Date: Sat, 27 May 1995 12:31:04 -0400
From: Gabo3@aol.com

New York Newsday - Thursday, May 25, 1995
SHOOTING OUR CIVIL RIGHTS 'ON SIGHT'
by Gabriel Rotello

	New York - When Cincinnati voters approved a charter amendment in 1993
forbidding the city from enacting laws protecting homosexuals, many experts
presumed it would fail the most elementary judicial test. After all, the U.S.
Constitution has long been interpreted to mean that nobody can be denied
equal protection of, or access to, the government, including the right to
petition the government for redress of grievances. It makes no exception for
unpopular groups, much less those subject to well documented discrimination. 
	The Cincinnati amendment, which prevents gay people, and only gay people,
from ever prevailing upon the government to pass legislation beneficial to
themselves by prohibiting any such laws "based upon sexual orientation,
conduct or relationships," seemed an open and shut case of unequal
protection. So open and shut that even the most bigoted judges would find it
impossible to uphold. 
	But a week ago Friday, the U.S. Court of Appeals for the Sixth Circuit ruled
the amendment valid. The three judge panel wrote that while the Cincinnati
amendment would certainly have been unconstitutional if it deprived an
"identifiable group or class of individuals" of the right to seek legal
protections, it is perfectly constitutional because gay people do not
constitute an identifiable group. 
	"Those persons having a homosexual 'orientation,'" the court wrote, "simply
do not comprise an identifiable class. Many homosexuals successfully conceal
their orientation...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-proclaimation of homosexualed tendencies)."
When gays are discriminated against, it happens "not because of their
orientation but rather by their *conduct*."
	Conservatives, including the religious variety, applauded the decision. They
should be horrified instead, since the court's logic, if uniformly applied,
would invalidate most of the legal protections afforded most groups in
America, including religious ones. After all, a person's faith is not stamped
on his or her forehead at birth. If many lesbians and gays are not
identifiable on sight unless they "elect to be so identifiable," the same can
be said for most Jews and Catholics, not to mention Branch Davidians. By the
court's twisted logic, when someone is threatened with religious
discrimination, they can jolly well "successfully conceal" their creed.
	In fact, the ruling's logic threatens practically everybody currently
protected by civil rights laws based on their ethnicity, national origin,
veteran status and marital status, none of which is generally "identifiable
on sight" unless the person elects to make it known. Even race is sometimes
not obvious to the naked eye, nor are disabilities like diabetes and HIV
infection. So in throwing out the bath water of civil rights protections for
gay people, the judges have established a legal precedent for throwing out
the baby of civil rights protections for practically everybody.
	But as if that weren't bad enough, many lesbians and gay men are, in fact,
identified, targeted, and sometimes even killed, "on sight." A minor case in
point: Bullies began calling me a queer in junior high school, long before I
self-proclaimed anything. They didn't seem to have any trouble identifying me
"on sight." True, obvious mannerisms don't automatically accompany
homosexuality, but sometimes they do. And some of the worst discrimination
and violence against homosexuals is prompted by visible traits that gay
people cannot control (not that we should have to). 
	So the court is dead wrong on both counts. Many Americans are indeed
afforded legal protections based on attributes we can't see. And many
lesbians and gay men are denied civil rights on the basis of attributes they
can't possibly hide. Those two facts make this one of the worst decisions in
years, and a classic example of how thinly veiled judicial prejudice against
one unpopular group can erode basic civil liberties for everybody.

(Gabriel Rotello's column appears every Thursday in New York Newsday. His
email address is gabo3@aol.com)