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Court Hears Lawsuit Against Arlington Commission

Local business owner hopes judge will strip county’s Human Rights Commission of power to investigate discrimination based on sexual orientation.

Next week an Arlington Circuit Court judge is expected to rule whether a local business owner can continue a lawsuit against the county’s Human Rights Commission for allegedly exceeding its authority under state law.

Tim Bono, the owner of Bono Film and Video, contends that the commonwealth of Virginia has not given the Arlington County Human Rights Commission the power to investigate complaints of discrimination based on sexual orientation.

Last April, the Human Rights Commission found that Bono had discriminated against a county resident when he refused to reproduce two gay-themed videos for her. He had declined to duplicate the videos because they went against his Christian beliefs, Bono said.

Bono filed the lawsuit against the commission and County Board in early June, and the following day the commission reconsidered and dismissed their case against Bono. In its decision, the commission acknowledged that the county’s human rights ordinance does not prohibit discrimination based on the content of materials.

Though the investigation against him was dropped, Bono has proceeded with the lawsuit to prevent the commission from looking into similar claims in the future.

"County residents shouldn’t have to live in fear that the county will launch an investigation with power it doesn’t have," said Rena Lindevaldsen, who represents Bono on behalf of the Lynchburg-based law firm Liberty Counsel. The firm describes its mission as "advancing the sanctity of human life and the traditional family."

THE HUMAN RIGHTS COMMISSION was formed in 1989 to investigate allegations of unlawful discrimination in the county based on race, religion, disability, age and several other categories.

While it has no power to enforce rulings, the commission attempts to resolve the conflict between parties. If the individuals will not comply with a decision, the commission can bring the case before the County Board to take action. Bono’s case was dismissed before it got to the County Board.

In 1987, the Virginia General Assembly passed a statute outlining on what grounds local human rights boards could look into complaints. Sexual orientation was not on the list.

Yet six years later, Arlington granted its commission the power to examine cases of possible discrimination based upon sexual orientation. The Virginia Attorney General at the time wrote an opinion that Arlington’s commission was not limited to investigating the specific categories of discrimination outlined by state statute, Louise DiMatteo, assistant county attorney, argued in a preliminary court hearing last Wednesday.

Bono’s lawyers believe that by examining sexual orientation discrimination claims, the commission violates 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. "The county clearly doesn’t have that authority."

THE CONTROVERSY BEGAN in May, 2005, when Lilli Vincenz sent an email to Bono Film and Video asking if they would reproduce documentaries on two of the nation’s first gay pride parades.

According to court documents, Bono declined to duplicate the films because they involved the "gay agenda," and went against his religious beliefs. The company’s Web site states that Bono Film will refuse to reproduce work that "runs counter to our Christian and ethical values."

At no time during the email exchange did Vincenz disclose her sexual orientation, court records show.

Later that month Vincenz filed a complaint against Bono Film with the commission, and in March 2006 the commission held a public hearing. The following month the commission found Bono had discriminated against Vincenz on the basis of her sexual orientation.

Since Bono Film discriminated against the content of the video, not Vincenz herself, it did not violate any ordinance and no case should have been brought forward, said County Attorney Stephen MacIsaac.

Now that the commission’s investigation against Bono has been dismissed, the company’s lawsuit no longer has merit and should be thrown out, MacIsaac told Circuit Court Judge Benjamin N. A. Kendrick.

"All the issues germane to them have gone away, but they still want to go after the commission," MacIsaac said.

Bono’s lawyers contend that the lawsuit should go forward because Bono’s business was potentially harmed by the investigation and that he is a county taxpayer.

MacIsaac retorted that Bono had to demonstrate "an interest distinct from the public" to proceed with the lawsuit, which was no longer true now that the Human Rights Commission has dropped its case against him.

Judge Kendrick is expected to rule next week whether the lawsuit can proceed to a full hearing.

County Board member Jay Fisette said he was very concerned that the judge might rule against the county and the commission would not longer be able to examine claims of discrimination based on sexual orientation.

"I wish we lived in a state where local governments had the authority to make local laws consistent with their community’s values," he said.