Open Letter from Local Attorneys and Law Professors on the Legality of the Macon-Bibb

Comprehensive Civil Rights Ordinance

During Macon-Bibb County Commission hearings on the Comprehensive Civil Rights

Ordinance last week, those who spoke in opposition claimed the ordinance was “illegal”
or would infringe on individual constitutional rights. We write to clarify that the
ordinance, in fact, is neither illegal nor unconstitutional. This is apparent from the
hundreds of anti-discrimination laws throughout the United States, which have never
been challenged as “illegal.” Many cities and counties in Georgia and other states
prohibit discrimination in employment, services, housing, and other areas, including
many that cover sexual orientation and gender-identity based discrimination. (In
Georgia, the list includes Atlanta, Brookhaven, Chamblee, Clarkston, Decatur, Doraville,
Dunwoody, East Point, Hapeville, Savannah, Statesboro, Tybee Island, and Valdosta.)
Many states—including traditionally conservative states such as Utah and Iowa— also
have such anti-discrimination laws.

This summer, the U.S. Supreme Court held that Title VII of the federal Civil Rights Act
of 1964 covers such discrimination in employment. As Justice Gorsuch wrote in that 6-3
opinion, “it is impossible to discriminate against a person for being homosexual or
transgender without discriminating against that individual based on sex.” U.S. Circuit
Courts, including the Eleventh Circuit Court of Appeals, also have stuck down gender-
identity based discrimination under both the Equal Protection Clause and Title IX. None
of these cases questioned the validity of laws prohibiting discrimination in employment,
schools, or services based on sexual orientation or gender identity.

The mistaken impression that antidiscrimination laws covering sexual orientation and
gender identity are somehow “illegal” comes from the extensive hype surrounding
Masterpiece Cakeshop, the case in which a Colorado antidiscrimination law was
challenged by a baker, who objected to making a specialized wedding cake for a gay
couple. Yet the Court did not overturn Colorado’s law in that case. Rather, it held that
Colorado commissioners had demonstrated anti-religious bias in the baker’s specific
case, including rhetoric condemning religion as the justification “for all kinds of
discrimination throughout history, whether it be slavery … [or] the holocaust.”

While condemning the specific treatment of that baker, the Supreme Court confirmed
that “Colorado law can protect gay persons, just as it can protect other classes of
individuals, in acquiring whatever products and services they choose on the same terms
and conditions as are offered to other members of the public,” explaining that “while …
religious and philosophical objections are protected, it is a general rule that such
objections do not allow business owners and other actors in the economy and in society
to deny protected persons equal access to goods and services under a neutral and
generally applicable public accommodations law.” The problem in the baker’s case was
the commission’s failure to exhibit religious neutrality.

The civil rights ordinance on the Mayor’s desk is just that – neutral and generally
applicable. There is no constitutional doubt about the general validity of laws
prohibiting discrimination in employment or services, including discrimination on the
basis of sexual orientation and gender identity.

The Comprehensive Civil Rights Ordinance will protect citizens of Macon-Bibb and
allow all taxpayers, regardless of race, religion, color, sex, disability, national origin,
ancestry, sexual orientation, gender identity, or military status, equal access to the
goods and services that our principled community offers.

The citizens of Macon-Bibb deserve to be afforded this opportunity. The ordinance is

legal, and we very much hope that Mayor Reichert will respect the majority vote of the
Commissioners and sign the ordinance into law.

Sarah Gerwig-Moore
Jonathan Simpson
Scott Titshaw
Emily R. Wright
Charles E. Cox, Jr.
Suzianne D. Painter-Thorne
Kevin Bradley
David Ritchie
Billie Jo Kaufman
Pamela A. Wilkins
Cathren Page
Lance Simon
Cathy Cox
Timothy W. Floyd
Daisy Hurst Floyd
David T. Dorer
Jacqueline Hightower
Tim Saviello
Rachel Chmiel
Tina Hunt
Monica Roudil
Mark F. Dehler
Samuel F. Hart, Jr.
Ana G. C. Wright
Tomieka R. Daniel
Richard W. Creswell
Amy Dever
Cheferre Young
Kenneth E. Barton
Lindsay E. Simmons
Ashley Cameron-Bivins
Franklin J. Hogue
Nancy Terrill
Gary J. Simson
Ashley Deadwyler-Heuman
Nyonnohweah Seekie
Trineice Hill