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United States v. City of Philadelphia

argued: June 16, 1986.

UNITED STATES OF AMERICA
v.
THE CITY OF PHILADELPHIA; THE PHILADELPHIA COMMISSION ON HUMAN RELATIONS; AND BARBARA W. MATHER, PHILADELPHIA CITY SOLICITOR, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION V. THE CITY OF PHILADELPHIA COMMISSION ON HUMAN RELATIONS, PHILADELPHIA LESBIAN AND GAY TASK FORCE, RICHARD BROWN, LESBIANS AND GAYS AT PENN, LARRY GROSS, LOIS ROTHENBERGER, JIM BAHR, KEN BLOCHOWSKY, PETER ANTONY, ROBIN SWEENEY, AND ILSE DE VEER, PROPOSED INTERVENOR-DEFENDANTS, APPELLANTS, CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS; AND BARBARA W. MATHER, PHILADELPHIA CITY SOLICITOR, APPELLANTS



Appeals from the United States District Court for the Eastern District of Pennsylvania.

Author: Seitz

SEITZ, Circuit Judge.

The City of Philadelphia, the Philadelphia Commission on Human Relations, and Barbara W. Mather, the Philadelphia City Solicitor, appeal from a final order of the district court granting summary judgment in favor of the United States of American ("the United States" and Temple University ("Temple"). The Philadelphia lesbian and Gay Task Force, Lesbians and Gays at Penn, and a number of individuals (collectively "the Task force") appeal from and order of the district court denying their motion to intervene as defendants. This court has jurisdiction over these appeals by virtue of 28 U.S.C. § 1291.

I.

A. The Philadelphia Administrative Proceedings

The Temple School of Law ("the Law School") operates a Placement Office that arrange interviews between its students and prospective employers. Approximately 100 employers accept the Law School's invitation to participate in this program each year, including the Judge Advocate General Corps of the Army, Navy, and Marine Corps (collectively "the J.A.G. Corps"). Participating employers select 75% of the students to be interviewed after screening their students to be interviewed after screening their resumes; the remaining 25% are randomly selected by the Placement Office.

In the fall of 1982, two law students, Richard Brown and Loretta DeLoggio, sought interviews with the J.A.G. Corps; neither Brown no DeLoggio was selected for an interview. Shortly thereafter, they each filed a complaint with the Philadelphia Commission on Human Relations ("the Commission"), alleging that the Law School had violated the Philadelphia Fair Practices Ordinance, Philadelphia Code §§ 9-1101 to 9-1110 ("the Ordinance") because the Placement Office referred students to employment interviews conducted by the J.A.G Corps while knowing or having reason to know that the Army, Navy, and Marine Corps do not accept homosexuals as members of the uniformed services.*fn1 The Commission subsequently issued its own complaint against the Law School, again alleging that it had violated the Ordinance by permitting the J.A.G. Corps to participate in the interviewing process conducted by the Placement Office.

A hearing on the Commission's complaint was held, at which the United States appeared as amicus curiae and argued that enforcement of the Ordinance against the Law School based on the hiring practices of the Army and Navy would violate the supremacy clause. The Commission, nonetheless, ordered the Law School to "cease and desist from allowing the use of its Placement Office facilities by the" J.A.G. Corps ("the Order"). In an opinion accompanying the Order, the Commission found that the Law School had committed three "unlawful employment practices": First, it had violated section 9-1103(A)(2) by "establishing, announcing and following the policy of permitting the use of its placements facilities" by representatives of the J.A.G. Corps; second, it had violated section 9-1103(A)(4) by "referring person for employment" to the J.A.G. Corps, and third, it had violated section 9-1103(A)(7) by "aiding and abetting" the J.A.G. Corps in executing their policy of discriminating against persons based on their sexual orientation.*fn2

B. The District Court Proceedings

Shortly after the Commission ordered the Law School to "cease and desist" from cooperating with the J.A.G. Corps, the United States filed a complaint in the district court alleging that the Ordinance, as applied to the Law School by the Commission, violated the supremacy clause. At the same time, Temple filed a complaint alleging that the Order violated both the supremacy clause and the first amendment.

The United States and Temple subsequently filed motions for summary judgment. The Commission (and the other named defendants) opposed both motions, and filed a cross-motion for summary judgment.*fn3 The district court held a hearing on these motions and, at its conclusion, granted summary judgment to the United States and Temple. The court essentially found that the Commission's order constituted an attempt to do indirectly what it was without power to do directly--i.e., "to regulate . . indirectly through Temple University the conduct of the United States, insofar as it adheres to its policy of discrimination against homosexuals." As a result, the district court entered an order prohibiting the Commission from "adjudicating any complaint or taking any adverse action under the (Ordinance) against any person, corporation, association or group based on the Commission's objection to the policy of the United States in discrimination on the basis of sexual orientation in its military recruitment efforts." It is this order that forms the basis for the Commission's appeal in No. 85-1604.

II.

In the brief opinion accompanying its order, the district court concluded that the Supremacy clause prohibits any state or local agency "from interfering with or attempting to frustrate the willingness of private citizens or entities or public entities from participating with the United States to carry out a joint effort protected under the constitution." The Commission and the Task Force, together with the American Civil Liberties Union of Greater Philadelphia ("the A.C.L.U.") and the Lambda Legal Defense and Education Fund, Inc. ...


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