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In a significant victory for gay rights advocates, the Pennsylvania Commonwealth Court has reinstated an ordinance passed by the city of Allentown, Pa., that prohibits discrimination in housing, employment or public accommodations on the basis of gender identity or sexual orientation. The ruling by a unanimous three-judge panel in Hartman v. City of Allentown reverses the decision of Lehigh County Common Pleas Judge Alan M. Black, who struck down the ordinance on the grounds that it violated the city’s home rule charter. Writing for the court, Judge Renee Cohn Jubelirer found that the Pennsylvania Supreme Court “looks favorably on the autonomy of each municipality to provide protections to accommodate its citizens in the area of anti-discrimination.” Cohn Jubelirer, in a 27-page opinion joined by Judges Robert Simpson and Joseph F. McCloskey, rejected the arguments of a group of Allentown landlords and business owners who said the city had exceeded its powers under state law. The decision relied heavily on a December 2004 ruling by the Pennsylvania Supreme Court in Devlin v. City of Philadelphia that upheld a Philadelphia ordinance that extends worker benefits to same-sex “life partners” of city employees. In Devlin, she said, the high court held that “a municipality’s authority to enact anti-discrimination laws is derived from its police powers.” Cohn Jubelirer also rejected the plaintiffs’ argument that Allentown’s ordinance conflicts with the Pennsylvania Human Relations Act and is therefore pre-empted by it. “It is the policy of the Pennsylvania courts to disfavor a finding of pre-emption,” Cohn Jubelirer wrote, “unless the Commonwealth has explicitly claimed the authority itself, or unless there is such actual, material conflict between the state and local powers that only by striking down the local power can the power of the wider constituency be protected.” As a result, Cohn Jubelirer said, “there is no presumption that a state has pre-empted a field merely by legislating in it.” Under Pennsylvania Supreme Court case law, she said, the Legislature pre-empts a field “only where the state has retained all regulatory and legislative power for itself and no local legislation is permitted.” Cohn Jubelirer found that the PHRA “was not intended to be exclusive in the field of anti-discrimination.” Instead, she said, the text of the statute shows that the Legislature “intended to preserve anti-discrimination ordinances from pre-emption.” And the law’s legislative history, she said, “reveals that the General Assembly wanted to preserve local power to enact greater protections against discrimination.” Attorney Daniel J. Anders of Pepper Hamilton, who represented the city of Allentown in the appeal, said he was “pleased that the court upheld the right of fair-minded cities, like the city of Allentown, to adopt protections from discrimination based on sexual orientation and gender identity.” Joining Anders on the brief for Allentown were Pepper Hamilton attorneys Thomas B. Schmidt III, Christopher J. Huber, Michelle M. Marx and Nathan D. Stump. Anders also credited the support of a coalition of more than two dozen businesses, organizations, churches and individuals that supported the city in a friend-of-the-court brief, including Air Products and Chemicals Inc., PPL Corp., Grace Episcopal Church, the American Civil Liberties Union of Pennsylvania and the Women’s Law Project. The amicus brief was filed by attorneys Edward M. Posner and Viktoriya Meyerov of Drinker Biddle & Reath and MaryCatherine Roper of the ACLU, along with former federal judge Edward N. Cahn of Blank Rome’s Allentown office and Cynthia J. Schneider of the Center for Lesbian and Gay Civil Rights. Attorney Randall L. Wenger, who represented plaintiffs Gerry Hartman, John Lapinski, Robert Roycroft and Debbie Roycroft, said no decision has yet been made about whether to appeal the ruling. Wenger said Cohn Jubelirer’s opinion employed “an outcome-based rationale.” “I think it’s difficult for the judiciary to closely follow legal precedent and closely follow statutes if it means they have to make a decision that would appear that they don’t respect homosexuals as a group,” Wenger said. The plaintiffs, he said, had opposed the ordinance because of their Christian moral beliefs about homosexuality. In the lower court’s decision, handed down in June 2004, Black held that the ordinance violated �2962(f) of the Home Rule Law, which prohibits municipalities from passing laws that impose duties on businesses and employers. On appeal, Allentown argue that �2962(f) should be read narrowly and extend only to “affirmative” duties placed on businesses and employers by home rule municipalities. An anti-discrimination law, the city argued, is a “negative” duty and therefore does not violate the state law. Cohn Jubelirer agreed, saying, “a narrow reading of Section 2962(f) of the Home Rule Law is consistent with the Legislature’s intent, expressed elsewhere, that the phrase ‘regulation of business’ means affirmative duties being placed on businesses.” The law was designed to give home rule municipalities more authority than non-home rule municipalities, said Cohn Jubelirer. As a result, she said, “we do not believe that Section 2962(f) is intended to place more stringent limitations on home rule municipalities than its counterparts do in non-home rule municipalities.” Cohn Jubelirer said there was “no evidence that Allentown designed or intended to impose affirmative duties of business management on businesses.” Instead, she said, the ordinance “is intended to protect Allentown’s citizens from discrimination.” The Associated Press contributed to this report.

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