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March 4, 1999

Briefs outline differing arguments in case about same-sex benefits: The city's response

The Murphy administration is urging the city Human Relations Commission to reject Pitt's challenge to a city law that prohibits discrimination against gays an d lesbians.

In a brief filed last week with the commission, city attorneys disputed the University's argument that Pittsburgh and other Pennsylvania municipalities lack the authority to pass laws banning discrimination based on sexual orientation.

Lawyers for Pitt made the argument in fighting a complaint that Deborah Henson, a former Pitt legal writing instructor, filed with the commission in 1996. Henson alleges that the University violated the Pittsburgh Human Relations Act in denying health ben efits to her lesbian partner.

The city act prohibits discrimination in employment, including discrimination in compensation, on the basis of sexual orientation.

In a motion last November, asking the commission to dismiss Henson's claim, University attorneys said Pittsburgh has no right to enforce the law in the absence of a state human relations law mentioning sexual orientation.

Municipalities, Pitt lawyers wrote, lack the legal authority to add sexual orientation to the list of "protected categories" mandated by the Pennsylvania Human Relations Act. Those state-mandated categories include race, religion, sex and age, among other s, but not sexual orientation.

City attorneys disagree with Pitt's arguments.

Since 1901, Pittsburgh has had the authority to extend anti-discrimination protections to its citizens "as deemed necessary and appropriate to ensure the peace and good order of the community and to promote its welfare," city Solicitor Jacqueline R. Morro w wrote in a friend-of-the-court brief dated Feb. 22.

For example, she wrote, Pittsburgh enacted a fair housing law in 1958 to combat housing discrimination against racial minorities — five years before the state adopted a similar law.

A challenge to Pittsburgh's fair housing law was rejected in 1963 by the Court of Common Pleas of Allegheny County, which held that the city has the right to enact and enforce anti-discrimination laws to fight serious social problems, even if the state ha s not yet done so.

The city brief challenges Pitt's argument that the authority of Pittsburgh's Commission on Human Relations (CHR) flows from a 1966 provision to the state's human relations act. The 1966 provision authorized the creation of local commissions with powers an d duties similar to those exercised by the Pennsylvania Human Relations Commission.

But in fact, CHR had been in operation for 20 years at the time the state provision took effect, Morrow said. "The legislature's enactment [of the provision] did not alter, and certainly did not narrow, the CHR's authority, which, according to the Commonw ealth Court, continued to flow from the 1901 Charter Act" that empowered the city to determine what protections were necessary to promote the safety and well-being of its citizens, she wrote.

Pittsburgh's adoption of a home rule charter in 1976 only broadened the city's powers, according to Morrow. She quoted article 9, section 2 of the Pennsylvania Constitution: "A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time."

Pittsburgh amended its anti-discrimination ordinance to include sexual orientation in March 1990 following two years of public debate.

"During this period, the rights of sexual minorities were a subject of local as well as statewide concern," Morrow wrote. "By executive order on Jan. 20, 1988, Gov. Robert Casey prohibited discrimination on the basis of sexual orientation for state employees under his jurisdiction…Pittsburgh Mayor Sophie Masloff signed a similar executive order on March 27, 1989."

"There is no reason to believe," the city's brief continues, "that inaction at the statewide level is attributable to a statewide policy that would bar extending anti-discrimination protections to citizens on the basis of sexual orientation. The executive order of Gov. Casey is evidence to the contrary. Moreover, such a prohibition on lawmakers' authority to extend protection to a particular class of citizens is offensive to the United States Constitution."

The city's brief takes no stand on whether the University should offer health benefits to same-sex domestic partners of employees. The city does not provide such benefits to its own gay and lesbian employees.

— Bruce Steele


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