Cases

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

J. BARRETT HYMAN, M.D.,
Plaintiff,

v.

CITY OF LOUISVILLE, et al.,
COUNTY OF JEFFERSON, et al.,
Defendants,

FAIRNESS CAMPAIGN, et al.,
Defendant-Intervenors.

____________________________________

CIVIL ACTION NO.
3:99CV-597-S
(Simpson, C.J.)




MEMORANDUM OF THE UNITED STATES AS AMICUS CURIAE OPPOSING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND SUPPORTING DEFENDANTS' AND DEFENDANT-INTERVENORS' CROSS MOTIONS FOR SUMMARY JUDGMENT


BILL LANN LEE
Assistant Attorney General
Civil Rights Division

MEREDITH L. BURRELL
AARON D. SCHUHAM
JANIE ALLISON SITTON
>Attorneys
>U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P.O. Box 65968
Washington, D.C. 20035-5968
(202) 616-9507

TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
INTRODUCTION AND INTEREST OF THE UNITED STATES 1
COUNTERSTATEMENT OF THE CASE 4
ARGUMENT 4
I. PLAINTIFF CANNOT DEMONSTRATE ANY OF THE ARTICLE III PREREQUISITES FOR MAINTAINING THIS ACTION BECAUSE NO CASE OR CONTROVERSY EXISTS 4
A. Legal Standards for Justiciability in Pre-Enforcement First Amendment Challenges 4
B. Plaintiff Cannot Maintain This Action Because He Does Not Have Standing, His Claims Are Not Ripe, and the Issues Presented Are Not Fit For Judicial Review 8
II. PLAINTIFF CANNOT OBTAIN A FREE EXERCISE EXEMPTION TO THE EMPLOYMENT ANTI-DISCRIMINATION PROVISIONS OF THE ORDINANCE 15
A. The Challenged Provisions Are Neutral and Generally Applicable 16
B. The Provisions Satisfy Rational-Basis Review 20
III. THE ORDINANCE DOES NOT INFRINGE UPON PLAINTIFF'S FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH 21
A. The Advertising Provision is a Permissible Regulation of Commercial Speech 22
B. The Incitement Provision Should be Construed in Accordance with Applicable First Amendment Precedent 25
IV. THE EXEMPTION DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE 26
V. THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE 28
VI. PLAINTIFF CANNOT OBTAIN AN EXEMPTION TO THE ORDINANCE BASED ON AN ALLEGED INFRINGEMENT ON HIS RIGHT TO FREEDOM OF ASSOCIATION 31
A. Plaintiff's Relationships with His Corporation's Employees Do Not Constitute an Intimate Association 32
B. Plaintiff's Relationships with His Corporation's Employees Do Not Constitute an Expressive Association 33
CONCLUSION 37
TABLE OF AUTHORITIES
Adult Video Ass'n v. United States Dep't. of Justice, 71 F.3d 563 (6th Cir. 1995) 5, 6, 7, 13
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) 5
Babbitt v. United Farm Workers Nat'l Union,442 U.S. 289 (1979) 12
Baty v. Willamette Indus., Inc., 172 F.3d 1232 (10th Cir. 1999) 2
Belle Maer Harbor v. Charter Township of Harrison, 170 F.3d 553 (6th Cir. 1999) 29, 30
Bigelow v. Virginia, 421 U.S. 809 (1975) 7
Board of Directors of Rotary, Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987) 32, 35
Bob Jones Univ. v. United States, 461 U.S. 574 (1983) 16
Boy Scouts of America v. Dale, __ U.S. __, 120 S. Ct. 2446 (2000) 35, 36
Brandenburg v. Ohio, 395 U.S. 444 (1969) 25
Brown v. Ferro Corp., 763 F.2d 798 (6th Cir. 1985) 6, 7
Bucyrus-Erie Co. v. Department of Indus., 599 F.2d 205 (7th Cir. 1979) 4
California Fed'l Sav. & Loan Ass'n v. Guerra, 758 F.2d 390 (9th Cir. 1985), aff'd, 479 U.S. 272 (1987) 4
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) 15, 16, 17, 19
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) 7
Connally v. General Constr. Co., 269 U.S. 385 (1926) 29
Contractors Ass'n v. Sec'y of Labor, 442 F.2d 159 (3d Cir. 1971) 34
Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991) 18
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327 (1987) 18, 26, 27, 28
Dale Baker Oldsmobile, Inc. v. Fiat Motors of North America, Inc., 794 F.2d 213 (6th Cir. 1986) 22
Dandridge v. Williams, 397 U.S. 471(1970) 28
Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995) 28
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) 16
EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) 2, 16, 20
Employment Division v. Smith, 494 U.S. 872 (1990) 15, 16, 19
Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997) 30, 31
Fowler v. Rhode Island, 345 U.S. 67 (1953) 17
Frazee v. Employment Security Dep't, 489 U.S. 829 (1989) 19
Frisby v. Schultz, 497 U.S. 474 (1988) 22, 25
Golden v. Zwickler, 394 U.S. 103 (1969) 6
Gordon v. Warren Consolidated Bd. of Educ., 706 F.2d 778 (6th Cir. 1983) 7
Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710 (6th Cir. 1995) 6
Hill v. Colorado, __ U.S. __, 120 S. Ct. 2480 (2000) 29
Hishon v. King & Spaulding, 467 U.S. 69 (1984) 2, 33, 34, 35
Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987) 27
Hopkins v. Price Waterhouse, 920 F.2d 967 (D.C. Cir. 1990) 2
Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 64 (6th Cir. 1991) 23
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) 21
Jews for Jesus, Inc. v. Jewish Community Relations Council of New York, Inc., 968 F.2d 286 (2d Cir. 1992) 25
Kardules v. City of Columbus, 95 F.3d 1335 (6th Cir. 1996) 15
Kissinger v. Board of Trustees, 5 F.3d 177 (6th Cir. 1993) 16
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911) 28
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 5, 6, 15
McDaniel v. Paty, 435 U.S. 618 (1978) 18
McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) 20
Mount Elliott Cemetary Ass'n v. City of Troy, 171 F.3d 398 (6th Cir. 1999) 16, 17
National Rifle Ass'n. of America v. Magaw, 132 F.3d 272 (6th Cir. 1997). passim
New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988) 35
New York v. Ferber, 458 U.S. 747 (1982) 22, 24, 25, 26
Norwood v. Harrison, 413 U.S. 455 (1973) 34
People's Rights Organization v. City of Columbus, 152 F.3d 522 (6th Cir. 1998) 12
Pinnock v. International House of Pancakes, 844 F. Supp 574 (S.D. Cal. 1993) 29, 30
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973) 23, 24
Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, 902 F. Supp. 492 (D.N.J. 1995) 24, 25
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 2
Railway Mail Ass'n v. Corsi, 326 U.S. 88 (1945) 34
Rector, Wardens, and Members of Vestry of St. Bartholomew's Church v. City of New York, 914 F.2d 348 (2d Cir. 1990) 18
Reynold v. United States, 98 U.S. 145 (1879) 16
Roberts v. United States Jaycees, 468 U.S. 609 (1984) 20, 29, 32, 33, 35
Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991) 2
Romer v. Evans, 517 U.S. 620 (1996) 21
St. Francis Health Care Centre v. Shalala, 205 F.3d 937 (6th Cir. 2000) 4
Stanglin v. Dallas, 490 U.S. 19 (1989) 27
Texas Monthly Inc. v. Bullock, 489 U.S. 1 (1989) 27
Thomas v. Anchorage Equal Rights Comm'n, Nos. 97-35220, 97-35221 (9th Cir. Aug. 4, 2000) passim
Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985) 6
Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994) 6
United States v. Columbus Country Club, 915 F.2d 877 (3d Cir. 1990) 2
United States v. Hunter, 459 F.2d 205 (4th Cir. 1972) 24
United States v. International Longshoreman's Ass'n, 460 F.2d 497 (4th Cir. 1972) 2
United States v. Lee, 455 U.S. 252 (1982) 19
United States v. Long, 831 F. Supp. 582 (W.D. Ky. 1993) 24
United States v. Northside Realty Assoc'n, Inc., 474 F.2d 1164 (5th Cir. 1973) 24
Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489 (1982) 23, 24, 29
W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309 (1967) 15
Walz v. Tax Comm'n, 397 U.S. 664 (1970) 26
Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955) 20, 27
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) 23

STATUTES

20 U.S.C. § 1681(a)(3) 3
26 U.S.C. § 3121(b)(1)-(b)(21) 19
28 U.S.C. § 534 30
28 U.S.C.A. § 994 30
42 U.S.C. § 12113(c) 3
42 U.S.C. § 3607(a) 3
42 U.S.C. § 2000e-1(a) 2
42 U.S.C. § 2000e-2(a) 2
42 U.S.C. § 2000e-3(b) 3
42 U.S.C. § 2000e-5(f)(i) 2
42 U.S.C. § 2000e-6 2
42 U.S.C. § 2000e-7 4
Ky. Rev. Stat. Ann. § 525.113(1) 30
Ky. Rev. Stat. Ann. § 532.031(1) 30
Ky. Rev. Stat. Ann. § 304.12-013(5)(c) 30

REGULATIONS

7 C.F.R. § 15d.2(a) 30
28 C.F.R. § 17.41(c) 30
28 C.F.R. § 42.1(a) 30
31 C.F.R. § 0.214(a) 30
31 C.F.R. § 700.13(a) 30
32 C.F.R. § 147.6(a) 30
34 C.F.R. § 668.46(c)(1)(vii)(B)(3) 30
50 C.F.R. § 679.50(i)(3)(ii) 30

OTHER AUTHORITIES

City of Louisville Code of Ordinances, ch.98 passim
Jefferson County Ordinance 1



INTRODUCTION AND INTEREST OF THE UNITED STATES

In 1999, the City of Louisville added sexual orientation and gender identity employment discrimination prohibitions to its Code of Ordinances, which already prohibited covered employees from discriminating in employment because of any individual's sex, race, color, religion, ancestry, national origin, or place of birth. See City of Louisville Code of Ordinances ("Ordinance" or "City Ordinance") § 98.17. Plaintiff, a doctor who is a fifty percent shareholder of a medical practice subject to the Ordinance, alleges that he holds religious beliefs that compel him to discriminate in employment against gay, lesbian, bisexual, and transgendered persons. First Amended Complaint ("Complaint"), ¶ 19. Plaintiff advances several constitutional challenges to the Ordinance, contending that its prohibitions violate his First Amendment rights to the free exercise of religion and freedom of speech; that they violate his equal protection rights by exempting religious institutions but not religious individuals; that they are unconstitutionally vague, thereby violating the Due Process Clause; and that they violate his First Amendment freedom of association rights. Any of his challenges, if successful, could implicate the constitutionality of existing federal anti-discrimination provisions. (1)

The Department of Justice and the Equal Employment Opportunity Commission share responsibility for enforcing Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), see 42 U.S.C. §§ 2000e-5(f)(1) & 2000e-6, which prohibits discrimination in employment by employers because of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Thus, the United States retains an interest in a consistent interpretation as to whether constitutional defenses can be advanced against employment discrimination prohibitions. Here, plaintiff's First Amendment claims cannot be confined to discrimination based on sexual orientation or gender identity. If plaintiff were to prevail, other employers could claim that being required to employ individuals of a particular race, sex, national origin, or religion violates their First Amendment rights to free exercise of religion or free association; or that engaging in discriminatory advertising for employment is protected by the First Amendment. (2) Such claims would directly interfere with the federal interest in assuring a national labor market free from discrimination embodied in Title VII and other federal statutes.

Moreover, both Title VII and the Ordinance contain statutory exemptions for the employment activities of religious entities. Compare 42 U.S.C. § 2000e-1(a) with Ordinance §§ 98.00 & 98.18(B). (3) Thus, plaintiff's Equal Protection claim--that a government may not exempt religious institutions from coverage without affording the same exemption to other employers who claim that their religious beliefs require them to discriminate in employment--also implicates the interests of the United States with respect to its enforcement of Title VII. (4)

Similarly, the United States has an interest in a consistent interpretation as to how First Amendment freedom of speech rights apply to prohibitions against discriminatory advertising. Like the Ordinance, see id. § 98.17(D), Title VII makes it unlawful for an employer to discriminate in advertising "relating to employment," except in cases of a "bona fide occupational qualification for employment." 42 U.S.C. § 2000e-3(b). Thus, plaintiff's claim that the prohibition on discriminatory advertising in the Ordinance violates his First Amendment rights to freedom of speech could be advanced against the prohibition in Title VII against discriminatory advertising as well, thereby affecting the United States' ability to enforce that prohibition.

Finally, the United States has a strong interest in the general development of anti-discrimination law at the national, state, and local level. Indeed, the statutory framework of Title VII contemplates state or local employment anti-discrimination laws that may be broader than federal law. (5) See 42 U.S.C. § 2000e-7; California Fed'l Sav. & Loan Ass'n v. Guerra, 758 F.2d 390, 394 (9th Cir. 1985), aff'd, 479 U.S. 272 (1987); Bucyrus-Erie Co. v. Department of Indus., 599 F.2d 205, 210-11 (7th Cir. 1979).

COUNTERSTATEMENT OF THE CASE

The United States incorporates by reference Defendants' and Defendant-Intervenors' Counterstatements of the Case.

ARGUMENT

"Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000) (quoting Fed. R. Civ. P. 56(c)). This case presents no genuine issue of material fact, and Defendants' and Defendant-Intervenors' Cross Motions for Summary Judgment should be granted for the reasons set forth herein.

I. PLAINTIFF CANNOT DEMONSTRATE ANY OF THE ARTICLE III PREREQUISITES FOR MAINTAINING THIS ACTION BECAUSE NO CASE OR CONTROVERSY EXISTS

A. Legal Standards for Justiciability in Pre-Enforcement First Amendment Challenges

"Article III of the Constitution confines the federal courts to adjudicating actual 'cases' and 'controversies.'" National Rifle Ass'n of America v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997) (citing U.S. Const. art. III, § 2). Although a party may, in certain circumstances, seek a declaratory judgment based on pre-enforcement judicial review of a statute, judicial review is always "limited to the resolution of an 'actual controversy.'" Id. (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937). Thus, a plaintiff seeking declaratory judgment based on pre-enforcement review of a statute must demonstrate that:

(1) the plaintiff has standing--whether he is the proper party to request an
adjudication of a particular issue, because he has suffered a concrete injury in fact;
(2) a particular challenge is brought at the proper time and is ripe for pre-enforcement review; and
(3) the issue currently is fit for judicial decision.

National Rifle Ass'n, 132 F.3d at 280.

Standing and ripeness are generally intertwined concepts, particularly in the context of pre-enforcement judicial review of a statute. See Adult Video Ass'n v. United States Dep't. of Justice, 71 F.3d 563, 567 (6th Cir. 1995). In a pre-enforcement challenge to a statute, ripeness sometimes "coincides squarely with standing's injury in fact prong." Thomas v. Anchorage Equal Rights Comm'n, Nos. 97-35220, 97-35221, slip op. at 9504 (9th Cir. Aug. 4, 2000) (en banc) (slip opinion attached hereto as Exhibit A). Here, because the same facts attest to the fact that plaintiff cannot demonstrate standing or ripeness, both concepts are analyzed together.

To establish Article III standing, a plaintiff must demonstrate: (1) an injury in fact that is actual or imminent; (2) that the alleged injury is fairly traceable to the defendant's action; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. (6) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Further, plaintiffs seeking declaratory judgment based on pre-enforcement judicial review of a statute must demonstrate that "the parties have 'adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment' even though the injury-in-fact has not yet been completed." National Rifle Ass'n, 132 F.3d at 280 (quoting Golden v. Zwickler, 394 U.S. 103, 108 (1969)).

"[T]he basic rationale of the ripeness doctrine 'is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.'" National Rifle Ass'n, 132 F.3d at 284 (quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580 (1985)). "Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all." Id. (citations omitted). "The ripeness doctrine not only depends on the finding of a case or controversy . . . but it also requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances." Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir. 1985).

Although the usual requirements for pre-enforcement review of a statute may be relaxed when First Amendment rights are allegedly chilled, (7) it is clear that even in the context of First Amendment rights, a plaintiff must demonstrate an injury that is "'real and immediate,' not 'conjectural' or 'hypothetical.'" See Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 716 (6th Cir. 1995) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Accordingly, "an individual must present more than 'allegations of a subjective chill [of the exercise of protected rights]. There must be a 'claim of specific present objective harm or a threat of specific future harm.'" Adult Video Ass'n, 71 F.3d at 566 (emphasis added) (quoting Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975)); see also Gordon v. Warren Consolidated Bd. of Educ., 706 F.2d 778, 780 (6th Cir. 1983) (allegations of subjective chill on First Amendment rights insufficient to establish a specific present objective harm or a threat of specific future harm).

The ripeness inquiry in the First Amendment pre-enforcement context focuses on the imminence of the threat of prosecution, whether the plaintiff has established a concrete plan to refuse to comply with the statute, and whether the alleged chill on First Amendment activity is concrete and credible rather than imaginative or speculative. National Rifle Ass'n, 132 F.3d at 285. In evaluating whether this standard has been met, this Court must weigh several factors: "the hardship to the parties if judicial relief is denied at the pre-enforcement stage," "the likelihood that the harm alleged by plaintiff[] will ever come to pass," and "whether the factual record is sufficiently developed to produce a fair adjudication of the parties' respective claims." Id. at 284.

Even when the technical requirements of Article III standing and ripeness are present, prudential considerations nevertheless may weigh against exercising jurisdiction if the issues presented are not fit for judicial review. Id. at 280, 290 (claims usually unfit for judicial review until controversy has been focused in a concrete factual situation or further factual development will not clarify the issues); see also Brown, 763 F.2d at 801.

B. Plaintiff Cannot Maintain This Action Because He Does Not Have Standing, His Claims Are Not Ripe, and the Issues Presented Are Not Fit For Judicial Review

Plaintiff lacks standing to maintain this action because he cannot establish that he has suffered a specific present objective harm or has been threatened with a specific future harm to his First Amendment rights. His claims are not ripe for review because he has failed to establish a concrete plan to violate the law; that prosecution against him under the Ordinance is imminent or likely; or even that he will suffer any hardship if judicial review is postponed. Further, plaintiff's claims are devoid of a concrete factual context and therefore are not presently fit for judicial review.

First, contrary to plaintiff's claims, see Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment ("Pl.'s Mem."), at 16, this case does not involve any chill on his First Amendment activity. The record reveals that plaintiff has no intention of changing his behavior because of the Ordinance's prohibitions; rather, plaintiff testified that he intends to act in accordance with his asserted religious beliefs by refusing to hire gay, lesbian, bisexual, or transgendered applicants if he is faced with this circumstance in the future. Transcript of March 3, 2000 Deposition of J. Barrett Hyman, M.D., ("Hyman Dep.") (excerpts attached as Exhibit B hereto), 50:17-21 (plaintiff wishes to place advertisements to make clear that he is "not planning to honor that law"); 61:16-23, 100:12-15 (plaintiff does not intend to change his interview practices, which include inquiring about sexual orientation); see also Complaint, ¶ 20 (plaintiff will violate the Ordinance by discriminating in hiring and advertising). Thus, if plaintiff intends to freely exercise his religion by rejecting applicants on the basis of sexual orientation or gender identity, then the Ordinance cannot be said to operate to chill his free exercise rights. (8)

Similarly, the record does not support plaintiff's argument that his speech activities have been chilled by the Ordinance's prohibition against discriminatory job advertisements. Plaintiff testified that he never, either before or after the Ordinance became effective, advertised in a manner that indicated a preference for heterosexual applicants or a preference for employees who subscribe to particular moral views. Hyman Dep., 48:13-24; 50:6-14. Further, plaintiff testified that he does not intend to place an advertisement in the future that includes an express limitation on the basis of sexual orientation or gender identity. (9) Rather, he wishes to advertise that "only pro life, pro family applicants need to apply." Hyman Dep., 100:1-3.

In the absence of any chilling effect on protected First Amendment activity, plaintiff cannot demonstrate any injury entitling him to maintain this action. His claims are analogous to those of the plaintiffs in Thomas, in which two landlords challenged provisions of state and local civil rights laws prohibiting discrimination against prospective tenants on the basis of marital status and advertisements for rental property indicating a preference based on marital status. The United States Court of Appeals for the Ninth Circuit, sitting en banc, recently held in Thomas that the landlords' claims that these provisions violated their First Amendment rights to free religious exercise and free speech were not ripe for review, despite the fact that the landlords alleged that they had refused to rent to unmarried couples in the past and that they intended to do so in the future. Thomas, slip op. at 9506-9507. The court in Thomas held that the landlords' generalized intent to violate the statute at some unknown date in the future if an unmarried couple sought to rent one of their properties could not constitute a concrete plan to violate the law, and that the lack of any factual context rendered the case unfit for judicial resolution. Id. at 9507, 9510. The court also held that the landlords could not establish that the threat of prosecution under the Ordinance was reasonable or imminent because no action had ever been brought against them to enforce the marital status provision, because there had been no specific threat of future enforcement, because no prospective tenant had ever complained to the enforcement authorities about their refusal to comply with the marital status provision, and because they could not specifically identify any prospective tenants turned away due to their marital status. Id. at 9507-9508.

Here, plaintiff's claims are similarly speculative and conjectural. First, plaintiff has never engaged in any conduct prohibited by the Ordinance. He testified that no gay or lesbian individual has ever applied for employment at his medical practice, (10) Hyman Dep., 43:7-11, and that he would be highly surprised if a gay, lesbian, bisexual, or transgendered individual ever chose to apply for a position in his practice given his well-known "pro-life, pro-family" reputation in the community. Hyman Dep., 43:13-18, 49:10-22. Also, as set forth above, plaintiff testified that has never advertised in a discriminatory manner, even since the Ordinance became effective.

Second, the record demonstrates that, like the landlords in Thomas, plaintiff has no "concrete plan" to violate the challenged Ordinance in the future. Plaintiff's intent to refuse to comply with the statute if and when a gay, lesbian, bisexual, or transgendered person applies for employment with his medical practice does not evidence a "concrete plan," but rather amounts to a "'some day' intention" that is simply too vague and speculative to create a justiciable controversy. Thomas, slip op. at 9507. Likewise, plaintiff has not established a concrete plan to advertise in a manner that violates the Ordinance's prohibitions, or to "aid, abet, coerce, or compel," others to violate the Ordinance. In fact, the record demonstrates that plaintiff does not even have a vague future intention, much less a concrete plan, to violate these provisions. See Hyman Dep., 100:1-3 (plaintiff intends in the future to advertise for "pro-life, pro-family" employees); id. at 128:20-129:5 (plaintiff believes that determining whether or not to comply with the Ordinance is an individual decision, that he cannot speak for anyone else, and that it is not his place to tell others to adopt his views). Thus, it is purely speculative whether plaintiff will ever engage in conduct prohibited by the Ordinance.

Whether the Ordinance will ever be enforced against plaintiff is even more conjectural. Plaintiff has never engaged in any conduct on which a specific, present threat of enforcement could be based. Therefore, the threat of a prosecution against plaintiff is even more attenuated than the threat faced by the landlords in Thomas, who alleged that they had discriminated against unmarried prospective tenants in the past. (11) Further, the threat of future enforcement against plaintiff based on some presently unknown conduct is highly unlikely and contingent on far too many unforeseeable events to create a justiciable controversy. For instance, it is unclear whether plaintiff will retain his practice; (12) whether or when a job opening will occur; whether a gay, lesbian, bisexual, or transgendered individual will seek employment at plaintiff's practice; whether such an applicant will file a complaint or communicate the alleged discrimination to the Louisville Human Relations Commission, see Transcript of March 3, 2000 Deposition of Phyllis A. Brown, ("Brown Dep.") (excerpts attached as Exhibit D hereto), 7:10-12; or whether the Human Relations Commission will determine that cause exists to investigate the complaint. Id. at 7:14-20.

The only injury plaintiff could claim in these circumstances is that, because the Ordinance exists, he has a generalized fear that an enforcement action might be brought against him at some unknown time in the future based on some presently unknown conduct. It is well settled, however, that the mere existence of a statute cannot confer standing, even when it is clear that the government intends to enforce the statute. See People's Rights Organization v. City of Columbus, 152 F.3d 522, 529 (6th Cir. 1998) (mere existence of statute which may or may not ever be applied to plaintiff cannot create Article III case or controversy); National Rifle Ass'n, 132 F.3d at 293 (same); Adult Video Ass'n, 71 F.3d at 566 ("party must show a more immediate threat than the unsurprising proposition that the government generally tends to enforce its laws"). Thus, plaintiff cannot demonstrate any First Amendment injury whatsoever, much less one "of sufficient immediacy and reality" to justify pre-enforcement judicial review and issuance of a declaratory judgment. (13) National Rifle Ass'n, 132 F.3d at 280.

For similar reasons, plaintiff's Equal Protection challenge based on the Ordinance's exemption for certain religious institutions does not present a justiciable controversy. Because it is speculative whether plaintiff will ever be faced with a circumstance in which his religion dictates action in violation of the Ordinance, it is also speculative whether he will ever suffer any injury as a result of the Ordinance's differential treatment of religious institutions acting as employers that discriminate, on the one hand, and individuals acting as employers who discriminate on the basis of their religious beliefs, on the other. Plaintiff will be treated differently than religious institutions only if he is in fact faced with the choice between freely exercising his religion or complying with the provisions of the Ordinance at issue; otherwise, the existence of an exemption for religious institutions has no effect on him. Because this scenario is unlikely and speculative, it is doubtful that plaintiff will ever be treated differently than a religious institution.

In addition to his inability to satisfy the technical Article III requirements, plaintiff also cannot meet the prudential requirement that the issues presented be fit for judicial review. The factual record is not sufficiently developed to avoid entangling this Court in an abstract dispute over plaintiff's constitutional rights. Specifically, the record does not even establish that plaintiff has the authority over hiring and firing decisions within his medical practice to refuse to comply with the Ordinance. The medical practice for which Dr. Hyman works is a professional services corporation in which Dr. Hyman and his partner, Dr. Perry Cassady, are each 50% shareholders, officers and employees. Cassady Dep., 16:3-9. Although plaintiff alleged in his Complaint that he has full authority over all hiring decisions in the partnership, see Complaint, ¶ 4, he admitted at his deposition that Dr. Cassady has the authority within their medical practice to challenge his decisions on employment matters and even veto an employment decision made by him. Hyman Dep., 34:7-16. Dr. Cassady testified that he and Dr. Hyman have equal authority with respect to running the practice. Cassady Dep., 75:1-8. He further stated that he and Dr. Hyman have discussed implementing a new arrangement in the partnership whereby each partner would have complete, individual authority to hire his own employees; they would confer only on employment decisions relating to employees whose work they would share. Cassady Dep., 68:9-69:15; 73:2-21. In fact, it is clear from Dr. Cassady's testimony that he does not even support Dr. Hyman's intention to disobey the Ordinance in the future, and that he himself would not refuse to hire an applicant on the basis of sexual orientation or gender identity or approve of a discriminatory employment advertisement. Cassady Dep., 76:13-77:16; see also n.28, infra.

In this context, in which plaintiff and his business partner's authority for making employment decisions is, at best, in a state of flux, plaintiff's claims of injury and threat of future enforcement are rendered even more hypothetical. In sum, "[a] concrete factual scenario is necessary to delineate the boundaries of what conduct the government may or may not regulate." Thomas, slip op. at 9510 (citation omitted). In the absence of an identifiable applicant for a particular available position in the medical practice, plaintiff's claim is devoid of factual context and would require this Court to determine his constitutional rights in a vacuum. Id. (citing W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 312 (1967)).

Finally, plaintiff will suffer no hardship if judicial review of his claims is delayed until they arise in a concrete factual scenario. See Kardules v. City of Columbus, 95 F.3d 1335, 1344 (6th Cir. 1996) (typically hardship is only found when enforcement of a statute against a particular plaintiff is inevitable and sole impediment to ripeness is delay in enforcement proceedings). Thus, not only are plaintiff's claims not ripe for judicial review, they also fail the prudential requirement that issues presented be fit for judicial review.

For these reasons, plaintiff cannot establish the "irreducible constitutional minimum" necessary for pursuing his claims in federal court, Lujan, 504 U.S. at 560, and his complaint therefore must be dismissed. (14)

II. PLAINTIFF CANNOT OBTAIN A FREE EXERCISE EXEMPTION TO THE EMPLOYMENT ANTI-DISCRIMINATION PROVISIONS OF THE ORDINANCE

In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court "establish[ed] the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). (15) The Court in Smith specifically rejected the same conceptual Free Exercise claim plaintiff advances in this case, noting that "[t]o permit [such an argument] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." 494 U.S. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166-67 (1879)).

Under Smith, if a law substantially burdening religious exercise is not neutral or generally applicable, then strict scrutiny is appropriate in a Free Exercise challenge to the application of that law. Id. at 531-32. No heightened scrutiny of the Ordinance is warranted, however, because its provisions are both neutral and generally applicable. (16)

A. The Challenged Provisions Are Neutral and Generally Applicable

The concepts of "neutrality" and "general applicability" are interrelated; the failure to satisfy one requirement is a "likely indication" that the other is not satisfied. Lukumi, 508 U.S. at 531. A law is "neutral" unless its object "is to infringe upon or restrict practices because of their religious motivation." Id. at 533 (citing Smith, 494 U.S. at 878); Mount Elliott Cemetary Ass'n v. City of Troy, 171 F.3d 398, 405 (6th Cir. 1999). A law is "generally applicable" if it "applies to all similarly situated people equally without targeting any particular religious practice." Lukumi, 508 U.S. at 542; see also City of Troy, 171 F.3d at 405 (citing Lukumi, 508 U.S. at 542-43)).

Plaintiff contends that the Ordinance on its face is not a neutral law of general applicability because it "grant[s] a blanket exemption to religious institutions while leaving individual believers unprotected . . . ." Pl.'s Mem, at 20. But the existence of the Ordinance's exemption for religious institutions cannot deprive it of its neutrality within the meaning of Lukumi or the other cases on which plaintiff relies, see Pl.'s Mem., at 21, because each of those cases involved laws that targeted religion for special duties or limitations not shared by similar secular entities or laws that distinguished between different religions. For instance, in Lukumi, the challenged ordinances lacked neutrality because they were enacted for the purpose of barring a fundamental practice of the Santeria faith: ritual animal sacrifice. 508 U.S. at 533-41. And in Fowler v. Rhode Island, 345 U.S. 67 (1953), the Court concluded that an ordinance that prohibited addressing political or religious meetings in public parks had been used to target a minister of the Jehovah's Witnesses who addressed his congregation in such a park in violation of his Free Exercise rights. Id. at 68-69. Based on a concession at oral argument in Fowler that the ordinance, "as construed and applied, did not prohibit church services in the park," the Court noted "that a religious service of Jehovah's Witnesses is treated differently [by the State] than a religious service of other sects." Id. at 69.

But unlike Lukumi and Fowler, there is no allegation here that the legislators' purpose in enacting the challenged provisions of the Ordinance was to target a religious practice because of their disapproval of that religion. Nor, unlike in Lukumi, is there any claim here that the Ordinance was designed so that in practice it only would apply to members of a certain faith. The Ordinance is neutral because it applies equally to all religious faiths and does not target any particular religion or religious practice.

Further, the Ordinance does not favor secular employers over religious ones. In McDaniel v. Paty, 435 U.S. 618 (1978), the Court held that a provision of the Tennessee Constitution prohibiting clergy from running for elected office violated the Free Exercise rights of a Baptist minister seeking to act as a delegate because it forced clergy to choose between ministering and seeking public office. Id. at 626; see also id. at 632 (Brennan, J., concurring) (prohibition constituted an unconstitutional "religious classification"). But here, the Ordinance is not on its face limited to regulating religious individuals or entities. McDaniel does not control here because the challenged provisions of the Ordinance are intended to eradicate discrimination in employment, no matter what secular or religious reason might motivate an employer to violate it. See Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991) (ordinance was neutral because it had no "anti-religious purpose"); Rector, Wardens, and Members of Vestry of St. Bartholomew's Church v. City of New York, 914 F.2d 348, 354 (2d Cir. 1990) (landmark preservation law was neutral because there was no "evidence of an intent to discriminate against, or impinge on, religious belief"). Indeed, the exemption for religious institutions creates the exact opposite effect of that claimed by plaintiff: it defers to the autonomy of religious institutions in making employment decisions. See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 339 (1987) (exemption for religious institutions in Title VII "is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions"). Accordingly, the Ordinance and its exemption for religious institutions are "neutral" as that term was used in Smith and Lukumi. (17)

The exemption for religious institutions also does not deprive the Ordinance of its general applicability. In Smith, the Court found to be generally applicable a criminal law prohibiting possession of a "controlled substance" except where "the substance has been prescribed by a medical practitioner." 494 U.S. at 874. Similarly, the Court in Smith characterized as "generally applicable" the Social Security tax upheld in light of a Free Exercise challenge in United States v. Lee, 455 U.S. 252 (1982), despite the fact that that statute excepted numerous employer-employee relationships (such as newspaper deliverers under age 18, high level government officials, sharecroppers, children working for their parents, and foreign agricultural workers) from its tax. See 26 U.S.C. § 3121(b)(1)-(b)(21).

As in Lukumi, there is no need in this case to "define with precision the standard used to evaluate whether a prohibition is of general application." 508 U.S. at 543. It is enough to say that the Ordinance's statutory exemption for religious institutions, which does not disfavor religious organizations compared to analogous secular organizations, does not deprive the Ordinance of its general applicability. Because the Ordinance is "neutral" and "generally applicable" as those terms were used in Smith and Lukumi, heightened scrutiny is unwarranted.

B. The Provisions Satisfy Rational-Basis Review

There can be no doubt that the Ordinance satisfies rationality review. See W.J. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976) ("[L]egislative Acts adjusting the burdens and benefits of economic life come . . . with a presumption of constitutionality, and . . . the burden is one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way."). It is beyond dispute that barring discrimination in employment is rationally related to legitimate government purposes: safeguarding individuals from invidious discrimination in employment and ensuring a productive economy. See Ordinance § 98.15(A) (City's interest in protecting individuals' "interest in personal dignity and freedom from humiliation; to make available to the city their full productive capacities; to secure the city against strife and unrest which would menace its democratic institutions; and to preserve the public safety, health, and general welfare"); see also McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 357 (1995) (noting that the Age Discrimination in Employment Act, enacted as "part of an ongoing congressional effort to eradicate discrimination in the workplace, reflects a societal condemnation of invidious bias in employment decisions," and is "but part of a wider statutory scheme to protect employees in the workplace nationwide," including Title VII); cf. Roberts v. United States Jaycees, 468 U.S. 609, 624 (1984) (Minnesota public accommodations statute "reflects the state's strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services"). In fact, in the context of Title VII, Congress' strong interest in eliminating workplace discrimination satisfies any level of constitutional scrutiny. See, e.g., Fremont Christian School, 781 F.2d at 1368-69.

Finally, plaintiff's claim that a government does not have an adequate interest in prohibiting discrimination on the basis of sexual orientation because gay, lesbian, and bisexual people do not constitute a "suspect class," Pl.'s Mem., at 26, is without merit. Nothing prevents a state or local government from providing protection from discrimination to groups that heretofore have not been granted heightened protection by federal courts. See Romer v. Evans, 517 U.S. 620, 628 (1996) ("[S]tate and local governments have not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny . . . Rather, they set forth an extensive catalog of traits which cannot be the basis for discrimination, including . . . sexual orientation." (citations omitted)); Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 572 (1995) (noting that public accommodations laws including the Massachusetts statute, which includes a sexual orientation discrimination prohibition, "are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination . . . ."). There can be no doubt that the City of Louisville had a rational basis for making employment discrimination on the basis of sexual orientation and gender identity unlawful. Accordingly, the court should dismiss plaintiff's Free Exercise claim and grant summary judgment in favor of defendants and defendant-intervenors.

III. THE ORDINANCE DOES NOT INFRINGE UPON PLAINTIFF'S FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH

Plaintiff contends that the Ordinance's advertising provision, see Ordinance § 98.17(D), and incitement provision, see id. § 98.17(F)(2), violate his First Amendment right to freedom of speech. Specifically, plaintiff claims that both provisions are facially overbroad, and that the advertising provision impermissibly regulates non-commercial speech.

A. The Advertising Provision is a Permissible Regulation of Commercial Speech

The advertising provision of the Ordinance states that it is unlawful for an employer "to print, publish, [or] circulate . . . any notice or advertisement relating to employment by such an employer . . . indicating any preference, limitation, specification, or discrimination based on . . . sexual orientation or gender identity." Ordinance § 98.17(D). As previously noted, plaintiff testified that he has considered, in the context of an advertisement soliciting applications for a particular vacancy in his medical practice, publicizing either that "sexually disoriented" individuals may apply "if they are willing to repent and accept Jesus," Hyman Dep., 98:2-8, or that only "pro-life, pro-family applicants need apply."Id., 100:1-3. Plaintiff contends that these hypothetical advertisements would "do something more than propose possible employment" and are therefore entitled to heightened protection as non-commercial speech. Plaintiff also claims that the advertising provision is facially overbroad. These arguments must fail because the Ordinance's advertising provision, properly construed, applies only to commercial speech, and because the advertisements proposed by plaintiff constitute nothing more than commercial speech used in furtherance of an illegal transaction, which is not protected by the First Amendment.

Although there has been no definitive judicial construction of the advertising provision, it is well settled that a state statute that has not been authoritatively construed by a state court should be construed by a federal court in a manner that will avoid constitutional questions. Dale Baker Oldsmobile, Inc. v. Fiat Motors of North America, Inc., 794 F.2d 213, 221 (6th Cir. 1986) (citing New York v. Ferber, 458 U.S. 747, 769 n.24 (1982)); see also Frisby v. Schultz, 497 U.S. 474, 483 (1988) ("statutes will be interpreted to avoid constitutional difficulties"). Given that the advertising provision is targeted only at an "employer" or other entity prohibited from discriminating under the Ordinance, see Ordinance § 98.17(D), it is logical to construe the language "any notice or advertisement relating to employment by such employer" as intending only to limit an employer's advertisement of a vacant position or an advertisement soliciting applications from prospective employees. So construed, the Ordinance regulates speech that does "no more than propose a commercial transaction." Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385 (1973).

Under this construction, the advertising provision is clearly constitutional. Discrimination on the basis of sexual orientation or gender identity is unlawful in Louisville; hence, plaintiff's proposal to include a preference or limitation based on sexual orientation in an advertisement soliciting applicants for a vacancy in the medical practice amounts to nothing more than commercial speech proposing an illegal transaction. Such speech is not protected by the First Amendment. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 646 n.12 (1985) ("advertisements . . . may be forbidden because they propose an 'illegal transaction'"); Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 496 (1982) ("government may regulate or ban entirely" speech "proposing an illegal transaction"); Pittsburgh Press, 413 U.S. at 389 (any First Amendment interest in advertising an ordinary commercial proposal is absent when the commercial activity itself is unlawful); Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 652 n.9 (6th Cir. 1991) (recognizing that commercial speech proposing illegal transaction falls "outside the ambit of first amendment protection").

Further, the advertising provision, properly construed, is consistent with the construction of similar provisions of federal civil rights laws and eliminates any concern that the Ordinance might prohibit non-commercial, political viewpoints against the Ordinance. (18) See Pittsburgh Press, 413 U.S. at 391 (similar ordinance did not prohibit plaintiff from publishing and distributing advertisements commenting on the ordinance, the enforcement authority, or the propriety of prohibiting discrimination in employment); United States v. Hunter, 459 F.2d 205, 212 n.9 (4th Cir. 1972) (advertising prohibition in Fair Housing Act does not prohibit newspaper from editorially advocating repeal of the act); United States v. Northside Realty Assoc'n, Inc., 474 F.2d 1164, 1170-71 (5th Cir. 1973) (declaring one's belief that Fair Housing Act is unconstitutional is not a violation of the Act); cf. Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, 902 F. Supp. 492, 521-22 (D.N.J. 1995) (minister and religious group not prohibited by civil rights ordinance from expressing view that homosexuality and bisexuality are wrong), aff'd, 99 F.3d 101 (3rd Cir. 1996). Thus, contrary to plaintiff's argument that the Ordinance forbids employers from publishing any advertisement that "express[es] criticism of the [Ordinance] or of the hiring of homosexuals, bisexuals or transgendered individuals in general," Pl's. Mem., at 32, Dr. Hyman is not prohibited from making his "stand" known by speaking out against the Ordinance. Id. at 30.

B. The Incitement Provision Should be Construed in Accordance with Applicable First Amendment Precedent

The Ordinance makes it unlawful for any person to "aid, abet, incite, compel or coerce any person to engage in any of the practices" prohibited by the Ordinance. Ordinance § 98.17(F)(2). Plaintiff contends that this provision violates the First Amendment because the term "incite" is "not limited to incitements to imminent lawless action which is likely to produce such action." Pl's. Mem., at 33. However, in accordance with the principle that federal courts should construe statutes to avoid constitutional difficulties, (19) this Court should construe the term "incite" consistently with Brandenburg v. Ohio, 395 U.S. 444 (1969), and its progeny. Because the word "incite" is capable of such a limiting construction, plaintiff's overbreadth challenge must fail. See Ferber, 458 U.S. at 769 n.24 ("[i]f the invalid reach of the law is cured, there is no longer reason for proscribing the statute's application to unprotected conduct). Alternatively, if this Court were to hold that the term "incite" is not capable of a limiting construction, the proper course of action would be to sever the term rather than invalidate the provision in its entirety. (20) See Ferber, 458 U.S. at 769 n.24.

For these reasons, neither the advertising provision nor the incitement provision violate plaintiff's right to freedom of speech. Accordingly, summary judgment should be granted in favor of defendants and defendant-intervenors, and plaintiff's free speech claims should be dismissed.

IV. THE EXEMPTION DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE

Plaintiff claims that the Ordinance's exemption of religious institutions violates his rights under the Equal Protection Clause. See Ordinance §§ 98.00 & 98.18(B). Specifically, plaintiff contends that because the classification at issue "operates at the core of the First Amendment's mandate of neutrality and non-preference among religious believers," Pl.'s Mem., at 36, the exemption is subject to strict scrutiny and therefore constitutional only if it is "necessary to achieve a compelling governmental interest." Id. In advancing this argument, however, plaintiff ignores the applicable case law, which establishes both that an exemption for religious institutions does not invoke the application of strict scrutiny, and that such an exemption passes constitutional muster because it is rationally related to legitimate governmental interests.

In Amos, 438 U.S. 327, the Supreme Court considered a challenge to the exemption for religious institutions contained in Title VII. The Amos plaintiffs challenged that exemption as violating their rights under the Establishment and Equal Protection Clauses of the United States Constitution. Noting that "[t]here is ample room under the Establishment Clause for 'benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference,'" 483 U.S. at 334 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 669 (1970)), the Court in Amos dismissed the Establishment Clause claim. The Court noted specifically that "it has never indicated that statutes that give special consideration to religious groups are per se invalid," Amos, 438 U.S. at 338, and that the government "'may (and sometimes must) accommodate religious practices.'" Amos, 483 U.S. at 334 (quoting Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144-45 (1987)). (21)

Here, the Ordinance is not aimed at endorsing or inhibiting a particular religion or its practices. See Section II.A, supra. On its face, the exemption at issue applies equally to all religious institutions. The Ordinance and its exemption therefore do not violate the Establishment Clause.

In disposing of the Equal Protection challenge in Amos, the Court rejected the plaintiffs' argument that Title VII's exemption for religious institutions was subject to strict scrutiny. 483 U.S. at 339. It concluded: "In cases such as these, where a statute is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion, we see no justification for applying strict scrutiny . . . ." Id. That same reasoning applies here. The Ordinance, which is neutral on its face, is not subject to strict scrutiny.

Thus, the proper inquiry is "whether [the government] has chosen a rational classification to further a legitimate end." Id.; see also Williamson v. Lee Optical of Oklahoma, 348 U.S.483, 487-88 (1955). As the Supreme Court has observed, rational basis scrutiny "is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause." Stanglin v. Dallas, 490 U.S. 19, 26 (1989). A classification that has some reasonable basis does not offend the Constitution because it is "imperfect" or because "'in practice it results in some inequality.'" Dandridge v. Williams, 397 U.S. 471, 485-86 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)).

Applying rational basis review to Title VII's exemption for religious institutions, the Court in Amos found it to be "rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions." 483 U.S. at 339. Likewise, here the City properly could exempt religious institutions from the Ordinance to avoid interfering in the exercise of religion unnecessarily. The City also could have chosen to exempt religious institutions, but not religious individuals, for reasons of administrative convenience. If individuals could claim the exemption, then all employers potentially could claim eligibility, thus undermining the Ordinance's prohibitions on employment discrimination and forcing courts to address the sincerity of individuals' religious beliefs. Cf. Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1483 (6th Cir. 1995) (upholding a district court's determination that an exemption for religious charities and organizations was "rationally related to the legitimate governmental interest in preventing fraud").

In sum, there are a number of legitimate reasons for exempting religious institutions from the Ordinance's employment discrimination prohibitions. Accordingly, summary judgment should be granted in favor of defendants and defendant-intervenors, and plaintiff's Equal Protection claim should be dismissed.

V. THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE

Plaintiff's contention that provisions of the Fairness Ordinance are unconstitutionally vague lacks merit. Plaintiff rests this due process claim on what he contends are the Ordinance's vague definitions of "sexual orientation" and "gender identity." The Ordinance defines "sexual orientation" as "[a]n individual's actual or imputed heterosexuality, homosexuality, or bisexuality." Ordinance § 98.16. "Gender identity" is defined as: "(A) Having a gender identity as a result of a sex change surgery; or (B) Manifesting, for reasons other than dress, an identity not traditionally associated with one's biological maleness or femaleness." Id.

"The void-for-vagueness doctrine reflects the principle that 'a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.'" Roberts, 468 U.S. at 629 (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). In considering plaintiff's void-for-vagueness claim, this Court must determine whether the law "fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" or "if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, __ U.S. __, 120 S. Ct. 2480, 2498 (2000); see also Belle Maer Harbor v. Charter Township of Harrison, 170 F.3d 553, 556 (6th Cir. 1999). Because the Ordinance is a civil statute regulating commercial conduct, it is reviewed under a standard less strict than that applied to criminal statutes, Village of Hoffman Estates, 455 U.S. at 498; Bell Maer Harbor, 170 F.3d at 557, or to statutes restricting free speech, Village of Hoffman Estates, 455 U.S. at 495 n.7; see also Pinnock v. International House of Pancakes Franchisee, 844 F. Supp 574, 580 (S.D. Cal. 1993) (noting that plaintiff challenging civil statute regulating commercial conduct "can successfully sustain its challenge only if he can prove that the enactment specifies 'no standard of conduct . . . at all'" (quoting Village of Hoffman Estates, 455 U.S. at 489 & n.7)). (22)

The fact that "sexual orientation" is not defined beyond a list of its sub-categories does not render the Ordinance unconstitutionally vague. See Belle Maer Harbor, 170 F.3d at 558. The concept, including its sub-categories of homosexual, bisexual, and heterosexual orientation, is commonly understood in our society. In any event, "sexual orientation" appears in the United States Code, see, e.g., 28 U.S.C.A. § 994, note (providing for an enhancement of a defendant's sentence for intentionally selecting a victim because of actual or perceived sexual orientation); 28 U.S.C. § 534 (requiring the collection of data regarding hate crimes based on "sexual orientation," among other categories), and is used in at least eight provisions of the Code of Federal Regulations. (23) Further, "sexual orientation" appears in at least three provisions of the Kentucky Code, (24) each time without being defined. (25)

Similarly, "gender identity" is a concept with which "people of common intelligence" are familiar. At a minimum, most individuals reading the definition of gender identity in the Ordinance would comprehend that they are prohibited from discriminating against individuals who have undergone a sex change operation or whose behavior deviates from that traditionally associated with their biological gender. See Ordinance § 98.16.

In sum, the Ordinance and its definitions provide ample notice of the conduct they prohibit. Accordingly, this Court should dismiss plaintiff's Due Process claim and grant summary judgment in favor of defendants and defendant-intervenors.

VI. PLAINTIFF CANNOT OBTAIN AN EXEMPTION TO THE ORDINANCE BASED ON AN ALLEGED INFRINGEMENT ON HIS RIGHT TO FREEDOM OF ASSOCIATION

Plaintiff has alleged that the challenged provisions of the Ordinance "burden[] substantially and, therefore, illegally" his right to freedom of association under the First Amendment, Complaint, ¶ 43, although he has not moved for summary judgment on this basis. Nevertheless, this cause of action must be dismissed, as plaintiff cannot state any association right with other employees of his professional services corporation, a for-profit entity engaged in commerce.

The Supreme Court has recognized two categories of association entitled to constitutional protection. See Roberts, 468 U.S. at 617-18. First, the First Amendment provides that "choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State" in order to preserve "a fundamental element of personal liberty." Id. at 618. Second, the First Amendment guarantees the "right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion" as "an indispensable means of preserving other individual liberties." Id. Plaintiff does not have a claim under either category.

A. Plaintiff's Relationships with His Corporation's Employees Do Not Constitute an Intimate Association

The freedom of intimate association "protects those relationships, including family relationships, that presuppose 'deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.'" Board of Directors of Rotary, Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987) (quoting Roberts, 468 U.S. at 619-20)). The Court in Roberts noted that examples of such associations are "those that attend the creation and sustenance of a family" including marriage, childbirth, "the raising and education of children," and "cohabitation with one's relatives." Roberts, 468 U.S. at 619.

Plaintiff cannot claim an intimate association right with other current or future employees of his for-profit business, because such employment relationships are not the type of family-like relationships in which individuals share deeply personal aspects of their lives. "[T]he Constitution undoubtedly imposes constraints on the State's power . . . that would not apply to regulations affecting the choice of one's fellow employees." Roberts, 468 U.S. at 620; see also id. at 631 (O'Connor, J., concurring) (intimate association rights do not apply to "organization[s] whose activities are not "'private' in any meaningful sense of that term"). Plaintiff is a partner in a professional services corporation with six full-time employees and one part-time employee. Pl's Mem., at 2; Hyman Dep., 17:3-5, 21:16-17, 24:2-25:21. The medical practice is a tax-paying entity. Id., 22:19-20. Plaintiff and his partner derive their livings from the earnings of the corporation, and all other employees of the corporation are paid for their work. Id., 21:18-25. As plaintiff admitted, the only purpose of the corporation is "to provide medical services to patients." Id., 22:13-18. The professional and customary relationships among plaintiff and his employees simply cannot be characterized as a private, intimate association. (26)

B. Plaintiff's Relationships with His Corporation's Employees Do Not Constitute an Expressive Association

In Roberts, the Court recognized that freedom of association serves an "instrumental" value in promoting First Amendment freedoms. 468 U.S. at 618. Consequently, the First Amendment protects the "right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Id. at 622.

As a medical professional acting as an employer, plaintiff apparently claims that he has a freedom of association right to discriminate. But the Supreme Court has specifically rejected the freedom-of-association defense in cases involving discrimination affecting employment opportunities. In Hishon v. King & Spalding, 467 U.S. 69, 78 (1984), the Court considered and rejected a freedom of expressive association defense when raised by a law firm that had denied partnership status to a female associate. The Court in Hishon noted that the law firm had not demonstrated "how its ability to fulfill [a contribution to the ideas and beliefs of our society] would be inhibited by a requirement that it consider [the former associate] on her merits," id. (citation omitted), and, in any event, noted that "[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections." Id. (citing Norwood v. Harrison, 413 U.S. 455, 470 (1973)). And in Railway Mail Ass'n v. Corsi, 326 U.S. 88 (1945), the Supreme Court rejected a freedom of association defense by a labor union, which had denied individuals membership and thus faced the threat of enforcement of a local law banning labor organizations from engaging in racial discrimination. The Court noted that "[w]e see no constitutional basis for the contention that a state cannot protect workers from exclusion solely on the basis of race, color, or creed by an organization, functioning under the protection of the state, which holds itself out to represent the general business needs of employees." Id. at 94. The Court thus has rejected the freedom of association defense in the employment context even though law firms and labor unions are much more likely than a medical practice to engage in advocacy or other expressive activity. Indeed, we are unaware of a single business that has successfully advanced a freedom of association defense in response to a federal employment discrimination claim, even though Title VII has been in effect for more than 36 years and even though employment nondiscrimination prohibitions have been imposed on private businesses working on federal government contracts for nearly 60 years. See Contractors Ass'n v. Secretary of Labor, 442 F.2d 159, 168-71 (3d Cir. 1971) (discussing history of Executive Orders applying nondiscrimination requirements to federal contractors).

The Supreme Court even has rejected the freedom of association defense in cases involving non-profit membership organizations that clearly engaged in expressive activity. For example, in Roberts, the Court rejected a claim by the Jaycees, "a nonprofit membership corporation," that being forced to admit women to full membership positions would violate the group's expressive association rights. 468 U.S. at 612, 622-29. In Rotary, the Court rejected the claim by Rotary International, a "nonprofit corporation," that a California statute that required California Rotary Clubs to admit women members violated their right to freedom of expressive association. 481 U.S. at 539, 548-49. And in New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988), the Court rejected the claim by a "nonprofit corporation, which essentially consist[ed] of a consortium of 125 other private clubs and associations in the State of New York," id. at 9, that a New York City anti-discrimination ordinance would violate its expressive association rights. Id. at 10-14. (27)

The recent decision of the Supreme Court in Boy Scouts of America v. Dale, __ U.S. __, 120 S. Ct. 2446 (2000), is not to the contrary. The Court in Dale found that the Boy Scouts, a private, nonprofit membership group organized to inculcate values in children, id. at 2451, and that retained an organizational viewpoint with respect to homosexuality, id. at 2453, could exclude gay people from leadership positions in order to avoid "forc[ing] the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior." Id. at 2454. But the Court in Dale did not retreat from its prior decisions in Corsi, Hishon, Roberts, Rotary, and New York State Club Association. Rather, it reasoned that "forced inclusion" of a gay man seeking a leadership position as an assistant scoutmaster in such a private membership organization inculcating values in children "would significantly alter its expression," thereby violating its associational rights. Id. at 2455.

There are no meaningful similarities between plaintiff's claim here and the Boy Scouts' claim in Dale. Unlike the Boy Scouts, plaintiff is engaged in a for-profit business with other employees of the corporation, whose sole function is to provide medical services to patients. Hyman Dep. 22:13-18. Moreover, as a commercial entity, plaintiff cannot demonstrate that he and the other employees express, in their commonplace employment relationships, any particular message at all, and certainly not like the Boy Scouts' inculcating of values in children. (28) Clearly, Dale does not apply here. This case is controlled by Hishon, Corsi, Roberts, Rotary, and New York State Club Association. Accordingly, plaintiff's free association claim should be dismissed, and summary judgment should be granted in favor of defendants and defendant-intervenors.

CONCLUSION

Plaintiff's motion for summary judgment should be denied and defendants' and defendant-intervenors' cross motions for summary judgment should be granted on the claims discussed herein.

Dated: August 14, 2000

Washington, D.C.

Respectfully submitted,

BILL LANN LEE
Assistant Attorney General
Civil Rights Division

By: _____________________________
MEREDITH L. BURRELL
AARON D. SCHUHAM
JANIE ALLISON SITTON
Attorneys
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P.O. Box 65968
Washington, D.C. 20035-5968
(202) 616-9507

ENDNOTES

1. Plaintiff also has filed a second complaint with this Court advancing nearly identical challenges to the Jefferson County Ordinance ("County Ordinance"), which likewise prohibits employment discrimination on the basis of sexual orientation and gender identity. See County Ordinance, ch. 92. By Order dated March 9, 2000, this court consolidated plaintiff's cases against the City of Louisville and Jefferson County. We are aware that a Kentucky trial court has ruled that the County Ordinance is inapplicable to employers within Louisville city limits. As a result, and for purposes of simplicity, we address only the City Ordinance in this memorandum. Nevertheless, should a Kentucky appeals court conclude that the County Ordinance also applies to plaintiff, the United States' positions as to plaintiff's federal constitutional challenges to the City Ordinance would apply to plaintiff's claims against the County Ordinance as well.

2. Federal courts, however, repeatedly have rejected employers' First Amendment defenses to Title VII claims. See, e.g., Hishon v. King & Spaulding, 467 U.S. 69, 78 (1984) (freedom of speech and association); Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1246-47 (10th Cir. 1999) (freedom of speech); Hopkins v. Price Waterhouse, 920 F.2d 967, 979-80 (D.C. Cir. 1990) (freedom of association); EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1367-69 (9th Cir. 1986) (free exercise of religion); United States v. International Longshoreman's Ass'n, 460 F.2d 497, 498, 501 (4th Cir. 1972) (freedom of association); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1534-36 (M.D. Fla. 1991) (freedom of speech); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 389-90 (1992) (observing in dictum that free speech defense to Title VII sexual harassment case would be unavailing because "sexually derogatory 'fighting words,' among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices"). The United States has diligently prosecuted other civil rights cases against defendants asserting First Amendment rights and has an interest in ensuring consistency in the development of case law in this area. See , e.g., United States v. Columbus Country Club, 915 F.2d 877, 879, 885 (3d Cir. 1990).

3. The Title VII exemption applies to any employer that is a "religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on" by such an institution " of its activities. 42 U.S.C. § 2000e-1(a). The Ordinance contains an exception for religious institutions to "employ an individual on the basis of his religion to perform work connected with the carrying on by such [entity] of its religious activity," Ordinance § 98.18(B), but additionally provides an exemption for discrimination on the bases of sexual orientation and gender identity for any "religious institution, or to an organization operated for charitable or educational purposes, which is operated, supervised, or controlled by a religious corporation, association, or society." Id. § 98.00.

4. Similarly, because they contain exemptions for religious institutions, the United States' enforcement of the Fair Housing Act, see 42 U.S.C. § 3607(a), the Americans with Disabilities Act, see 42 U.S.C. § 12113(c), and Title IX of the Education Amendments of 1972, see 20 U.S.C. § 1681(a)(3), could be impeded.

5. Because they do not directly implicate the interests of the United States, we do not address plaintiff's state law claims in this memorandum.

6. The party invoking federal jurisdiction has the burden of establishing the requisite standing to sue, and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. with the manner and degree of evidence required at successive stages of litigation." Lujan, 504 U.S. at 561. Thus, plaintiff's burden at the summary judgment stage is not merely to allege facts that, if proven, would demonstrate standing, but rather to point to evidence in the record demonstrating that he is a proper party to maintain this action. See id.

7. This relaxed standard applies only to First Amendment facial challenges to allegedly overbroad statutes. See Adult Video Ass'n, 71 F.3d at 567; Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135 (6th Cir. 1994). Therefore, the relaxed standard applies only to plaintiff's free speech claims, since those are the only First Amendment challenges based on overbreadth that he presents.

8. Whether Dr. Hyman could be held liable for violation of the Ordinance if these circumstances arise is a question that, while not ripe for review, is nevertheless addressed on its merits in Section II, infra.

9. Although plaintiff testified that he discussed with his attorney the "idea" of including a statement in a recent employment advertisement that "all sexually disoriented" individuals are welcome to apply if they "are willing to repent and accept Jesus," Hyman Dep., 98:2-19, his testimony reveals that his decision not to include this language in an advertisement was not based on a fear that by doing so he would be in violation of the advertising prohibition and subject to penalty under the Ordinance. Instead, Dr. Hyman decided not to place such an advertisement because he thought that doing so might "incite" a gay, lesbian, bisexual, or transgendered person to apply for the position. Hyman Dep., 99:16-21.

10. Although Dr. Hyman answered yes to the question "Have you ever faced a situation with someone who is lesbian . . . seeking a job at your office?," Hyman Dep, at 42:4-7, his follow-up testimony clarifies that a lesbian individual did not apply for a job in his medical practice. Rather, when his niece, who is a lesbian, was looking for a job, Dr. Hyman offered to allow her to work for him if she would "repent[] and change[] her ways." Hyman Dep., at 42:11-15. Dr. Hyman admitted that his niece did not seek employment with him "directly." Id.

11. Although it is true that, in appropriate circumstances, a plaintiff need not wait until an arrest or prosecution actually occurs before challenging an allegedly unconstitutional statute, "the threat of enforcement must at least be 'credible,'" Thomas, slip op. at 9508; Greater Cincinnati Coalition, 56 F.3d at 716. "When plaintiffs 'do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,' they do not allege a dispute susceptible to resolution by a federal court." Babbitt v. United Farm Workers Nat'l Union, , 442 U.S. 289, 298-99 (1979) (citation omitted).

12. Plaintiff's medical practice partner testified that when he joined the practice in 1996, he understood that plaintiff intended to retire soon. Transcript of April 25, 2000 Deposition of Perry Cassady, M.D., ("Cassady Dep.") (excerpts attached as Exhibit C hereto), 64:22-65:9.

13. For the same reasons, plaintiff has not met his burden of establishing standing to maintain his free association claim. The record is devoid of any evidence relating to an injury to plaintiff's free association rights, and plaintiff did not even address this claim in his memorandum in support of his motion for summary judgment.

14. Even were this Court to determine that plaintiff has standing to pursue his constitutional claims, such standing would be limited to challenging the prohibition against discrimination in employment on the basis of sexual orientation or gender identity, and would not extend to other protected groups delineated in the Ordinance. Additionally, if a Kentucky appellate court were to determine that the County Ordinance applies to covered employers in Louisville, see supra n.1, plaintiff's standing would be similarly limited in challenging the County Ordinance.

15. The Court in Smith also noted that it had applied a form of strict scrutiny to neutral, generally applicable laws in certain "hybrid situation[s]" involving "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the rights of parents . . . to direct the education of their children." 494 U.S. at 882, 891 (citations omitted). As plaintiff concedes, Pl.'s Mem., at 20 n.13, however, the Sixth Circuit has rejected the "hybrid rights" theory. Kissinger v. Board of Trustees, 5 F.3d 177, 180 (6thCir. 1993).

16. Because strict scrutiny should not be applied in this case, this brief does not address plaintiff's strict scrutiny claims; in particular, we will not address plaintiff's claims that application of the Ordinance would substantially burden plaintiff's religious exercise and that the City does not have a compelling interest that would justify the denial of religious exemptions to the Ordinance. We note, however, that courts have held that the federal government's interest in eradicating certain forms of discrimination is sufficiently compelling to justify denial of religious exemptions. See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (race discrimination); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398-99 (4th Cir. 1990) (sex discrimination); Fremont Christian School, 781 F.2d at 1368-69 (sex discrimination).

17. Plaintiff's reliance on the Supreme Court's decision in Frazee v. Employment Security Dep't, 489 U.S. 829 (1989), is misplaced. Frazee did not hold, as plaintiff contends, see Pl.'s Mem., at 20, that government cannot enact legislation that treats religious organizations collectively differently than religious individuals collectively. Instead, in overturning State denial of unemployment compensation benefits to an applicant whose refusal to work on Sunday was not based on tenets or dogma of an established religious sect as violating the Free Exercise Clause, the Court simply noted that an individual need not belong to a "particular religious organization" in order to prove the sincerity of a particular religious belief. Id. at 834.

18. This construction of the advertising provision also alleviates the need for this Court to consider Dr. Hyman's contention that the provision is facially overbroad, as overbreadth doctrine does not apply to commercial speech. See Hoffman Estates, 455 U.S. at 496-97. This is also consistent with the principle that when a "statute is challenged as overbroad, federal courts should construe the statute to avoid constitutional problems if possible . . . A statute should be invalidated for overbreadth only as a last resort." United States v. Long, 831 F. Supp. 582, 587 (W.D. Ky. 1993) (citing New York v. Ferber, 458 U.S. 747 (1982)).

19. See Frisby, 497 U.S. at 483; Ferber, 458 U.S. at 769 n.24.

20. Significantly, the only term of this provision challenged by plaintiff is the term "incite." Plaintiff has not challenged the constitutionality of the Ordinance's prohibition against aiding, abetting, coercing, or compelling action made unlawful by the Ordinance. Any suggestion by plaintiff that these terms are unconstitutional cannot be sustained, as similar provisions have routinely been upheld against First Amendment challenges because they are valid regulations of conduct that only affect speech incidentally or secondarily. See National Organization for Women v. Operation Rescue, 37 F.3d 646, 655-56 (D.C. Cir. 1994) (fact that one may aid and abet through speech does not make regulation of aiding and abetting unlawful activity problematic); Jews for Jesus, Inc. v. Jewish Community Relations Council of New York, Inc., 968 F.2d 286, 296 (2d Cir. 1992) (statute that prohibited aiding, inciting, compelling, or coercing violation of civil rights law could be constitutionally applied to expressive conduct of religious group, even if expressive conduct was religiously motivated); Florio, 902 F. Supp. at 518-20 (regulation that prohibited aiding, abetting, coercing, or compelling unlawful discrimination did not impermissibly regulate expressive conduct based on its message).

21. Plaintiff's reliance on Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), Pl's Mem., at 37, is unwarranted. Bullock dealt with the conferral of an economic benefit--an exemption from a state sales tax--to religious periodicals. There is no such economic benefit at issue in this case. See Amos, 483 U.S. at 338.

22. Plaintiff attempts to challenge the Ordinance on its face, alleging that the statute reaches constitutionally protected conduct and that it amounts to a criminal penalty. For the reasons discussed above, see Sections II-III, supra, neither Plaintiff's free exercise nor free speech rights are infringed by the Ordinance's anti-discrimination provisions. Nor does the contemplated sanction merit the more rigid scrutiny courts apply to statutes imposing criminal penalties. Cf. Pinnock, 844 F. Supp at 581 n.9 (rejecting plaintiff's argument that the imposition of civil penalties of up to $50,000 under Title III of the Americans with Disabilities Act subjected that statute to the higher standards applying to " quasi-criminal" statutes). Regardless, a facial challenge would fail for the same reasons the provisions pass constitutional muster as applied to Dr. Hyman: the terms "sexual orientation" and "gender identity" are commonly understood, and the Ordinance therefore provides sufficient notice of the prohibited conduct.

23. 7 C.F.R. § 15d.2(a); 28 C.F.R. § 17.41(c); 28 C.F.R. § 42.1(a); 31 C.F.R. § 0.214(a); 31 C.F.R. § 700.13(a); 32 C.F.R. § 147.6(a); 34 C.F.R. § 668.46(c)(1)(vii)(B)(3); 50 C.F.R. § 679.50(i)(3)(ii) .

24. E.g., Ky. Rev. Stat. Ann. §§ 304.12-013(5)(c), 525.113(1), 532.031(1).

25. Plaintiff's reliance on the Sixth Circuit's decision in Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997), to support his vagueness argument regarding the Ordinance's definition of "sexual orientation" is misplaced. The issue before the court in Equality Foundation was whether sexual orientation constituted a suspect or quasi-suspect classification under the Equal Protection Clause. The court concluded that "under Bowers v. Hardwick, [478 U.S. 186 (1986)] . . . and its progeny, homosexuals did not constitute either . . . because the conduct which defined them as homosexuals was constitutionally proscribable." Id. at 292-93 (citation omitted). The court's difficulty defining gay people apart from their conduct does not detract from the fact that it ultimately identified the group and upheld a statute that applied specifically to its members.

In any event, like sexual orientation and gender identity, race, national origin, religion, and sex may not always be apparent. That does not, however, render statutes prohibiting discrimination on those bases unconstitutionally vague.

26. For the same reason, plaintiff cannot invoke a right of intimate association with his patients. In any event, plaintiff admitted that he would not refuse to treat a homosexual, bisexual, or transgendered patient and would continue to allow them to visit his office for treatment. Hyman Dep., 162:22-163:24; 164:16-17.

27. In concurring opinions in Roberts and New York State Club Association, Justice O'Connor echoed the reasoning of the Court in Hishon, arguing that businesses cannot avail themselves of expressive association rights because the purpose of such groups is to engage the marketplace, rather than express a particular viewpoint. See Roberts, 468 U.S. at 636 (O'Connor, J., concurring) ("Once [a group] enters the marketplace of commerce in any substantial degree it loses the complete control over its membership that it would otherwise enjoy if it confined its affairs to the marketplace of ideas."); id. at 637 (noting that the law firm in Hishon, as a "commercial enterprise," retained "no First Amendment immunity from employment discrimination laws"); see also New York State Club Association, 487 U.S. at 20 (O'Connor, J., concurring) ("Predominantly commercial organizations are not entitled to claim a First Amendment associational or expressive right to be free from the anti-discrimination provisions triggered by the law.").

28. Ironically, unlike the partnership in Hishon, in which the partnership was committed to its freedom of association defense, here plaintiff's sole partner, who owns a 50% interest in the corporation, see Hyman Dep., 18:9-15; Cassady Dep., 16:3-4, 8-9, disagrees with plaintiff regarding his claims and would refuse to discriminate himself. Dr. Cassady testified that "[p]eople I work with or hire . . . don't have to be like me," and that he did not have "strong views one way or the other" regarding sexual orientation or gender identity. Cassady Dep., 89:20-21; 90:12-17. He not only made clear that Dr. Hyman has never asked him to "screen out" or "hire or fire" anyone based on plaintiff's religious beliefs, but that he "would not agree to do" so. Id. 98:8-12; see also id. at 76:13-16; 77:6-9, 14-16; 78:15-18 (Dr. Cassady would "not agree" with and would "object to" an ad stating that gay, lesbian, or bisexual applicants would be unwelcome to apply for jobs with the medical practice). Indeed, Dr. Cassady testified that he had never had any conversations with Dr. Hyman regarding lesbians or gay men prior to the filing of this lawsuit, id. at 94:20-24, and that he "didn't feel like [he is] fighting the same fight" as Dr. Hyman. Id. at 22:12-15.

Updated August 6, 2015

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