An Arlington County Circuit Judge has thrown out a lawsuit by a local business owner against the county’s Human Rights Commission, enabling the group to continue investigating complaints of discrimination based on sexual orientation.
Judge Benjamin N. A. Kendrick ruled that Tim Bono, owner of Bono Films and Video, did not have standing to proceed with his lawsuit, because the commission had dismissed its case against him.
Bono’s suit contended that the commission exceeded its authority under state law by looking into his refusal to reproduce documentaries on two of the nation’s first gay pride parades.
In April the commission decided that Bono had discriminated against Lilli Vincenz based upon her sexual orientation. He had declined to copy the videos for Vincenz because they were part of a "gay agenda" and went against his Christian beliefs, according to court documents.
After Bono filed suit against the commission it reversed its earlier ruling, acknowledging that Arlington’s human rights ordinance does not prohibit discrimination based on the content of materials. Because the commission had dropped its investigation against him, Bono no longer had "a direct interest" and therefore had "no actual case or controversy exists between the parties," Kendrick wrote in his ruling.
County lawyers lauded the judge’s decision to prevent Bono from moving forward with his lawsuit. "The judge essentially said that unless you are really the subject of an investigation under the ordinance, you are not in position to challenge the ordinance," said County Attorney Stephen MacIsaac.
Though the case against him was dropped, Bono proceeded with the lawsuit to prevent the human rights commission from exploring similar claims in the future. Yet Kendrick retorted that "the mere threat" that the commission might in the future pursue a case concerning content-based sexual orientation discrimination was "too speculative" for him to allow the suit to continue.
Rena Lindevaldsen, Bono’s lawyer, said she her client was disappointed by the ruling and would be filing an appeal because the judge did not address all of their arguments.
"Being a taxpayer in Arlington gave Bono Films standing to challenge the ordinance," Lindevaldsen said.
But the judge disagreed with that line of reasoning. "You’ve got to have a little more personalized interest than just being a taxpayer," MacIsaac added.
KENDRICK DID NOT RULE on the larger question of whether or not the Arlington human rights commission has the authority to investigate complaints of sexual orientation discrimination.
In 1982 the Virginia General Assembly passed legislation enabling Arlington to set up such a commission to look into all types of discriminatory practices, MacIsaac said.
It was not until 1989, however, that the county actually established the commission, and in 1992 Arlington explicitly granted its commission the power to examine cases of possible discrimination based upon sexual orientation.
In 1987, the Virginia General assembly passed a statute outlining on what grounds local human rights board could look into complaints. Sexual orientation was not included on the list.
Bono’s lawyers believe that by examining sexual orientation discrimination claims, the commission violates the pretense of the Dillon Rule, which stipulates that localities have no rights except what the state legislature explicitly grants them.
"Nowhere is there a statute that allows them to prohibit sexual orientation discrimination," Lindevaldsen said in court in September. "The county clearly doesn’t have that authority."
County attorneys point out that in 1993, the Virginia Attorney General wrote an opinion that Arlington’s commission was not limited to investigating the specific categories of discrimination outlined by state statute.
"We have based [the commission’s authority] upon the original statute, which differs from the enabling authority of other localities in the state," MacIsaac said. "We think that we have a basis from which" to examine allegations of sexual orientation discrimination.
Vincenz said she was glad to hear that Bono’s lawsuit was dismissed and that the human rights commission’s powers would not be curtailed. But she doubts the controversy will end here. Instead, she expects right-wing organizations to look for other chances to strip the county’s human rights commission of its power to explore allegations of sexual orientation discrimination.
"I think whenever they find an opportunity they will pursue it," Vincenz said. "I don’t know what will happen when they have a different kind of suit that can’t be dismissed."