Hybrid. Ruth Colker

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СКАЧАТЬ strategy was to get the voters to pass a ballot initiative which would invalidate the Human Rights Ordinance as it applied to individuals who are “homosexual, lesbian, or bisexual.”⁵ (Presumably, it did not invalidate the Human Rights Ordinance insofar as it protected heterosexuals from sexual-orientation nondiscrimination.) The initiative passed by a popular vote of approximately 62 percent in favor and 38 percent opposed and became Amendment XII to the Cincinnati City Charter.

      Six days later, a lawsuit was filed challenging the implementation of the initiative. Plaintiffs prevailed in the trial court and the case was appealed to the Court of Appeals. The lower court found that the initiative penalized gay, lesbian, and bisexual people based on their status as persons oriented toward a particular sexual attraction or lifestyle. In reaching this conclusion, the trial court noted that having the status of being gay, lesbian, or bisexual does not require an individual to engage in any particular conduct. (One can be, after all, a celibate homosexual.) Instead, homosexual status requires an individual to have an “innate and involuntary state of being and set of drives.”⁶ This conduct/status distinction was needed to distinguish the initiative from the sodomy statute unsuccessfully challenged in Bowers v. Hardwick.⁷ In Bowers, the U.S. Supreme Court had ruled that states could constitutionally proscribe homosexual sexual conduct. In order to conclude that the Cincinnati initiative was unconstitutional, the trial court had to be able to conclude that the initiative regulated status rather than conduct.

      The Court of Appeals rejected the trial court’s analysis that the initiative regulated status rather than conduct. It concluded that the initiative could not be discriminating on the basis of status because we have no way to identify gay, lesbian, or bisexual people except by their conduct:

      The reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual “orientation” simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable “on sight” unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or self-proclamation of homosexual tendencies), they cannot constitute a suspect class....

      Those persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual. . . . for purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct.⁸

      The Sixth Circuit’s logic is difficult to comprehend. It suggests that all individuals who are affected by the Cincinnati initiative are currently engaging in sexual conduct with people of the same biological sex. Because Bowers allows a state to regulate such conduct, it concludes that the Cincinnati initiative must be constitutional.

      The Cincinnati initiative, however, never mentions sexual conduct so the court makes a big leap from the initiative language to its conduct conclusion. It makes that leap by broadly defining the word “conduct” and then ignoring its own definition. In the paragraph quoted above, the court concludes that we cannot identify homosexuals except by their conduct. Conduct, however, is broadly defined to include both “public displays of homosexual affection” and “self-proclamation of homosexual tendencies.” The latter aspect of conduct acknowledges the existence of a celibate homosexual who publicly proclaims his or her sexual feelings or desires. By the end of the quoted passage, however, the court has forgotten this part of the conduct definition because it concludes that one cannot distinguish between individuals who are predisposed toward homosexual conduct and those who engage in such conduct. But, if “conduct” included self-proclamations by individuals not currently engaged in relationships, then, of course, one could readily distinguish between the two categories. The Bowers conduct rule, which only related to homosexual activity, would then be inapposite to the Cincinnati initiative which regulated homosexuals irrespective of their current sexual activity.

      Many problematic assumptions underlie the Court of Appeals’ decision in the Cincinnati case. First, the court assumes that definitional problems are unique to the area of sexual orientation. Identification problems make gay, lesbian, and bisexual people ineligible for suspect class treatment but somehow do not cause problems for racial or religious minorities. But, racial identification can be equally difficult. As Judy Scales-Trent so vividly demonstrates in her book, Notes of a White Black Woman, one can be black but look white.⁹ Yet, it is unthinkable that a court would deny suspect class treatment to blacks because we cannot correctly identify all blacks through visual observation. The court assumes that most gay, lesbian, and bisexual people choose to be invisible or closeted. It is only a small minority through public displays of affection (that could and should be curtailed) that become identifiable as gay or lesbian.

      Second, the court assumes that bisexuals do not exist. Although the initiative specifically mentions “bisexuals” as does the Human Rights Ordinance, the court never considers the application of the initiative to bisexuals. Instead, it limits its discussion to “homosexuals” who are found to exist only through their conduct and not through their identity. Such reasoning causes monogamous bisexuals to be labeled as heterosexual or homosexual, depending on the sex of their current partner. Under the court’s reasoning, it would not be possible for a woman, like myself, who is married to a man (thereby meeting the “public display of heterosexual affection” test) to hold myself out as a bisexual. The court assumes that public displays of affection and self-proclamations will be consistent along the bipolar categories of heterosexual and homosexual. Thus, although the court rejects the ease with which we can define people’s sexual orientation, the court adopts a very bipolar notion—one is homosexual if one engages in public displays of affection with someone of the same sex and one is heterosexual if one engages in public displays of affection with someone of the opposite sex. Bisexuals do not exist.

      Given the court’s perverse logic, the political and legal implications of the Cincinnati decision are amusing to consider. Let us assume, for example, that an organization in Cincinnati decides to allow individuals to join if they will sign a piece of paper saying that they are predisposed to find people of the same sex sexually attractive. (One can join even if one also finds individuals of the opposite sex to be sexually attractive.) If you sign the paper, you became an official member of the “H” club. Could the city of Cincinnati then pass an ordinance protecting members of the “H” club from being discriminated against? If so, could the voters of Cincinnati pass a referendum prohibiting the city from granting special protection to members of “H” club? In such a case, the members of “H” club would be discrete and identifiable. They would be definable without reference to their conduct. Of course, members of the gay, lesbian, and bisexual communities are currently members of the “H” club but the Sixth Circuit Court of Appeals mistakenly believes that most gay, lesbian, and bisexual people are in the “closet” when they are not engaged in public displays of affection. And, unfortunately, such decisions as the Cincinnati case drive gay, lesbian, and bisexual people into the “closet” because such cases take away their newly granted nondiscrimination protections. As we will see below, courts and legislatures consistently encourage gay, lesbian, and bisexual people to remain closeted. Self-deprecating gay, lesbian, and bisexual people, who attempt to hide and criticize their own sexual orientation, are rarely targeted by anti-gay policy measures. The message from the Sixth Circuit is that gay, lesbian, and bisexual individuals do not need or deserve nondiscrimination protection because they have the choice of remaining closeted or, in the case of bisexuals, heterosexual.

       B. The State of New Hampshire: Conduct-Based Definition of Homosexuality

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