The First Amendment's Petition Clause as an Alternative Basis for Challenging Voter Initiatives That Burden the Enactment of Anti-Discrimination Protection for Gays, Lesbians, and Bisexuals

The purpose of my remarks today is to suggest that the First Amendment-specifically, the Petition Clause of the First Amendment provides an alternative basis for vindicating gay, lesbian, and bisexual rights in certain cases. At least in the context of voter initiatives that seek to abolish anti-discrimination protection for sexual orientation, the Petition Clause is a promising alternative to equal protection and substantive due process. My objective here was merely to plant a seed: to identify an alternative basis for vindicating the rights of gays, lesbians, and bisexuals-especially when combatting homophobic voter initiatives like those in Romer and Cincinnati. It's my hope that-confronted by the new wave of voter initiatives that will likely follow in Cincinnati's wake-the Petition Clause will serve as a useful tool in fighting efforts to cripple the ability of gays, lesbians, and bisexuals to enact or restore antidiscrimination protection.