Guest Blogger

Ohio County Tries to Write Lesbians Out of Constitution

Filed By Guest Blogger | April 28, 2011 6:00 PM | comments

Filed in: Politics
Tags: Avery Friedman, Ohio, sexual orientation discrimination, Shari Hutchinson, Tico Almeida

Editors' Note: Guest blogger Tico Almeida is a civil rights litigator at Sanford Wittels & Heisler LLP, which was recently named by Law360 as the only plaintiff-side law firm on the 2010 list of the Top Five employment law practices in the United States. From 2007 to 2010, Tico-Almeida-4-11.JPGMr. Almeida served as the lead counsel on the proposed Employment Non-Discrimination Act (ENDA) in the U.S. House of Representatives.

Our U.S. Constitution begins elegantly, "We the People." Yet some elected officials in Cuyahoga County, Ohio recently argued in federal court that gays and lesbians are not included in that "We the People."

Thankfully, a federal judge published an important legal opinion earlier this week rejecting the Ohio County's arguments and affirming that the Equal Protection Clause of Fourteenth Amendment to the U.S. Constitution protects all of us from irrational discrimination.

Shari Hutchinson of Ohio, a dedicated public employee who also happens to be a lesbian, began working for a Cuyahoga County child-support enforcement agency in 2002. She was hired as a support officer and later became an account clerk. Her lawsuit alleges that the County denied her higher-paying promotional opportunities in favor of lesser qualified straight people with unimpressive educational credentials, even though Hutchinson has more experience and a Master's Degree in Business Administration.

Unfortunately, Ohio does not have a state-level ENDA, and we all know that the U.S. Congress has still not passed the federal ENDA either. Interestingly, Cuyahoga County does have a non-discrimination policy that includes sexual orientation, but like so many other local government non-discrimination policies, those words are pretty on paper but they do not create a meaningful enforcement mechanism.

2011-Avery-FINAL.jpgThat is why we so desperately need to pass a fully inclusive ENDA.

Thankfully, Hutchinson found a talented lawyer named Avery Friedman (pictured), whom you may have seen on CNN as a legal correspondent. Friedman brought Hutchinson's discrimination lawsuit based on the Equal Protection Clause of the Fourteenth Amendment.

As I have previously written on Bilerico, LGBT plaintiffs who work for public employers can bring a constitutional claim alleging discrimination even if no state or federal ENDA exists. Unfortunately, gays and lesbians who suffer discrimination or workplace harassment in the private sector are out of luck if they live in a state without a state-level ENDA.

Hutchinson's case was assigned at random to Judge James S. Gwin, a smart and progressive jurist who was appointed by President Bill Clinton. (Yes, elections do matter to everyday people like Shari Hutchinson). Once the legal proceedings began, a man named Dave Lambert, the civil division chief for County Prosecutor Bill Mason, decided to defend the unconstitutional discrimination that Ms. Hutchinson endured rather than amicably settling the case.

The most revolting part of the litigation thus far is that Lambert and his boss Bill Mason, an elected Democrat who currently faces state and federal investigations for his alleged unethical conduct, decided to argue in federal court that gays and lesbians essentially do not belong within the equality protections of the U.S. Constitution.

According to Judge Gwin's written opinion, the County submitted papers contending that "all of Hutchinson's claims must fail because sexual orientation is not a protected class, and thus does not merit the constitutional protection, under the Equal Protection Clause, that Hutchinson seeks."

Judge Gwin disagreed with the County, which is a preliminary win for the plaintiff at this early stage of the case, but unfortunately the Court chose to apply only the lowest form of constitutional protection: "Rational Basis Review."

Earlier today, I spoke to attorney Avery Friedman and he told me that at the time he filed his legal papers on behalf of Ms. Hutchinson, President Barack Obama and Attorney General Eric Holder had not yet announced the official position of the U.S. Government that gays and lesbians deserve "Heightened Scrutiny" under the Constitution, rather than merely the lowest form of Rational Basis Review. But the case is not over.

Ms. Hutchinson's lawsuit now proceeds to the next stage at the trial court - fact discovery followed by "Summary Judgment" - and perhaps eventually to a jury trial and then review by the U.S. Appellate Court and the U.S. Supreme Court. At those later stages of the litigation, Judge Gwin and other federal judges on the higher courts will have the opportunity to reassess what level of constitutional protection should apply in this case - and to gays and lesbians in general. Whatever they decide will have huge implications for all LGBT Americans, and we are in a stronger position today because of President Obama's recent DOMA announcement.

As Professor Jack Balkin of Yale Law School has written, "when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree."

In other words, President Obama's historic stance in the DOMA context may likely have positive spillover effects in the employment context. As I have written a few times before, equality begets equality. The victims of senseless workplace discrimination like Shari Hutchinson will have a greater chance of securing justice and holding their employers accountable because of the important work of their own attorneys, as well as the attorneys within the Obama Administration.

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I'm really sick of the queer Obamanauts declaring every wishy washy thing Obama does is historic. You know what's historic? Repealing DOMA, not handing it off to another branch of government to defend. You know what's historic? Signing an executive order eliminating discrimination based on gender identity or sexual orientation in federal employment and contracts, not appointing the head of a corporation that paid no taxes as one of your top economic advisers.

Obama and the Democrats NEED queer support to win elections. Queers do not NEED the Democrats to do anything. Queers do need LEADERS who are willing to fight for equality, regardless of who's in the White House.

Gay Democrats can not have it both ways. You can not cheer when Obama makes a pro-gay gesture and remain silent when he attacks us. You either oppose queerphobia or you defend Obama and never the two shall meet.

Obama said a lot of things to get elected like every other office seeker.
I think he found the job to be more than he expected like most do. He has done more for the LGBT population than any other President but he has limits and people to please along the way as well as a huge pile of crap left by shrub jr..
I can't say I am happy about how long it is taking but then I don't know just what he has to deal with in making any changes.
We are not his only issue and has had his hands full with other very important things.
Jobs are coming back and money is moving again.
Some of our troops are coming home and will get the care they need.
On top of all this, he has to deal with birthers and bigots like no other President.
Would you rather have a DEPRESSION brought on by a shrub clone?
Mc Cain would have sunk us. Just look at the crap the Grand Old Party has done and wants to do.
Just the amount of filibusters they have used since Obama became President has made history.
The GOP has allowed the rich to get richer and wants to cut needed programs for the poor. They all but handed companies cash to leave the country with deregulation.
I am not saying Obama is a saint but he was and is the best man for the job.
Do you think you can do better?

Yes. It doesn't take talent to make a speech in support, even if you do nothing else. He's not even done that.

"I hope the Congress will pass the Employment Non-Discrimination Act, and it has my support" - that would do as a start. Not exactly "Fierce" Advocacy, but at least proof that he's not opposed to it. Not even "it has my Full support", that might be going too far for his comfort level.

That sets the bar pretty low. But we've not had even that.

His silence speaks volumes.

Signing an executive order eliminating discrimination based on gender identity or sexual orientation in federal employment and contracts

He's already signed that executive order for federal employees. Not contracts yet, but it's on the table currently already.

I am a Democrat, but I am not afraid to challenge or call out bad Democrats. For example, this elected Dem prosecutor in Cuyahoga County seems as bigoted as he is corrupt. I'm glad his political career is over. President, Obama on the other hand, has already established his place as the most pro-LGBT-equality President in U.S. History, though he did not have much strong competition. And there is a lot left to do.


Yes, things will "get better" when we actually have people (especially a president) in a leadership position with a genuine soul, coupled with a heart and a brain, to guide this Byzantine disaster of nation. Political cowardice and partisan paranoia has trumped real leadership in America.

The last president we had with a true sense of honor was Truman. Johnson could have been a great leader (as big as Roosevelt) if it had not been for his mistakes in Vietnam. Today, all we have are shallow duplicitous personifications of political ads in suits steering the country into the gutter of history and towards the inevitable fate of civilizations past their glory.

Get ready to learn to speak Chinese or Hindi if you want a job. In twenty years our major cities may quite possibly look like what old Calcutta, India did in the 1960s replete with beggars, and the only jobs available to US citizens will be pulling rigshaws for foreign tourists. Oh, but we will probably still have some sort of minority left to kick around and blame for our own premeditated decline.

I fear we have become just as deluded as the main character in Voltaire's book, Candide, who kept insisting that "It is still the best of all possible worlds" even as one disaster after another befell him.

But, sometimes simply saying something is so just isn't enough, especially when it ignores what actually needs to be changed. Obama had a chance to do that, but he favors the status quo, and the GLBT community is a threat to that recalcitrant status quo which only has room to accommodate insecure conformists who so willingly bow down to current societal norms and corporate power hierarchies.

To people like Obama, who just want to fit in, we are an annoying reminder of his own minority status and a threat to his membership in the exclusive club he once thought he might be denied admission to. We are a bridge too far. A place he is not willing to go. And this is especially so if that advocacy for us should remind others in the White, heterosexual power structure that Obama is not actually one of them; not one of the "good old boys" either. I believe his capitulating to the military on DADT is a prime example of that.

But this not a racial phenomena, there are members of the LGBT community who have also been known to sell out even their own kind in order to be granted access to power. HRC immediately comes to mind.

So, Mr. President, don't simply tell children at risk that "it only gets better"; rather, give them a reason to believe that claim by actually making it better. How could you do any less and still honor the high office you hold? I know that hackneyed phrase, "actions speak louder than words", has been bandied about a lot lately questioning your real commitment to civil rights, but sometimes actually doing something affirmative, instead of just talking about, may quite possibly have the side benefit of restoring people's faith in you.

Without a realization of results, your much vaulted "Audacity of Hope" message is nothing more than meaningless rhetoric. You owe more than that to the children of America, and especially to the only segment of children in America to have the ugly specter of government sanctioned discrimination lying in wait for them, like a bully after school, as they grow into adulthood.

President Johnson once said that his pushing the 1964 Civil Rights Act through Congress would doom the Democratic Party forever in the South, but he said that it was the right thing to do. Can you make that kind of commitment to Civil Rights as well? GLBT children and adults in America need you to say, "yes I can" and then actually honor your commitment. We all chanted "yes we can" to get you elected, now it is your turn.

I agree with you that Harry S. Truman was one of the best U.S. Presidents in the past hundred years. His presidential library in Missouri has some great civil rights history, especially related to his decision to end racial segregation in the U.S. military.

Federal judges have been more and more willing to see constitutional protections for sexual orientation in the 14th amendment. Sotomayor famously wrote a similar opinion when she was a district court judge, arguing that rational basis be applied in a case involving a gay inmate denied a prison job because of his sexuality.

It's a matter of opinion in the end, and as opinions change generally we'll see more of these.

I think Alex is correct that we are going to see more and more of these decisions from federal judges in the future, especially because of President Obama's new position in favor of heightened scrutiny. That is of huge importance to LGBT litigants across the country.

What disturbs me most is the words that keep appearing of late of LGBT people don't qualify for Constitutional protections. This is not the first instance of it.

We are citizens and not subject to exclusion. Must we walk this road of denying some group their rights over and over?

Is it not interesting elected officials sworn to uphold law consistently violate it and suffer no penalties? When may we hold them in contempt of their oaths and the law?