Observed since 1980, the one year anniversary of the first National March on Washington for Lesbian and Gay Rights, National Coming Out Day is a day for lesbian, gay, bisexual, transgender or queer people to be proud of who you are and your support for LGBTQ equality. It is also a day for LGBTQ+ allies to come out as supporters of LGBTQ+ Pride and truly equal rights.
The foundational belief of National Coming Out Day is that homophobia thrives in an atmosphere of silence and ignorance, and that once people know that they have loved ones who are lesbian or gay, they are far less likely to maintain homophobic or oppressive views. As the Human Rights Campaign states, “Coming out — whether it is as lesbian, gay, bisexual, transgender or queer — STILL MATTERS. When people know someone who is LGBTQ, they are far more likely to support equality under the law. Beyond that, our stories can be powerful to each other.”
I am also proud that on my motion, brought with City Councilmember Farrah Khan, the Irvine City Council unanimously repealed and removed a section of the municipal code (known as Measure N) that had prohibited any anti-discrimination protections for people based on their sexual orientation.
As the Voice of OC noted , “Over the last year, Irvine has seen a dramatic shift in its recognition of the LGBTQ+ community after widespread calls from the public for renewed action to acknowledge the community. In June 2019, the panel voted against flying the pride flag during pride month, with [Councilmember Mike] Carroll referring to the flag as a ‘ spectacle of divisiveness.’ . . . But last month, the council reversed its position, voting 4-1 to fly the flag over City Hall for the remainder of June and to make it an annual occurrence, flying from Harvey Milk Day (May 22) to the end of pride month. The city also officially recognized pride month for the first time this June two weeks ahead of the flag vote. The City Attorney questioned whether we had the authority to repeal the anti-LGBTQ ordinance. The council decided to move forward with the vote I noted that the only challenges that could potentially come to their decision would be a lawsuit calling for the legislation to be restored to the old city code. “Who in their right mind is going to come sue us to put this anti-LGBTQ language back in our code?” Fox said. “Lets clean this up and move on.”
Also for the first time this year, the Lavender Democratic Club of OC issued an OC LGBTQ+ Voting Guide. The Voting Guide recommends voting for candidates who have pledged their support for LGBTQ+ equality legislation, with a specific commitment to stand with our community in matters related to these public accommodations. public facilities, federally-funded programs, employment, housing, education, credit, marriage equality, disability and family leave, public safety, and the Equality Act.
At the Tues., July 14, 2020, Irvine City Council meeting, I will move to repeal Irvine’s anti-LGBTQ ordinance [Sec. 3-5-501 through 503] as unconstitutional under the Equal Protection Clause of the United States Constitution and in violation of California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”
Councilmember Farrah Khan has agreed to join me in putting this item on the July 14 Council agenda and in supporting this motion.
Most residents of Irvine do not know that our diverse and forward-thinking city has an ordinance on the books that specifically and explicitly denies anti-discrimination protection to people based on their sexual orientation.
In fact, most residents are shocked when they learn that the Irvine Municipal Code includes the following:
“Sec. 3-5-503. – City Council parameters.
Except as provided in section 3-5-502, the City Council shall not enact any City policy, law or ordinance that:
A. Defines sexual orientation as a fundamental human right.
B. Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.
C. Provides preferential treatment or affirmative action for any person on the basis of their sexual orientation.”
These provisions were added by Ord. No. 89-1, which was adopted as Measure N by 53% of the voters as an initiative on Nov. 7, 1989, overturning an Irvine Human Rights Ordinance enacted by the Council in July 1988 that prohibited discrimination based on sexual orientation.
According to Christina Shea, the initiative was needed because the earlier Human Rights ordinance gave “special legislative protection to the homosexual, bisexual and lesbian communities” and “homosexuality is characterized by a wide range of sexual perversions, varying degrees of promiscuity and a disproportionate percentage of sexually transmitted diseases.”
This anti-LGBTQ ordinance violates both the Equal Protection Clause of the United States Constitution and California’s Unruh Civil Rights Act.
In Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court ruled that the Equal Protection Clause of the Constitution prohibits a state from banning LGBTQ people from seeking “specific legal protection from injuries caused by discrimination.”
The facts of Romer v. Evans are as follows: after various cities and counties in Colorado enacted laws prohibiting discrimination based on sexual orientation, the State of Colorado, through a ballot initiative, amended its state constitution to “prohibit all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians.” As the Supreme Court explained, under the amendment, “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”
The Supreme Court declared that the Colorado constitutional amendment was based upon animosity toward homosexual people and lacked a rational relation to any legitimate governmental purpose. Accordingly, the Court determined that Colorado’s constitutional amendment violated the Equal Protection Clause of the 5th Amendment of the U.S. Constitution, applicable to the states through the 14th Amendment.
Like the Colorado constitutional amendment that the Supreme Court invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance attempts to prohibit local government action “designed to protect . . . homosexual persons or gays and lesbians” [i.e., protects people based on “sexual orientation.”] and like the Colorado constitutional amendment invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination.”
Accordingly, Romer v. Evans renders Irvine’s anti-LGBTQ ordinance unconstitutional.
Moreover, not only is Irvine’s anti-LGBTQ ordinance unconstitutional, it also clearly contradicts and is superseded by California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”
Because state law supersedes any city law or local ordinance, the Unruh Civil Rights Act’s prohibition of discrimination on the basis of sexual orientation anywhere in California means that Irvine lacks the power to declare that “the City Council shall not enact any City policy, law or ordinance that: Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.”
Irvine anti-LBGTQ initiative was one of several ballot measures across the nation in the late 1980s and early 1990s not only to seek to repeal existing anti-discrimination ordinances, but to proactively prohibit any local unit of government from ever passing such ordinances in the future.
Hence, the Irvine anti-LGBTQ ordinance includes provisions that purport to make it extremely difficult for a future Irvine City Council to repeal it. According to the ordinance, “Any law or ordinance pertaining to Section 3-5-503 may only be enacted by obtaining the approval of a majority of the voters of the City of Irvine voting on the measure at a regular or special election. Such a measure may only be placed on the ballot by citizen’s initiative or a two-thirds majority vote by the City Council.” [Sec. 3-5-502.].
The Supreme Court in Romer v. Evans made clear that it is an unconstitutional violation of the Equal Protection Clause to single out LGBTQ people for special burdens. including burdening them with special difficulties in enacting anti-discriminatory laws. According, it is clear that the procedural provisions of Irvine’s anti-LGBTQ ordinance — requiring a 2/3 vote of the Council and then a ballot initiative for repeal — is again a violation of the Equal Protection Clause of the 5th and 14th Amendments because it is designed to make passage of protections against discrimination based on sexual orientation especially burdensome and difficult.
The California Legislature dealt with this very issue in its repeal of the unconstitutional sections of Prop 187 by Senate Bill 396 (2014) by a majority vote of the Legislature without a vote of the entire electorate.
As the Judicial Committee of the California Senate noted, “Under existing law, California’s Constitution only authorizes the Legislature to amend or repeal initiative statutes by way of another statute that becomes effective only when approved by the electors –unless the initiative statute permits amendment or repeal without their approval. (Cal. Const., art. II, Sec. 10, subd. (c).) This bill [SB 396] seeks to repeal several state statutes implemented upon voter approval of Proposition 187, which generally prohibited the provision of various benefits to undocumented aliens. That proposition did not authorize the Legislature to amend or repeal its provisions without voter approval.”
Nevertheless, the Judicial Committee found that the Legislature had authority to repeal the unconstitutional sections of Prop 187 without a vote of the entire electorate. It reasoned that because the bill did not modify or repeal any provisions of Prop 187 except those that are unconstitutional and therefore unenforceable, it did not make any change in existing law. Accordingly, “SB 396 would not impermissibly repeal or amend the initiative; rather, it would merely update California statutes to accurately reflect current law.” The bill passed the Assembly and the Senate with only a single No vote.
The same circumstances exist here.
Like the parts of Prop 187 repealed by a simple majority vote of the Legislature in 2014, the anti-LGBTQ ordinance is unconstitutional and enforceable. Like the unconstitutional parts of Prop 187, although Irvine’s anti-LGBTQ ordinance is unconstitutional and unenforceable, its language remains on the books. Keeping this discriminatory language on the books, “causes confusion and harmful outcomes . . . [Therefore], it is fitting that [we] expressly acknowledge the detrimental impact of the discriminatory [language] by removing its stain from the state’s statutes.”
That is what our City Council needs to do now, and what the precedent of SB 396 gives us clear authority to do: “expressly acknowledge the detrimental impact of the discriminatory [language of Sec. 3-5.501-503] by removing its stain from the [City’s Code.]”
In addition to being unconstitutional and in violation of superseding state laws, Irvine’s anti-LGBTQ ordinance is a cruel and embarrassing relic of a more prejudiced time.
Does Irvine want to remain on record as being one of the very few cities in America, and indeed the world, that still officially discriminates against people based on their sexual orientation? I hope not.
For all of these reasons, I will move to repeal Irvine’s anti-LGBTQ ordinance.
As noted above, Councilmember Farrah Khan has agreed to join me in putting this item on the next Council agenda for Tues., July 14, 2020, and in supporting this motion.
If you agree with us, please tell Mayor Christina Shea and the rest of the Irvine City Council that Irvine’s anti-LGBTQ ordinance [Sec. 3-5-501 through 503] needs to be repealed NOW.
Contact the Mayor and the Irvine City Council by email here.