## Facts

- Cincinnati voters approved a city charter amendment (“Issue 3”) providing that the city and its boards and commissions could not enact, enforce, or administer any measure treating homosexual, lesbian, or bisexual orientation, status, conduct, or relationship as a basis for minority or protected status, quota preference, or preferential treatment.
- The amendment declared itself self-executing and invalidated preexisting city ordinances and policies that conflicted with it, including municipal measures prohibiting discrimination based on sexual orientation.
- Advocacy organizations and individual gay and lesbian residents sued, alleging the amendment denied equal protection by targeting them and by making it uniquely harder for them to obtain governmental protections through local political processes.
- The district court enjoined enforcement and later entered permanent relief, concluding gays and bisexuals were a quasi-suspect class and applying heightened scrutiny to invalidate the amendment.
- The Sixth Circuit previously reversed and upheld the amendment; after the Supreme Court decided *Romer v. Evans*, it vacated and remanded for reconsideration.
- On remand, the Sixth Circuit again upheld the amendment and addressed a separate appeal concerning attorneys’ fees awarded to plaintiffs.

## Issues

1. Whether the charter amendment violated the Equal Protection Clause by barring Cincinnati from providing protected status or preferences based on sexual orientation.
2. Whether sexual orientation warrants suspect or quasi-suspect classification requiring heightened scrutiny.
3. Whether the amendment unconstitutionally restructured the political process by imposing a special disability on gays, lesbians, and bisexuals seeking protective legislation.
4. Whether plaintiffs remained entitled to attorneys’ fees and costs after losing on the merits.

## Decision

- The Sixth Circuit upheld the charter amendment as constitutional under the Equal Protection Clause.
- The court rejected quasi-suspect classification for sexual orientation and applied rational basis review.
- The court held the amendment did not violate political-process equal protection doctrine because it operated only at the municipal level and did not broadly disable access to protections at other levels of government.
- The court vacated or reversed the attorneys’ fee award because plaintiffs were no longer prevailing parties after reversal on the merits.

## Legal Principles

- Sexual orientation was not treated as a suspect or quasi-suspect classification; absent Supreme Court direction, rational basis review applied.
- Under rational basis review, a law is valid if any reasonably conceivable set of facts could supply a rational relation to a legitimate governmental interest; the government need not have articulated the interest at enactment.
- A measure may fail rational basis when it imposes an unusually broad disability and appears explicable only by animus; the court read *Romer* as turning on breadth and structure rather than adopting heightened scrutiny for sexual orientation.
- Political-process doctrine invalidates restructurings that uniquely burden a group’s ability to obtain protection through ordinary political channels; the court found no comparable multi-level restructuring here because the amendment was limited to municipal action.
- Fee awards under 42 U.S.C. § 1988 require prevailing-party status; reversal on the merits eliminates that status and defeats the fee award.

## Conclusion

The Sixth Circuit held that Cincinnati’s charter amendment barring municipal recognition of protected status or preferential treatment tied to sexual orientation survived rational basis review and did not trigger political-process invalidation, and it set aside plaintiffs’ attorneys’ fees because they did not prevail on the merits.


Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997)