Tim Morris, et al


Beverly Hill (Alachua County)

Eighth Judicial Circuit Court

On November 8, 1994, the voters of Alachua County, Florida, passed an amendment to their county charter. Amendment One, as it was known, prohibited the Board of County Commissioners from adopting "any ordinance creating classifications based on sexual orientation, sexual preference, or similar characteristics except as necessary to conform county ordinances to Federal or State law." The homosexual community filed suit challenging the constitutionality of Amendment One.

This case would test the reasoning of the Supreme Court in Romer v. Evans, where the Court held that such ordinances impermissibly disadvantaged homosexuals. The Romer Court had ruled that state ordinances of this type placed an undue burden on this "class" of individuals. A statewide ban on favorable legislation would have left the homosexual community with only one option to "redress their grievances." In order to overturn Colorado’s ban, they would have had to appeal to the voters of the entire state to pass a new amendment overturning the ban. This was declared to be overly burdensome on the group. The Alachua County amendment would be completed at the county level, so the recourse would be to the citizens of the county. This would appear, to most rational people, far less burdensome than the Romer standard, yet the Circuit Court found that the same fundamental right to "equal participation in the political process" that was violated in Colorado was also violated in Alachua County.

The National Legal Foundation filed suit in the Alachua County case on behalf of Concerned Citizens of Alachua County (CCAC). The NLF argued that Alachua County was governed by a Home Rule Charter, and as such the people of the county have ultimate authority for establishing their governing laws provided they do not conflict with federal or state statutes. There was nothing in Amendment 1 that violated any federal or state statutes, so Amendment 1 must be constitutional. They further argued that homosexuals were protected under the states general protection laws and no special recognition of them as a class was necessary to prevent harmful discrimination and physical attacks. Ordinances passed by the Board of County Commissioners that were overturned by Amendment 1 had, in effect, given homosexuals special rights that were not accorded to other non-minority citizens.

The NLF argued that there were clear differences between Amendment 1 in Alachua County and Amendment 2 in Colorado. Amendment 2 had been broad and sweeping; Amendment 1 was narrow and focused. Amendment 2 had carried specific language about homosexuals, lesbians, and bisexuals; Amendment 1 targeted no one. Amendment 1 stood only for the proposition that sexual orientation, whether heterosexual, homosexual or bisexual, could not be used to grant protected class status to an individual. Amendment 1 put all citizens of Alachua County on a level playing field.

The Circuit Court failed to agree. The court found in Amendment 1 the same animus, or hatred, that the Supreme Court had found in Colorado's Amendment 2. It found that the voters of Alachua County had acted out of hatred toward homosexuals as a group in passing Amendment 1, to bar them from participation in the political process and deprive them of basic social standing. The court held that by singling out "sexual orientation" as a defining characteristic Amendment 1 had been a direct attempt to discriminate against homosexuals. The court also refused to see the difference between a state ballot initiative and that of a county, and decided the Alachua County case according to the same strict scrutiny standard that the Supreme Court had used in deciding Romer v. Evans. In Romer, the Court found, or rather invented, a fundamental right to participation in the political process to be violated by Colorado's Amendment 2. Its holding was that Amendment 2 had unduly burdened homosexuals by forcing them to seek redress from the voters of the entire state, rather than their locally elected representatives. The NLF argued that the decision in Romer was not a controlling factor in Alachua County because Amendment 1 did not impose the same burden on homosexuals that the Supreme Court found in Colorado. The court in Alachua County saw no difference. The Florida court ruled that the intent behind Amendment 1 was a "bare desire to harm a politically unpopular group," quoting from the Romer opinion.

In the Alachua County decision, the court held that homosexuals as a group should be granted protected status as a disadvantaged minority. The Florida court followed the lead of the U.S. Supreme Court in failing to protect the right to free association of all individuals who hold a moral objection to homosexuality.

The root of Amendment 1, as well as Colorado's Amendment 2, was a desire by citizens to protect themselves and their property from individuals whose moral behavior is in opposition to their own religious beliefs. Both of these court decisions are, in fact, violations of the First Amendment guarantee of freedom of religion. The courts have ruled that a person may not refuse housing, employment or other public services to any individual based on their immoral behavior. In other words, a Christian who believes that homosexuality is a sin against God and man may not refuse to rent property that he owns to individuals who will likely use his property as a base for their sin.

The decision of the Circuit Court became the final statement in this case when Alachua County chose not to appeal. Although this decision now controls future legal action in the Eighth Judicial District of Florida, it is the controlling decision only in that district. The NLF was prepared to help with an appeal in this case, and remains willing to help other counties and municipalities fight for their right to self-government. The Supreme Court has said that states may not ban homosexual "preference" legislation, but it has not imposed the same ban on counties and cities.

In the Gospel of Matthew, Jesus is recorded as saying, "If anyone will not welcome you or listen to your words, shake off the dust of your feet when you leave that home or town. I tell you the truth, it will be more bearable for Sodom and Gomorrah on the day of judgment than for that town." (Matthew 10:14-15) It seems almost poetic justice that the Scriptural home of sodomy and other deviant sexual behavior will be more tolerated than those future towns, and we might add judges, who reject the truth.



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© 2006 by the National Legal Foundation & Minuteman Institute