LOUSVILLE, Ky. (BP)–The U.S. Department of Justice filed a friend-of-the-court brief Aug. 15 on behalf of a local Kentucky gay-rights employment ordinance, pitting the federal government squarely against a Southern Baptist doctor.
The Justice Department’s brief was filed on behalf of the City of Louisville, which is being sued by J. Barrett Hyman. A gynecologist, Hyman claims that the gay-rights ordinance — which went into effect last year — is unconstitutional because it violates his First Amendment right to freedom of religion. Hyman is also a trustee of Southern Baptist Theological Seminary in Louisville, Ky.
It is believed to be the first time the Clinton administration has taken action in a local case. Francis J. Manion, senior counsel of the American Center for Law and Justice-Midwest, is representing Hyman in the suit.
Manion said the federal government’s support comes as a mild surprise but adds little real weight to the defense.
“They tell us that it is unprecedented, so I guess we’ll believe them,” Manion said. “It’s the first time I’ve heard of it. Their brief doesn’t really address any issues that the city and county and the ACLU [which has filed briefs in favor of Louisville] don’t address.
“It’s difficult to figure out exactly why they did this other than hoping it adds some prestige or influence to that side of the lawsuit. We would hope and we would expect that it would not in any way influence the court, the mere fact that the department of justice is getting into the case. I don’t see any new wrinkles that they’ve added. I don’t even really see their basis for doing it.”
In its brief, the Justice Department contends that if Hyman wins, “…other employees 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.”
Manion said the department’s concern is unfounded.
“The Department of Justice knows that can’t happen,” he said. “It can’t happen because, as they know, the courts have held that those other categories — race, religion, national origin and gender — are entitled to special protection under our laws. But no such ruling has ever been made on the issue of sexual orientation.
“The [federal] courts do not equate sexual orientation with race, religion, national origin or gender. The Department of Justice knows that. So it is absolutely legally impossible and unthinkable that somebody, if Dr. Hyman were to succeed in this case, that somebody could make the same argument and succeed in a case involving race, for instance, or gender. So, I think they are being disingenuous when they use that as the basis for jumping into his case.”
Louisville passed its gay-rights ordinance in January 1999 and Jefferson County followed suit in October. Both measures ban hiring on the basis of sexual orientation. The Jefferson County ordinance also bars hiring based on sexual orientation in public accommodations and in housing.
In July, Manion filed motions for a summary judgment and the defendants have responded, he said. Manion hopes the case will be ready for a decision by mid-September.
Leslie Cooper, attorney for the American Civil Liberties Union told the Associated Press that if the law cannot be enforced, “All federal civil rights laws would be in danger. There can be a religious basis for all sorts of discrimination.”
Manion confirmed that a death threat was phoned — into Hyman’s medical office Thursday and that unsolicited gay pornography had been mailed to his home in the weeks following the suit. The attorney said he has reported both incidents to the Federal Bureau of Investigation.
“Dr. Hyman is not out to do anything to gays,” Manion said.
“All he is saying is that ‘I have a medical practice here. I also have certain religious beliefs. Aren’t I free to operate my medical practice in accord with my religious belief? …’ That’s all he’s saying. They’re not content to leave him alone, or any employer alone.”
Hyman was out of town and unavailable for comment.
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