDA does not reflect traditional American values, I say you are wrong. Bigotry is not an American value. This legislation is based on fairness, justice, and equal opportunity for all who are qualified. Those are our country's basic values-bigotry is not."

The first two witnesses told personal stories of discrimination. Kendall Hamilton had worked for the Red Lobster restaurant chain for five years and was about to step into management. Then his supervisor told him that his sexual orientation "was not compatible with Red Lobster's belief in family values." And he was hounded from his job.

David Horowitz had a strong track record working for the Attorney General of Arizona. He was recruited for the job of Mesa City Prosecutor and talk had proceeded to the point of negotiating a starting date. Then he told his prospective boss that he was gay. "Well, we may have a problem with that," came the response. A form letter followed two weeks later saying they had hired someone else.

Horowitz said that before he came out, "I was not capable of doing my finest work because I was not in a position where I didn't have to worry, every day, whether or not someone would find out where I was and who I was with."

"My mother begged me not to come out at work because she was afraid that I would lose my job and we would lose our house. ... The impact of discrimination is completely demoralizing"

Big business was represented by Raymond Smith, CEO of Bell Atlantic. The 140,000-employee company added sexual orientation to its EEO Policy in 1993. "We don't put employs in categories other than good performers and bad performers." He noted that 320 of the Fortune 500 largest corporations offer similar protection. Many are adding domestic-partners benefits.

"The policies of the corporation are so clear that we haven't had any court cases" involving sexual orientation, said Smith. "Eternal vigilance and a constant statement of zero tolerance makes that important. I believe ENDA will help us in this regard."

Tom Grote, the chief operating officer of Donatos Pizza, spoke for small business. The Columbus, Ohio-based regional company has expanded from 10 to 125 restaurants since 1986 when Grote and his sister finished college and went back to work full-time at the family-owned business. "Our mission at Donatos is to promote goodwill through product, principle and people. We have always tried to be fair and honest and treat everyone the way we would like to be treated," said the member of Log Cabin Republicans.

"Even though we are a small business, we do not believe that ENDA will hurt our business. We already operate under the Civil Rights Act of 1964, the Americans with Disabilities Act and other laws and regulations that govern fair and equal treatment in the workplace.

"I am gay," said Grote. "I'm fortunate because my father would never fire me because I'm gay, I have wonderful job security. Unfortunately there are thousands of people who cannot say the same thing, who are afraid for their jobs."

Just past the one-hour mark the hearing came to an abrupt close before the remaining witnesses could be heard. Senate Democrats, in an effort to move campaign finance reform, had invoked a rule limiting the time of all committee meetings while the Senate is in session. Jeffords said he may reschedule hearings if he feels it necessary.

"What is critical is what Sen. Jeffords said at the opening of the hearing, that the opposition didn't show up because there isn't much they can say about the bill," said Winnie Stachelberg, political director of the Human Rights Campaign.

Kevin Ivers, political director of Log Cabin Republicans, lavished praise on other gay groups, particularly HRC, for working together on ENDA. "The purpose of the hearing was to focus our attention on the swing Republicans what we need to pass this bill," he said. The GOP controls the Senate 55-45. Last year ENDA lost 49-50 with almost all of the opposition coming from Republicans. "For the Republicans in particular it is coming down to this," he said, "What side of history are they going to be on? The wrong side or the right side?"

Senate action is not expected until next year.

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