A BEAGLE mutt named Sparky saw the flames first. They advanced across the roof of Al’s house, consuming his son’s attic bedroom and sending clouds of charcoal-colored smoke into the cold February sky, just above Sparky’s favorite patch of grass and dirt on the front lawn of the house next door. He had been taken in as a puppy by Al and Mimi after he’d wandered into their yard, scrawny and missing a good chunk of his tail. Neighbor Roberta Jackson adopted him, and he spent most mornings sizing up the comings and goings of his quiet, leafy neighborhood, where kids went from house to house shoveling snow every winter.
Just before lunchtime, Sparky started yelping and Jackson stuck her head outside to check on things. The air was thick with smoke, and Al’s roof, coated with snow and ice, was burning. Jackson and her late husband, a retired garbage collector, had known Al and Mimi for years. Jackson liked to keep watch over the children when they came home from school and had offered her backyard to Al’s expanding vegetable garden. Now she raced to the call the fire department and Al at his law office.
As firefighters prepared to take a hatchet to the front door, Jackson ran over with a spare key. The house was empty except for the family dog, which was quickly led outside. Mimi arrived home first, and though the fire was out, she gasped at the steaming, gaping hole in the roof. Inside, standing water covered her grandmother’s oriental rugs, her mother’s linen tablecloths, her children’s stuffed animals. The wood floors were buckled. Looks like corduroy, Mimi thought, fighting shock and tears.
Al pulled up next. “Could it have been intentionally set?” he asked one of the firefighters, sizing up their home of nearly twenty-five years. No one was sure.
As arson investigators picked through the rubble, Al thought about the pipe bombs that had been planted at the women’s health centers he represented in the 1980s and his latest foray into the volatile world of Cincinnati politics, this time pitted against a powerful coalition of activists that had ushered in Issue 3. After the measure passed, Al and Scott Greenwood had decided to sue the city in federal court.
Neither attorney would be paid for their time unless they won the case and a judge ordered the City of Cincinnati to cover the costs. Al was working entirely on contingency, and every time he signed on new clients, he made sure they knew that reforms—like the monument he would insist go on the front lawn of a police department that failed to protect a young domestic violence victim—were just as important as money. Al had taken loans to support his casework. And now, in February 1994, his house had caught fire.
“Is there any sense that any of those people are involved in this?” Greenwood asked about their opponents on the Issue 3 case.
Al had always shrugged off mild forms of menacing behavior, not wanting to worry Mimi and not particularly concerned that anything would happen anyway. Only once, a year later, would Al ask his family to be cautious, taping John Brockhoeft’s picture to the refrigerator when the abortion clinic bomber was released from federal prison. But Brockhoeft was still behind bars when the fire at Al’s house started, so he looked at Greenwood and shrugged. “We just don’t know.”
With a trial over Issue 3 only a few months away, Al settled his family into a neighbor’s spare bedrooms and went back to work. Already the case was drawing national interest and a coalition of conservative groups had hired several prominent lawyers to defend Issue 3 in court, including Michael Carvin, a sharp, young litigator who had been a deputy assistant attorney general in the U.S. Department of Justice. One of his cocounsels was Robert Skolrood, with a legal career advocating for Christian fundamentalists as the executive director of the National Legal Foundation, launched in the 1980s by Reverend Pat Robertson.
They would make a formidable team, and over late nights in Al’s conference room, Al and Scott Greenwood plotted legal strategy. Though the gay community had celebrated the Human Rights Ordinance, Al had never really thought much about the law because it didn’t permit aggrieved parties to file civil lawsuits or require companies to reinstate employees after they had been fired.
But even a flawed law was better than no law at all, and Al had decided it could be sharpened over time. Now that couldn’t happen because Issue 3 prohibited the city council from ever passing another law that protected the gay community from discrimination. That prohibition, which applied only to Cincinnati’s gay residents—not to women, African Americans, the disabled, the elderly—seemed to Al like prejudice of the worst sort.
He started drafting arguments and over time began to realize that the case, among the first of its kind, would seek to answer the most fundamental questions about what it meant to be gay. He would call on lawyers, political scientists, a psychologist, and gay men and women to explore the ill will that Al believed had targeted Cincinnati’s gay community.
He was immensely relieved when the fire department called to say that malfunctioning heating coils, not foul play, had sparked the fire at his house. Just weeks before the biggest trial of Al’s career, the house was repaired and Al and his family moved back home.
Your Honor,” the clerk in the U.S. district court announced on June 20, 1994, “this is Civil Case 1-93-773.”
On the first day of the Issue 3 hearing, Al sat perfectly straight in the quiet federal courtroom, with its wood-paneled walls and dimly lit portraits of retired judges for the Southern District of Ohio. He had been in this room many times before, for cases he could recall with perfect clarity, but this time was different.
He glanced across the room at Michael Carvin, the former deputy assistant attorney general who had traveled from Washington, D.C., to argue the case on behalf of the coalition that called itself “Equal Rights, Not Special Rights.” Carvin was sitting with Robert Skolrood, who had pushed to dismantle anti-discrimination laws in Colorado. The room was packed, filled with a mix of African American church leaders, gay rights advocates, journalists, and government officials, including an attorney who would represent the City of Cincinnati. Scott Knox was busy back at his law office, but he would duck in several times over the course of the hearing.
Seventy-four-year-old judge S. Arthur Spiegel, who had fought in the Pacific during World War II and then earned a law degree from Harvard, would hear the case. As a young lawyer in the late 1940s, Spiegel had opened his own law practice in Cincinnati after established law firms turned him down; he believed they didn’t hire Jews. Nominated to the bench by President Jimmy Carter, the judge had banned race discrimination in prisons and once allowed himself to be locked in solitary confinement so he could learn what it felt like to be alone in a prison cell. Though some lawyers considered the judge too liberal, Al believed the soft-spoken jurist had an abiding respect for the facts and the law.
“Are we ready to proceed now?” Judge Spiegel asked at nine A.M.
“Yes, Your Honor.” Al stood at a table in the front of the courtroom next to Scott Greenwood and two attorneys who had signed on as cocounsels from the national gay rights group Lambda Legal, the oldest and largest gay and lesbian legal organization in the country. Back in Al’s office, the desks and floors were strewn with files, last-minute research that would have Al, two interns from New York University, and office manager Mary Armor working late into the night every night of the trial.
Al took a quick breath and gestured to the clients sitting next to him, including several gay residents of Cincinnati. “This case will determine if government can continue to single out these unpopular citizens and deny them basic civil rights. My clients and many who stand with them sincerely hope that the answer from this court will be ‘no.’ Full rights to free speech and political participation and the right to petition your government must be guaranteed to gay citizens.”
“In short, the evidence is going to show you that, one, the factors presented to the Cincinnati voters for consideration in voting on Issue 3 amounted to an appeal to prejudice, an up-and-down vote on whether you like gays. Two, the structure of Issue 3 was designed to cut gay, lesbian, and bisexual citizens out of the political scene in Cincinnati. And three, the reasons posed to justify Issue 3 by the defendants are themselves infected with prejudice.”
Michael Carvin stood up. The thirty-eight-year-old lawyer had spent three years in the 1980s as a special assistant in the Civil Rights Division of the Department of Justice. But in private practice his libertarian leanings prevailed, and over the course of his career he would sue the federal government on a number of fronts. Carvin believed it had been infinitely rational to give the citizens of Cincinnati the same authority as legislators to decide the law on gay rights—an argument for the democratic process that would be heard again, years later, when Jim Obergefell and John Arthur filed suit against the State of Ohio.
Early in Carvin’s career, he had learned not to personalize litigation and had honed an amiable but relentless approach in the courtroom. Now he turned to Judge Spiegel and said easily, “The plaintiffs have emphasized this morning, as they have emphasized throughout this case, they have claimed that they’ve lost some fundamental right to political participation.”
“Now remember,” the judge interjected, “we aren’t arguing—”
“I understand, Your Honor.”
“I know it’s not easy to do.”
“. . . What the evidence will show in this case, Your Honor, is that Issue 3 was not discrimination. Issue 3 was not invidious, and homosexuals are not a group entitled to the special protections of the Constitution.”
Al, who would present his arguments first, called John Burlew to the witness stand. The African American trial lawyer was a member of the Ohio Civil Rights Commission and had followed the Issue 3 campaign closely. He would later become a municipal court judge.
Burlew looked at Al and described the campaign. “The message that . . . you saw appealed to the base worst emotions, I think, in people. The public debate that I was involved in primarily would result in a spokesperson relying on a passage of Leviticus or something talking about homosexuality is an abomination. That’s the word I’ll never forget coming out of that debate.”
After lunch, Carvin responded in rapid fire. “So not everyone who supported Issue 3 was irrational or a bigot, isn’t that correct?” he asked Burlew.
“I don’t want to even begin to suggest that. Of course not. A lot of honorable people supported it.”
“Right. You’re not saying you have a monopoly on all wisdom in Cincinnati, are you?”
“I would state the exact reverse of it. I don’t consider myself in that posture at all.”
“You think reasonable people could disagree on this issue, don’t you?”
“Absolutely.”
Carvin pressed on minutes later. “And you yourself are tolerant of other beliefs and lifestyle[s], are you not?”
“I hope I am.”
“You don’t agree, for example, that homosexual behavior is an abomination, do you?”
“No, I don’t.”
“. . . Nothing wrong with expressing religious viewpoints in public, is there?”
“Absolutely not.”
“It’s part of a long and noble tradition, including Martin Luther King, isn’t it?”
“Absolutely.”
“And you don’t want to restrict the religious freedom of these people?”
“Absolutely not.”
“You don’t want to force them to keep their religious beliefs to themselves, do you?”
“No.”
“Because religious freedom includes more than having beliefs in your head. It includes the ability to act on those beliefs through political participation and that sort of thing, doesn’t it?” Carvin asked.
“Correct,” replied the African American lawyer. “It also justifies slavery and other things which I disagree, all of which have biblical and religious basis.”
On the second day of the hearing, Al wanted to show Judge Spiegel that Issue 3 had been driven by distaste and even hatred for the gay community, so he called Kenneth Sherrill, a political science professor at Hunter College in New York and an expert on gay and lesbian politics. “Sir, are you saying that people just don’t like gays?” Al asked.
The professor described how a number of political scientists had been measuring public opinion since 1964. Gays, he said, were among the most disliked and politically powerless groups in the country. “There is no group in American politics that has, over such a long period of time, gotten systematic responses of cold feelings or feelings of emotional distance.”
On the third day, Al questioned African American lawyer Jerome Culp, the son of a Pennsylvania coal miner who had earned a Harvard law degree and gone on to teach employment and labor law at Duke University. Al set up an easel near the judge with the Issue 3 wording displayed on poster board.
The City Council may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian or bisexual orientation status, conduct or relationship constitutes, entitles or otherwise provides a person with the basis to have any claim of minority or protected status.
“Is Issue 3 a typical government civil rights provision?” Al asked the professor.
“No. . . . What that really does,” the law professor said, “is to single out homosexuals, lesbians, and bisexuals, in some sense to sort of put a scarlet H on their forehead, and to say that it’s all right to both individually and institutionally discriminate against them.”
“Based on your study of the history of discrimination and civil rights,” Al asked seconds later, “do you have any knowledge as to whether there’s a common prejudice against gays, lesbians, and bisexuals?”
“There’s a lot of prejudice against gays, lesbians, and bisexuals.”
“Objection,” Cincinnati’s attorney, Karl Kadon, called.
The judge responded dryly, “The Court will take notice of the fact that he’s sitting in this community and there is such things. Overruled.”
Later, Michael Carvin stood up. “Let’s substitute the words child molesters, okay, for homosexuals, lesbians or bisexuals. Issue 3 is exactly the same except I’m saying . . . child molesters. City council can’t pass laws having quotas for child molesters or protected status for child molesters. That cuts off the city council’s future options in terms of protecting child molesters, does it not?”
The law professor, knowing it was highly unlikely that any government in the country would create anti-discrimination laws for child molesters, said, “Mr. Carvin, you live in a world that I don’t.”
That afternoon, Carvin called one of his own witnesses, the Cincinnati lawyer who had drafted the ballot language for Issue 3. Al would always remember the look on Scott Greenwood’s face when Chris Finney took the stand and said, “Let’s say there’s a company picnic and someone wants to go to the company picnic and have a wholesome atmosphere where they can bring their family and expose them to the kind of moral atmosphere that they display in their home life. And yet, because of the city ordinance, we now have to have homosexual couples come to that company picnic exposed to our children and not feel as comfortable working in that atmosphere.”
Al had taken on the case as a civil rights lawyer who believed that gay people deserved to be fully engaged in the community. But Greenwood was both a lawyer and a gay man, and now his very identity was under assault. Just before the trial started, Greenwood had lost his junior associate position at the law firm where he worked. The partners offered no particular reason for it, but Greenwood assumed his work on Issue 3 had made some clients uncomfortable.
When Greenwood stood up to cross-examine Chris Finney, Al briefly wondered whether his cocounsel’s head was clear. “Can you tell me, Mr. Finney,” Greenwood asked carefully, “how sexual behavior is somehow related to whether a gay, lesbian, or bisexual person can eat in a restaurant or work in a job?”
The most contentious day of the trial came on the fifth day, when downtown buildings were getting ready to set out flags for the Fourth of July. Michael Carvin called Clemson University political science professor James David Woodard, who described gays and lesbians as “quite an active and successful and powerful political group.”
Al was agitated. “You’d agree that gays have experienced a history in this country that includes deliberate exclusion from certain occupations like the military, sensitive government posts, and various occupations, right?” Al asked the professor.
“Yes, sir.”
“And you’ll agree that for many years, homosexuality was viewed even as a mental illness?”
“Yes, I believe it was.”
“And you’ll agree that there was a period and continues to be allegations of harassment by law enforcement agencies against gays, right?”
“. . . Allegations, yes.”
“Of additional harassment by law enforcement agencies; is that correct?”
“Objection,” Carvin called. “It’s a compound question.”
“We’ll do it in two pieces,” Al said. “In the past, the police have harassed gays, right?”
“As much as I know, yes.”
“Okay. And there’s a continuing concern about fairness toward gays on behalf of law enforcement agencies, right?”
“I guess.”
Later, Al switched gears. “Should a heterosexual who is engaged in oral sex be denied the right to vote?”
“No,” the professor said.
“And there’s no history of that type of restriction in this nation, is there?”
“Not that I know of, no.”
“Should a homosexual who is engaged in oral sex be denied the right to vote?”
“No one should be denied the right to vote, Counselor.”
“Should a heterosexual who has engaged in oral sex be denied the right to hold public office?”
“No.”
“And should a homosexual who has engaged in oral sex be denied the right to hold public office?”
“Don’t know of anyone who is denied. No.”
Al pushed forward. “Should a heterosexual who is engaged in oral sex be permitted to petition the Cincinnati City Council and seek civil rights legislation?”
“Lobby city council? I suppose so.”
Al paused. “And should a homosexual who has engaged in oral sex be permitted to petition city council and seek civil rights legislation?”
“Sure.”
Al had what he wanted. “Now, would you agree that after Issue 3, city council has jurisdiction to act on the petitions of the heterosexuals, but not on the petitions of the homosexuals for civil rights legislation?”
Michael Carvin rose quickly. “Objection. Mischaracterizes.”
“Overruled,” the judge said.
From the witness stand, the professor said, “This is getting a little bit out of my league.”
Six weeks later, Judge Spiegel struck down Issue 3 in a seventy-five-page decision, calling the ban on anti-discrimination laws for gays unconstitutional. “Despite the fact that a majority of voters may support a given law, rights protected by the Constitution can never be subordinated to the vote of the majority. While at times this may seem unfair, especially when deeply emotional issues are involved, indeed it is the fairest and most deeply rooted of all this nation’s rich traditions.”
The backers of Issue 3 quickly announced they would appeal.
“The big issue here is who is running this country,” Phil Burress told the Cincinnati Enquirer. “The government has gotten too big for its britches.”